Jared Mayer, JHU:
On January 26th, Judge Callie Granade of the U.S. District Court for the Southern District of Alabama ruled in Strawser v. Strange that the state’s amendment and statute prohibiting same-sex marriage were unconstitutional. On February 3rd, Alabama Chief Justice Roy S. Moore issued a memorandum, in which he cited his duty as “administrative head of the Unified Judicial System,” (Page 3) and declared that “Alabama probate judges” – those who issue marriage licenses within the state – “are not bound by the orders” (Page 4) of Judge Granade. Only five days later, Chief Justice Moore, citing the memorandum, filed an Administrative Order prohibiting all probate judges from following the District Court’s ruling. While it is tempting to immediately dismiss Chief Justice Moore’s memorandum as judicial fiat unworthy of our time and consideration, it nonetheless makes several points that, without rebuttal, will grant Chief Justice Moore the textualist high ground – a position which he does not deserve.
In dismissing Strawser in general, Chief Justice Moore argues that the “Attorney General is not the proper defendant.” (Page 19). This claim seemingly flies against Ex Parte Young, a case that declared that an individual can sue a state or an official of the state for constitutional violations without violating the Eleventh Amendment. Yet Chief Justice Moore argues that the Young Court significantly limited these lawsuits by saying that “such officer [that is being sued] must have some connection with the enforcement of the act.”
This contention yields little merit. Not one page before did the Young Court explain that “we do not think such contention [based on Fitts] is well founded.” And not one page later in Young did the Court explain that “[t]he being specially charged with the duty to enforce the statute is sufficiently apparent when such duty exists under the general authority of some law, even though such authority is not to be found in the particular act.” The officer need not be directly charged with enforcing the law; just so long as he or she is responsible in his or her capacity for enforcing the laws, including the one in question that would suffice to make the officer liable to suit. It is beyond doubt that the Attorney General of Alabama fits this very description. Indeed, one of the main tasks for the Attorney General of Alabama is to “represent the State of Alabama, or any agency, department, or instrumentality of the state in any litigation in any court or tribunal.” The plaintiffs in Strawser were therefore correct in naming the Attorney General of Alabama as the defendant.
Chief Justice Moore makes a bold – and admittedly grounded – claim that the probate judges of Alabama are not bound to the District Court’s judgment. Under the Federal Rules of Civil Procedure, injunctions issued by courts only apply to “the parties; the parties’ officers, agents, servants, employees, and attorneys; and other persons who are in active concert or participation with anyone described” in the previous categories. Since, according to Chief Justice Moore, the probate judges “are not in any sense agents or servants of the Attorney General,” and since they are not, in his judgment “in active concert or participation” with the Attorney General or any of his officers, agents, servants or employees,” they are not accountable to the District Court’s judgment.
Chief Justice Moore correctly dismisses the notion that the probate judges are the “officers, agents, servants, employees, and attorneys” of the Attorney General. He also dismisses the notion that they are not “in active concert or participation with” either the parties or anyone else listed in Rule 65(d)(2)(B) by stating “neither the Attorney General nor any of his agents has any authority over the judges of probate.” But is it reasonable to say that the phrase “in active concert or participation with” is limited to one party having authority over another? To be sure, such a power structure would be well within the definition of “in active concert or participation;” but to claim that this is the entirety of its breadth is to constrict the phrase in a way that warps its common understanding. The phrase generally refers to working together towards a common goal or objective, regardless of which role each party plays in ensuring the scheme’s success. It thus expands beyond the narrow relationship of direct authority of one party over another.
Indeed, the relationship between the Attorney General and the probate judges is not one of direct authority of one over the other, but one of continual cooperation between them. While the probate judges are not appointed by any member of the Executive department, they are able, especially in difficult legal scenarios such as this one, to “submit, with the request for an opinion, a writing setting forth the facts showing the nature and character of the question which makes the advice sought necessary to present performance of some official act that the officer must perform.” And the Attorney General must, upon that request, give his or her opinion, in writing or otherwise, as to any question of law connected with the duties of the … officers when requested so to do in writing.” It is important to note that the probate judges are not to call upon the Attorney General for the enforcement of marriage licensing laws; rather, “it is the duty of the judge of probate to give notice to the district attorney of all [marriage licensing] offenses.” That said, the Attorney General can “give the district attorneys of the several circuits any opinion, instruction or advice necessary or proper to aid them in the proper discharge of their duties.” Despite the fact that each member in this concert has its own duties and spheres of influence, they all play a significant role in the overarching scheme to issue marriage licenses and enforce the marriage laws that the District Court clearly rejected. The Alabama scheme involving the Attorney General, the probate judges, and the district attorneys thus constitutes “… active concert or participation …” under Rule 65(d)(2)(C) of the Federal Rules of Civil Procedure.
Chief Justice Moore’s memorandum fails to justify the ends it seeks to establish. While I have discussed the legal question, it is impossible to neglect the moral background to the current dispute. Issues like the one at present, by their very nature, tear at our hearts with compassion and empathy for the plaintiffs who, until very recently, have been denied the rights that mark their dignity as equal persons under the law. They beg us to eschew, if not passionately oppose, any action to the contrary.
But there is an equally powerful motion that must be opposed. While one can question the correctness of Supreme Court and Federal lower-court precedent on the issue of gay marriage, it is now water over the dam; and it is more than clear that the proper response to that controversy is not to angrily break the dam. Chief Justice Moore’s memorandum is merely a front – as he himself conceded – to ensure that the current Alabama marriage scheme remains intact. In the process, he has pressed his own view of morality into the law. This, to me, is the most unacceptable. The law deserves better; the courts deserve better; Alabama deserves better.
 (No. 1:14-424-CG-C) (S.D. Ala. Jan. 26, 2015)
 209 U.S.123 (1908)
 Ibid. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530 (1899)).
 Ibid. at 156.
 Ibid. at 158.
 §36-15-1 (13), Ala. Code 1975.
 Rule 65 (d)(2)(A), (B), (C), Fed R. Civ. P.
 Rule 65(d)(2)(B), Fed. R. Civ. P.
 §36-15-1 (1)(d), Ala. Code 1975.
 §36-15-1 (1)(a), Ala. Code 1975.
 §30-1-18, Ala. Code 1975.
 §36-15-15, Ala. Code 1975.