Would Judge Moore Be on Less Solid Ground in SSM Case if 11th Circuit Involved?

Emily Bazelon’s sorta defense of Judge Moore is definitely worth the read. But one aspect of it struck me as wrong, or at least incomplete:

Roy Moore is right that on its face, Granade’s order doesn’t require state probate judges all over Alabama — who weren’t named in the case Granade heard — to issue marriage licenses. Granade merely instructed Alabama’s attorney general not to enforce the state’s same-sex-marriage ban. That means a probate judge could go along with her decision, as some have, (and as clerks of the court did in Florida, after a similar district-court decision there went into effect in January). But they don’t necessarily have to. “If the 11th Circuit had invalidated Alabama’s gay-marriage ban, all the state-court judges would know what to do,” the Florida International University law professor Howard Wasserman, who has written about the Alabama dust-up, told me. “But the district court’s authority is much more limited.”

 

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