On 4 March 2016, the Supreme Court of Alabama dismissed a petition by conservative activist group Alabama Policy Institute and a probate judge to halt gay marriages in the state.

This was reported by mainstream NBC News (which may have a liberal lean?) as the end of legal challenges to gay marriage in the state.

On the other hand, conservative family activism and religious liberty group AFA reported on the same decision as a stand against judicial tyranny and a refusal to acknowledge the constitutionality and nationwide binding precedence of Obergefell v. Hodges.

I was confused by the apparent contradiction between the two accounts, so I checked the ruling on the court's website. Chief Justice Roy Moore spends 100 pages explaining why gay marriage is evil and unnatural, why Obergefell was an unconstitutional opinion, why unconstitutional opinions do not creating binding precedent, what our oaths of loyalty to the constitution mean, what the difference between a ruling and an opinion is, why he needn't recuse himself, and why Obergefell only applies to the parties to the case, and not to the probate judges of the state of Alabama.

Then he concludes by saying on page 100:

As stated at the beginning of this special concurrence, the certificate of judgment in this case does not disturb the March 2015 orders of this Court that uphold the constitutionality of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act. For that reason, as explained above, I concur.

I'm confused. His discussion make it seem like AFA has reported correctly that the Alabama judiciary is taking a principled stand against the SCOTUS's decision in Obergefell. But then he concurs to dismiss the petition to halt gay marriage, which seems to have the effect of enforcing Obergefell. If he thinks the probate judges are bound to deny marriage certificates to same sex couples, why is he concurring to dismiss, instead of dissenting? Justice Bolin also writes a concurrence, where he states that despite disagreeing with Obergefell, he recognizes the authority the SCOTUS has over Alabama. That makes sense. But what is Chief Justice Moore doing here?

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    This article gave more context: al.com/news/birmingham/index.ssf/2016/03/…. Basically Moore's opinion is that since Obergefell is not binding, state law barring same sex marriage is still in force, and the petition to uphold state law is not necessary. Other justices like Bolin agree that Obergefell has precedence over that court and so the petition is dismissed on those grounds, so this ruling probably does represent the final legalization of gay marriage in Alabama.
    – ziggurism
    Commented Mar 19, 2016 at 18:53
  • Your comment seems like the answer. Commented Feb 28, 2019 at 14:36
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    @MartinBonner but it sure is funny how two different news outlets can report on the same exact news about a legal ruling and reach opposite conclusions about what happened.
    – ziggurism
    Commented Feb 28, 2019 at 17:58
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    A new development: because some probate judges refused to issue any marriage licenses rather than issue same-sex licenses, in 2019 the legislature passed, and the governor signed, SB69 which only requires that a marriage certificate be signed by the couple before a notary; no license or ceremony required. This opens the possibility that people could be married in Alabama without ever visiting the state. Commented Aug 29, 2019 at 12:21

2 Answers 2


In this ruling, the Alabama Supreme Court dismissed a case seeking to halt same-sex weddings in Alabama, which had begun under Obergefell.

The text of the ruling is, in whole:

IT IS ORDERED that all pending motions and petitions are DISMISSED.

The remaining 169 pages are editorializing, nothing more.

The NBC characterization is, therefore, correct:

The Alabama Supreme Court refused Friday to defy the U.S. Supreme Court ruling that effectively legalized same-sex marriage nationwide, cutting off a conservative bid to prevent gay weddings in the state.

Now it is true that Chief Justice Roy Moore was, at the time, holding to a rather unorthodox position that Obergefell somehow didn't apply to Alabama.

This was not the ruling of the court, nor did the Alabama "Court of the Judiciary" seem sympathetic to this view.

On May 6, 2016, The COJ suspended Moore from the bench for sending an improper administrative order to lower-court Alabama judges instructing them to ignore the SCOTUS ruling on Obergefell.

This suspension was eventually upheld (by the remaining members of the Alabama Supreme Court) and he was ultimately forced to resign.

  • So the legal reasoning presented in Moore’s opinion was in fact a last ditch effort to keep gay marriage banned, but it was not accepted by his fellow justices and he was eventually fired for trying to follow through. But if there had been more Moores on the court, they might’ve supported his interpretation and the AFA report would’ve been an accurate description of the impact of the ruling?
    – ziggurism
    Commented Aug 26, 2019 at 23:03
  • @ziggurism It is unclear what would have happened if the majority of the Alabama Supreme Court would have sided against a clear SCOTUS precedent. In the 1950s, a similar conflict led to the intervention of the Arkansas National Guard.
    – BradC
    Commented Aug 27, 2019 at 13:37

The U.S. Supreme Court legalized gay marriage everywhere in the U.S.

"The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. ... The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Obergefell V. Hodges, 576 U.S. ___, 23, 28 (2015) cited and linked by the OP in paragraph 3 of the question we are answering


The Alabama court didn't do anything about gay marriage, legalize or outlaw it, because it doesn't have the authority to do anything

"The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2), establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the 'supreme law of the land'. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law."


The Alabama court dismissed the case because it was moot.

"In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law."


Judge Moore's 100 page Statement of Nonrecusal is dicta, the intent of which was to loudly proclaim his objection the legalization of same sex marriage, but which has no legal effect

"The law of stare decisis contains two basic and virtually undisputed principles. First, the doctrine of vertical stare decisis requires lower courts to follow a higher court’s holdings. Second, lower courts are not bound to follow the dictum of a higher court. ... Dicta include 'statement[s] in an opinion not necessary to the decision of the case;' holdings, on the other hand, are statements actually necessary to decide the issue between the parties."

"Appellate judges are careful writers, and are familiar with the principle opposing advisory opinions. Yet passages that are obviously dicta appear throughout their opinions ... "

Judge Moore's writing is orbiter dicta because it is his rejection of the U.S. Supreme Court's decision to legalize same sex marriage. The issue before the Alabama Supreme Court was a request for delay of an order by the Alabama Supreme Court to deny marriage licenses to same sex couples in defiance of the ruling by the Federal District Court that same sex couples have a Constitutional right to marry and an order by that court to issue marriage licenses to same sex couples. As a result of the U.S. Supreme Court's ruling, the Alabama Supreme Court passed upon the issue before it.

"'Obiter dicta' involve points neither argued by the parties nor deliberately passed upon by the court; these statements often originate with the writing judge. Obiter dicta generally have no persuasive influence."


Judge Moore's dicta is dead because it has been explicitly rejected by the U.S. Supreme Court.

"Dead dicta has died through the issuing court’s explicit pronouncements."


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    What is your evidence that the Alabama Supreme Court didn't do anything about gay marriage? You're making unsupported assertions of fact – where's the text that supports your claim?
    – user6726
    Commented Aug 25, 2019 at 18:55
  • Cite the relevant cases or laws, providing links to the proper governmental hosted resource.
    – Trish
    Commented Aug 25, 2019 at 19:09
  • So do you think the 100 pages written by Moore were just lip service? He wanted to appear to be defending traditional marriage while actually complying with the higher court’s rulings? That is the kind of sneaky doublespeak you might expect from a politician, not a jurist. But then he did run for senate the next year.
    – ziggurism
    Commented Aug 25, 2019 at 21:35
  • Your "argument" is devoid of evidence: as it stands, it's simply a personal opinion. What counts is the logical connection between your conclusion and the evidence that you give for the conclusion, and that is where the problem resides.
    – user6726
    Commented Aug 25, 2019 at 23:07
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    You claim Obergefell v Hodges legalized gay marriage everywhere by linking to the entire 103 page opinion. Not sure about you, but I (and many others) don't have the time to read the whole thing. A quick quote of the relevant part would help. In addition, the part about Dicta seems unsupported. The last paragraph before the disclaimer is basically straight opinion. Finally, the overall tone might drive some who would otherwise let it go without a vote to downvote instead
    – Saladani
    Commented Aug 26, 2019 at 2:34

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