The U.S. Supreme Court Should Remind Roy Moore That It Has the Final Say on the U.S. Constitution

This post was co-authored with Judith E. Schaeffer, Vice President of Constitutional Accountability Center.

Chief Justice Roy Moore of the Alabama Supreme Court is making national headlines again, and once again it's because of his disdain for the U.S. Constitution. On Wednesday, Moore ordered the state's probate judges not to issue marriage licenses to same-sex couples, notwithstanding the fact that the U.S. Supreme Court in June ruled that the Constitution requires all states to allow same-sex couples to marry and that a federal court in Alabama has required all probate judges to issue marriage licenses to same-sex couples in implementation of that decision.

Moore, however, is infamous for his contempt for the Constitution and his misguided and dangerous belief that it does not govern his conduct. Until recently, he was perhaps best known for his refusal to obey a federal court order to remove his Ten Commandments monument from the Alabama judicial building. As before, and thanks this time to the U.S. Supreme Court's ruling in the marriage equality case, Moore will not get away with his latest effort to deprive Americans of their constitutional rights.

But there's another Alabama case in which Moore and his colleagues on the state Supreme Court might just get the last word--to the great detriment not only of a lesbian mother and her children, but also to the rule of law--unless the U.S. Supreme Court steps in. Next week the U.S. Supreme Court will decide whether to review a decision of the Alabama Supreme Court that ignored the text and history of the U.S. Constitution, not to mention a century of U.S. Supreme Court precedent, in order to rule against a lesbian mother's right to see her own children.

The case, V.L. v. E.L., involves two women who had three children while in a committed, long-term relationship. Because the women were not then allowed to marry, they ensured that both of them would be the legal parents of the children by having V.L., the non-biological mother, adopt the children in Georgia. When the women's relationship subsequently ended, V.L. sought visitation in Alabama where the family lived. The Alabama Supreme Court refused to recognize the Georgia judgment of adoption issued eight years earlier, thereby depriving V.L. of parental rights over children she had raised since they were born and depriving those children of one of their parents.

Although the Alabama court's majority did not predicate its decision on opposition to gay and lesbian adoption (one concurring opinion did, however, argue that the state has a legitimate interest in encouraging children to be raised by a mother and a father), it's difficult not to view this Alabama Supreme Court decision in the light of that court's opposition to marriage equality before the U.S. Supreme Court ruled, and Chief Justice Moore's continued opposition to it even after it did rule. After all, the Alabama high court's decision not to recognize a sister state's adoption judgment is at odds with the Constitution's text and history, not to mention a century of Supreme Court precedent.

When the Framers drafted our national Constitution, they were operating against the backdrop of significant state-on-state discrimination, and they understood that this discrimination was incompatible with the "more perfect Union" that they were drafting the Constitution to establish. The Framers thus included in the Constitution the requirement that states give "Full Faith and Credit . . . to the public Acts, Records, and judicial Proceedings of every other State."

Consistent with that constitutional requirement, the U.S. Supreme Court has repeatedly recognized that "[a] final judgment in one State . . . qualifies for recognition throughout the land." Thus, a state may not refuse to enforce a judgment entered in another state simply because it may disagree with that state's laws. The Alabama Supreme Court decision in V.L. v. E.L flies in the face of this precedent, and it is up to the U.S. Supreme Court, which has already put the Alabama Supreme Court's decision on hold while it decides whether to take the case, to correct it.

Chief Justice Moore may not want to recognize that the U.S. Supreme Court has the final say when it comes to the U.S. Constitution, but it does. The nation's high court should take the opportunity presented by V.L. v. E.L. to once again remind Moore and his colleagues of that very important fact. Nothing less than the rights of a mother and her children depend on it.

This post is also crossposted at CAC's Text and History blog.