Alabama Supreme Court Chief Justice Roy Moore is setting a dangerous precedent. So far, he's insisted that federal courts don't have the power to rule on the constitutionality of state laws; he's instructed state judges to disregard a federal ruling on marriage equality; and this weekend he suggested that he would defy the U.S. Supreme Court if it overturned marriage bans.
So far, he's managed to create some headaches and a week of confusion in the state. But aside from that, his impact has been minimal. Marriages are now occurring from one end of Alabama to another, with little practical interference from Moore. Only a handful of judges still pay his outlandish legal theories any heed.
But that could change if officials in other states decided to follow his lead. Anti-equality officials in other states have reluctantly accepted federal rulings that overturned marriage bans. Now that Moore is making noise with his novel legal theories, he might manage to persuade a governor or two to join him in resisting federal rulings.
One likely candidate: Governor Greg Abbott, the new governor of Texas. Abbott has made no secret of his antigay animus, and his legal theories on marriage equality are almost as unbelievable as Moore's. Last year, Abbott submitted a brief to the Fifth Circuit Court of Appeals in which he claimed that marriage equality would result in more out-of-wedlock births and the extinction of the human race.
Kansas Governor Sam Brownback might be attracted to Moore's theories, as well. Not only has he stridently opposed marriage equality, but also Brownback recently gave state officials the power to fire any public employees whom they discover are gay — or even just suspected of being gay.
Kansas is in a peculiar place with marriage right now. A federal court ruled that the state's ban is unconstitutional, but state officials claim that the ruling only applies to the two counties identified in the lawsuit. That's a position almost identical to one of Moore's. It wouldn't take much of a leap for Brownback to take up Moore's other claims about federal courts having no jurisdiction.
But Alabama Governor Robert Bentley is unlikely to take Moore's side, at least not in public. Though Bentley has publicly expressed his opposition to gay and lesbian couples marrying, he seemed blindsided by Moore's statements and had no immediate comment. Later, he took pains to stress that Alabama had changed since officials stood in schoolhouse doors to prevent African-American students from attending schools.
Moore surely must know that his statements about the law are incorrect. President Obama explained as much in an interview with Buzzfeed. "When federal law is in conflict with state law, federal law wins out," he said. "I think the courts at the federal level will have something to say to him."
But providing insight into the law probably isn't Moore's top priority. As an elected official, he's playing to his constituency. The fact that he's wrong really doesn't matter.