Is Alabama Chief Justice Roy Moore Like Orville Faubus or Willis Van Devanter?

by Michael Dorf

Yesterday the buzz was all about the SCOTUS refusal to stay the same-sex marriage order in Alabama and the mixed reaction thereto by Alabama probate judges caught between the federal courts and a directive from Alabama Chief Justice Roy Moore. My own comments thereon can be found in NY Times, LA Times, the Wall Street Journaland a widely published AP story (e.g., here).

In this post, I want to consider a puzzle raised by Moore's directive at which I hint in the Times quote: Assuming that Moore is correct that lower federal court rulings do not generally bind state courts, does that have any relevance with respect to marriage licenses? Or, as the title of today's post indicates: Is Moore simply defying federal law (qua Faubus) or is he a sophisticated, albeit conservative, practitioner of the art of judicial federalism (qua Van Devanter)?

Let's entertain the possibility that CJ Moore is a latter-day Van Devanter. Despite his past history of defying the federal courts, the prima facie argument for Moore as master of procedural federalism is pretty good. It begins with the proposition--which I defended on this blog last fall (here and here), that decisions of lower federal courts on questions of federal law are not binding precedents for state courts. Then, CJ Moore adds that Alabama probate judges are within the judicial branch in Alabama, and thus not subject to supervision by the Attorney General, the defendant in the lawsuit that resulted in the invalidation of the state SSM ban. Thus, Judge Moore concludes, the probate judges are not bound by either precedent or preclusion to follow the district court order, and so he can order them to follow state law until it's invalidated by his court or by the SCOTUS.

So far, so good, which is why I said in the Times story linked above that I thought Judge Moore had "some cards to play." But I went on to say that he holds a losing hand because couples who want to marry could simply sue the probate judges in federal court. I continue to think that's right, but I want to raise an objection. Ordinarily, if a party is dissatisfied with an outcome in state court, she needs to appeal within the state court system rather than suing the state court judge in federal court. Indeed, the federal Anti-Injunction Act forbids federal courts from staying state court proceedings. So why do I think that a same-sex couple can sue a state probate judge in federal court?

To begin, as a technical matter, the Anti-Injunction Act doesn't apply, as it only forbids federal court orders that "stay proceedings" in state courts. In suing to enjoin a state probate judge to grant a marriage license, a same-sex couple would not be seeking to stop any ongoing proceeding. Furthermore, even if the Anti-Injunction Act did apply, plaintiffs suing to vindicate their civil rights under 42 U.S.C. 1983 would fall within an exception recognized by Mitchum v. Foster.

To be sure, there are also judge-made doctrines of abstention and comity that limit the ability of federal courts to interfere with state courts, but none of them would appear to apply here for the fundamental reason that a suit to compel Alabama probate judges to issue marriage licenses would not interfere with the performance of any adjudicatory duties by the probate judges.

In Alabama, probate judges issue marriage licenses. In other states, county clerks or other administrative officials grant such licenses. Whether such officials are subject to suit in federal court should not depend on whether the officials are technically considered part of the state judicial or executive branch, because (except for limited purposes not relevant here), states may structure their branches of government however they like. What matters is the function performed by the official being enjoined.

Here's a hypothetical to illustrate my point. Suppose that Alabama classifies all state, county, and municipal police officers as "judicial" officers, going so far as to call them "judges." Now suppose that "Judge Davis" (i.e., police officer Davis) uses excessive force in arresting suspect Peters. Is the fact that Davis has the word "Judge" in his title any obstacle at all to a federal court 1983 action against him by Peters? Certainly not. Again, what matters is the function the official performs, not the label the state chooses to attach to that official.

Does it matter that Alabama probate judges also perform adjudicatory functions? It's conceivable (but just barely) that the hybrid nature of a probate judge's duties might be relevant to whether she could be sued for money damages, because judges have absolute immunity for official acts, whereas executive officials only have qualified immunity. But even if the probate judge's absolute judicial immunity bled over a bit into her performance of non-adjudicatory functions, that would only be relevant to damages actions, not to actions for injunctive relief of the sort now contemplated in Alabama.

Accordingly, I conclude that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda.