New York Times Op-Ed agreeing with Judge Roy Moore?

I was reading an Op-Ed in The New York Times this morning about Alabama’s legal battle over gay marriage and was stunned to read this paragraph (underline mine):

Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork.

Don’t ask me to weigh-in on the legal analysis. I’m not prepared to do that in a way that could either gainsay or confirm the argument presented here. Still, I have been under the impression that a federal court’s ruling always trumps that of a state court. The law professor who wrote this piece says that is incorrect, even though he believes state courts should ordinarily defer to federal court rulings. Read the rest here.

10 Responses to New York Times Op-Ed agreeing with Judge Roy Moore?

  1. Joe Carter March 6, 2015 at 1:57 pm #

    Federal law takes supremacy over state law (but only if Congress is acting in pursuance of its constitutionally authorized powers). But in this case there is no federal law that trumps the state law.

    Also, as law professor Amanda Frost notes:

    “The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are
    binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely addressed the matter. Remarkably, this significant question about the interplay between the state and federal judicial systems lingers unresolved more than two-hundred years after the Constitution’s ratification.”

    http://www.vanderbiltlawreview.org/content/articles/2015/01/Inferiority-Complex-Should-State-Courts-Follow-Lower-Federal-Court-Precedent-on-the-Meaning-of-Federal-Law.pdf

    • Denny Burk March 6, 2015 at 3:57 pm #

      That is really helpful, Joe. Thanks for bringing us up to speed!

    • Phillip Andrews March 6, 2015 at 10:10 pm #

      You forget that the Supremacy Clause trumps both Federal and State Law, and that the Fourteenth Amendment (which is at issue) is specifically authorized to be applied by the Federal judiciary against the States.

      • Phillip Andrews March 6, 2015 at 10:11 pm #

        I meant “according to the Supremacy Clause, the Constitution trumps…” so I don’t know if you want to edit my previous comment, or…

        • Joe Carter March 7, 2015 at 1:38 am #

          The Supremacy Clause (Article Six, Clause 2) establishes the United States Constitution, federal statutes, and treaties as “the supreme law of the land.” It doesn’t say anything about lower court decisions trumping state law. If there were a federal statute that was applicable in this case, then the Supremacy Clause wouldn’t certainly trump the state law.

  2. Don Johnson March 6, 2015 at 6:59 pm #

    I recall there was a case that went from a school board decision directly to the Supreme Court. It seems that the locals thought that the school board had the final say as it had been set up that there simply was no further state court to appeal to, so it jumped all the way to the Supreme Court as it turns out a local board of education is NOT the final say. This might have been Brown versus Board of Education, but I am not sure.

    • Gus Nelson March 6, 2015 at 10:12 pm #

      This New York Times article doesn’t really tell the whole story. Typically state courts are given deference on issues of state law. For instance, it is often the case that federal appeals courts will “certify” a question to a state’s Supreme Court to answer a specific state question when that question is germane to the appeal’s court decision. Until recently it was very nearly universally understood marriage was a state issue. Moreover, what it truly ironic is that Justice Kennedy could have easily reached the same decision in Windsor in 2013 on federalism grounds by simply saying the Defense of Marriage Act was unconstitutional because marriage is not a federal matter but a state matter. So there is a sense in which Judge Moore is not simply “technically” correct, but has the history of how our judicial system has worked for many years and the 10th amendment backing him up. I wouldn’t ordinarily add this, but in light of the topic – I have been an attorney since 1988, for whatever that might be worth here.

  3. Esther O'Reilly March 6, 2015 at 11:01 pm #

    Yes, Judge Moore was correct all along. This is why I cringed to see people (including Russell Moore, I’m sorry to say), opening their mouths and weighing in without really understanding what they were talking about.

    • Gus Nelson March 7, 2015 at 10:57 am #

      Esther: I read Russell Moore’s comments and I felt they were not directed to the issue of federalism, but rather a view of whether a Christian who is a government official ought to defy the government while discharging his or her official duties. Seems to me that’s something upon which reasonable minds could differ. Perhaps Dr. Moore should have made a little clearer that he wasn’t commenting on the finer points of how are legal system is intended to work, so there wouldn’t be any misunderstanding. Judge Moore does have grounding for his views, but from a more practical standpoint, federalism has long since been abandoned as a guiding principle for our country. Perhaps this result has occurred because too many in our society (a) have never been taught how our system is truly supposed to operate and/or (b) don’t care.

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