MONTGOMERY, Ala. — Eight Alabama judges filed a brief this week in support of suspended Chief Justice Roy Moore, stating that the Court of the Judiciary (COJ) wrongfully and craftily suspended him for the remainder of his term since they did not have the required unanimity for removal.
Moore suspension for the duration of his term is “tantamount to the removal from office requiring the concurrence of all members of the Court of the Judiciary,” the judges wrote.
They also expressed concern that the COJ released information to the media prior to the ruling, and said the punishment sets a dangerous precedent.
“The severity of the punishment for the chief justice’s administrative speech in this particular case calls for modification by the appellate court lest judges misperceive that their judgment and the expression of that legal judgment must comport with a particular political and religious viewpoint, even when they state a valid, though arguable point of law,” the judges said.
The signees include Judges Tim Riley, T. Lee Carter, John Bentley, Mark Hammitte, Ashley McKathan, Jerry Stokes, Rusty Johnston and Frank McGuire III. Four are sitting justices and four are retired.
As previously reported, Moore is appealing his suspension and is expected to have his case heard by a special panel of retired judges next year.
Moore told reporters in October that the Court of the Judiciary (COJ) acted wrongfully in circumventing the rules by suspending him for the remainder of his term since there was not a unanimous vote to remove him from office. Under Alabama law, removal must be by a unanimous decision. There was only a unanimous vote to suspend Moore but not to remove him.
“It’s a de facto removal,” Moore said. “To have the Court of the Judiciary say that we can’t remove you because we didn’t have the votes, but we can suspend you for two-and-a-half years nearly (the rest of Moore’s term), that’s completely improper.”
“It has to be reversed for the sake of the judges and justices in our state or we’re going to warp the law and just let them skip over a unanimous vote for removal and say they can remove you for the rest of your term,” he opined.
As previously reported, the controversy surrounding Moore began in 2013 when two lesbians in the state sued Gov. Robert Bentley, Attorney General Luther Strange and Mobile County Probate Judge Don Davis—among others—in an attempt to overturn Alabama’s marriage amendment after one of the women was denied from adopting the other woman’s child.
In January 2015, U.S. District Judge Ginny Granade ruled in favor of the women, prompting Moore to send a memo to probate judges throughout the state, advising that they are not required to issue “marriage” licenses to same-sex couples as he believed that Grenade’s ruling only applied to the two women.
Moore also wrote a letter to Gov. Robert Bentley, urging him to “uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity.”
“Be advised that I will stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority,” he stated.
The Southern Poverty Law Center (SPLC) then filed a judicial ethics complaint against Moore over his letter to Gov. Bentley, and the homosexual activist group Human Rights Campaign (HRC) submitted 28,000 petition signatures to the JIC calling for Moore’s removal.
As confusion ensued over Moore’s letter to probate judges, one judge, John Enslen of Elmore County, asked the full Alabama Supreme Court for further guidance. In March 2015, six of the nine judges of the Alabama Supreme Court released a historic order halting the issuance of same-sex “marriage” licenses in the state. Moore recused himself from the matter and was not included in the order.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the 148-page order read. “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”
Three months after the Alabama Supreme Court issued its order, the U.S. Supreme Court ruled in Obergefell v. Hodges. The Alabama court did not immediately lift its order following the ruling as it took time sorting through the matter.
Therefore, in January, Moore sent another letter advising that the full court’s previous instructions remained in effect until it issued directives in light of the U.S. Supreme Court ruling in Obergefell.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” he wrote on Jan. 6.
But he also noted that his memo did not weigh in on how June’s U.S. Supreme Court ruling has impact on the Alabama Supreme Court’s directive, and said that it was not his place to make that determination.
“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court. That issue remains before the entire court, which continues to deliberate on the matter,” Moore wrote.
In March, the court finally issued its opinions on the matter, dismissing all outstanding cases before the bench.
In May, the Alabama Judicial Inquiry Commission (JIC) announced that it had filed ethics charges against Moore, and suspended the chief justice while he faced a trial before the COJ.
Moore argued during his trial that he had not issued any orders, but only a status update as the Alabama Supreme Court had not rescinded its previous order following Obergefell. The COJ did not believe Moore and found him guilty of all ethics charges, asserting that he had told judges to act contrary to the U.S. Supreme Court’s ruling.
“I would never tell anybody to disobey and order of a federal court; that’s not my job,” Moore said. “What I told [probate judges] was the injunction in effect remained valid until it was reversed by the Alabama Supreme Court, when in fact is has not been reversed to this day and that injunction is still in effect.”