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New Day

The Debate Over Same-Sex Marriage in Alabama; Alabama Chief Justice Roy Moore Speaks

Aired February 12, 2015 - 08:30   ET



MICHAELA PEREIRA, CNN ANCHOR: All right, here we go with the Thursday edition of the five things you need to know for your NEW DAY.

At number one, President Obama is asking Congress to authorize military action against ISIS. His plan all but rules out a large scale ground war.

Kayla Mueller, the latest American to die in ISIS captivity, may have been paired with an ISIS fighter. A U.S. intelligence official say it's unclear if she was coerced, sold or perhaps forced into that pairing.

A cease-fire agreement has been reached in eastern Ukraine. Leaders of France, Germany, Ukraine and Russia negotiated throughout the night. This agreement calls for both sides to put down their weapons on Sunday.

Tens of thousands demonstrating taking to the streets to protest Shiite Muslim rebels taking control of Yemen. This after the U.S., Britain and France shut down their embassies after growing security concerns.

A legendary news man has been killed. Veteran CBS correspondent Bob Simon killed in a car crash in New York City. The town car he was driving in hit another car and slammed into metal highway barriers. The 27 time Emmy winner was 73 years old.

We update those five things to know, so be sure to visit for the latest.


CHRIS CUOMO, CNN ANCHOR: The fight for gay marriage is not over, not legally, not culturally, and the front on both have come together in Alabama. The state's chief justice is blocking same-sex weddings, and we're going to test him on why.


CUOMO: Welcome back to NEW DAY.

Same-sex marriage became legal in Alabama on Monday by order of a federal court. But Alabama Chief Justice Roy Moore issued an order forbidding probate judges from issuing marriage licenses. He says the law and God is on his side. The question is, do those two go together in this instance? We have Chief Justice Moore with us this morning.

Appreciate you taking the opportunity, your honor.


CUOMO: So, the basic question is, and I know there's a lot of legality here, we don't want to get too into the weeds for our audience because they're neither jurists nor lawyers, certainly not of your level, at least most of them. So the basic question is, the federal law should rule and it says to the attorney general of your state, allow the marriages to go forward. Why are you resisting that?

MOORE: Because that's not the federal law. What you're confusing is law with an opinion of a justice, and that's the basic fallacy which all this is built upon. What did one lone judge in Alabama federal court says is not law. If it were law, then the United States Supreme Court wouldn't be meeting to determine this issue in April through June.

CUOMO: Two things, your honor.


CUOMO: First, this appeal for a stay went all the way to the Supreme Court. The stay was denied. That is the Supreme Court saying follow the district court order which is what is telling your state to allow the marriages. And as you know, the history of your state very well, better than I, district courts are often the tool for change, let's say with segregation. If your state hadn't followed those district court orders, you may still be in a different position legally. Your response?

MOORE: Well, what you're saying is the injunction was not lifted, it remains in effect, and that injunction applied only to the attorney general of the state, no to the probate courts of Alabama. Indeed, that's the difficulty in this camp by the federal court to control the state of Alabama and its federal intrusion into state sovereignty. Even she admitted after that fact that she had no right, no power, no authority to intrude into the probate court of Mobile County and Probate Court Judge John Davis.

CUOMO: She did not have to because the district court, by ordering the attorney general to effectuate the marriages, was reaching out to the top law enforcement official. I would offer that you are drawing a distinction without a difference, your honor, because probate judges are functionaries. It is not necessary to reach out to them. It is necessary to reach out to the top law enforcement officer and that's what was done by the district court.

MOORE: That's incorrect, sir. You want to get deep into the doctrine of the young doctrine in 1908 and that attorney general did not have the function of the probate courts. In fact, he stated that very clearly in his affidavits. That power over the probate courts is under the administrative direction of the chief justice of the Supreme Court, and that's myself.

CUOMO: In all of these cases it has been the attorney general. That's why the order is usually directed to them. I understand what you're trying to do here, you're trying to defeat the federal law. The question is, why?

MOORE: No, I'm not trying to defeat the federal law. There is no federal law and that's the point. No judge in the United States or federal district court has the right to invent the definition of marriage, which is not even contained in the United States Constitution. And that's the problem. We have people going in trying to mandate to the state of Alabama that the sanctity of marriage amendment in our Constitution is wrong, and that's simply not right to do.

CUOMO: Well -- well, it certainly is right. That's how this works, right, is that the federal law says that a state law is discriminatory and they change it. And certainly the distinction you're trying to draw with the district court, you don't have an independent case in front of you, your honor, about your own marriage law. This is about gay marriage in general and the equality in general and that's why the district court's able to say it. But again, you're right, we shouldn't get into the thickets.

I would suggest something else looking at your letter that you wrote to the governor of Alabama. For you, marriage is about the divine institution. It's as true as your words and as the pin on your lapel. You want to say that God says marriage is a certain thing and you don't want to hear anything else about what a definition of marriage could be. Is that a fair suggestion?

MOORE: No, that's not a fair suggestion. I go by the law. Of course I believe marriage was defined by God, but so does the United States Supreme Court. In the case of Murphy versus Ramsey, they said that marriage and family are the basis from the holy union of one man and one woman in the state of matrimony. That was clearly the United States Supreme Court opinion. It's been the court of opinions in state courts across this country. And especially in Alabama, we've recognized it as a divine institution in our law. Naturally it existed hundreds and even thousands of years before the United States even came into existence.

CUOMO: Right, but we are a nation of laws and not just God's law. And what your state did in 2006 was what many did, which was, you tried to define marriage to exclude. And what happened in U.S. v. Windsor, the case that is on everybody's lips now because it changed it, is that those laws that define marriage as only between a man and a woman are unfair and fail the test of equal protection. You know that. You know that when they meet this spring many people believe the Supreme Court will affirm this and say that state laws and constitutional provisions like your own are unfair. The question is, why won't you accept that definition of marriage?

MOORE: First, when the Supreme Court meets, I believe state's rights is going to be a big part of this. And I don't believe they have the right to push upon the state a definition which this state does not recognize, indeed, which the United States Constitution does not recognize. In fact, in Loving versus Virginia in 1967, when they declared that interracial marriages could not be prohibited, correctly so, they referenced marriage as the right of free men and women to enter into pursuit of happiness. They quoted basically out of the Declaration of Independence which said that God gave us these rights. We hold these truths to be self-evident that all men are created equal and endowed by their creator with certain unalienable rights and among these are life, liberty and the pursuit of happiness. They're unalienable because they can't be taken away and they can't be mandated on the state in this instance.

CUOMO: Of course they can, though, your honor. That's what happens. It used to be legal to have slaves. Your state had a lot of laws on the books, like other states, where times changed and those laws had to change. And this is another example of that.

MOORE: You know slavery -- slavery was wrong and in 1857, when the Supreme Court of the United States declared in Dred Scott that black people could be property, one justice dissented. He said that when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws is abandoned, the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution. We're under a government of individual men who, for the time being, have the power to declare what the Constitution is according to their own views of what they think it ought to mean. Those words by Benjamin Curtis are exactly what's going on in the United States Supreme Court and the federal courts of this state -- of this nation today.

CUOMO: And just as they were --

MOORE: And the United States Supreme Court hadn't ruled on this issue.

CUOMO: And they will. But they have ruled on what the substance of it is. And you've had a federal court tell you to marry people and you're not. And I would suggest that, based on what we're hearing right now, your refusal goes to what you believe marriage is about and not just to the law.


CUOMO: Because -- just because --


CUOMO: But -- but here's the thing. Here's why I'm saying it, your honor, and, obviously, it's for you to answer for yourself.

MOORE: Yes. Sure.

CUOMO: The definition of marriage was agreed 81-19 in your state in the passing of the constitutional amendment. Times have changed, as they did with slavery, and the population no longer feels the same way. And even in your state people no longer feel the same way. You are clinging to a definition that you believe is divine. You said it in your letter to the governor. MOORE: No.

CUOMO: But you know that divine basis --

MOORE: No, you're incorrect.

CUOMO: It's -- I'm reading it. I'm reading it.

MOORE: You're incorrect.

CUOMO: I'm reading it right here.

MOORE: You're incorrect.

CUOMO: How so?

MOORE: Well, do you want to hear my answer or do you want to keep talking?

CUOMO: Yes, sir. Please. I'm done talking.

MOORE: OK. Eighty-one percent as recently as 2006 said it was the definition. They haven't changed their opinion. The only thing that's changed is one federal judge has come in and tried to force upon this state something which she cannot do. Her opinion is not law and that should be made very clear. The law, according to the United States Supreme Court and the federal district courts is an opinion of a federal judge cannot -- cannot mandate to state courts how they should judge under the law. That's the law in every state. It's the law in the United States. Justice Thomas said that in 1996.

CUOMO: But it's happened many times and the Supreme Court had an opportunity to stay this district court's opinion, which they very well could have done, and they did not, reinforcing the effect of that.

MOORE: Staying opinions -- staying a temporary injunction, which applied only to the Attorney General, is not a ruling on the law, sir. Very clearly.

CUOMO: Your Honor -- look, Your Honor, what this comes down to is you didn't have to do this. You've created a basis to do it, but you didn't have to do it.

MOORE: I had to do this.


CUOMO: You had to do it because it matters to you personally. This is just like the Ten Commandment situation. You were told by the federal courts remove the Ten Commandments from the public square. You didn't want to and you wound up losing your job, because of it but on principle you felt you did the right thing. Isn't that true?

MOORE: On principle, I did the right thing. But it's not about the Ten Commandments and it's not about my feelings, it's about the law. And my law, the Alabama law --

CUOMO: You said that as well then, Your Honor.

MOORE: The state (INAUDIBLE) chief administrative officer -- I said the chief administrative officer of the judicial system, and I must act when the jurisdiction of the probate courts is interfered with by one lone judge who has no power or authority to tell them how to interpret the federal Constitution. Under the supremacy clause, it's quite clear that the judges in every state shall be bound thereby, anything in the Constitution, the laws of any states to the contrary notwithstanding. Which states that basically state judges have the authority -- do have the authority to interpret the United States Constitution.

In Arizona case out of the United States Supreme Court, they said that very specifically. They said we not only are not free, we are bound to interpret the United States Constitution.

CUOMO: But this is exactly how the discrimination got removed in states like yours. District courts putting through rulings that the states then had to enact.

MOORE: Nobody's arguing about racial discrimination in this case. This is not about racial discrimination.

CUOMO: It's about discrimination.

MOORE: It's about sexual -- it's about sexual preference.

CUOMO: It's about discrimination.

MOORE: Being -- overcoming an institution which has existed in our state, in our United States, for centuries. And I think it's wrong.

CUOMO: But it's about discrimination. In 2006, you created a constitutional amendment that, by design, discriminated against gay people. And now you are being told by the federal law that is wrong.

MOORE: Again -- again -- again, that is a constitutional amendment to the Alabama constitution, and it's clearly within the bounds of state law and federal law. Again, there is nothing in the constitution about marriage. How can judges go in and define a word? They're doing exactly what they did in 1857 in Dred Scott.-

CUOMO: They just did it in U.S. v. Windsor. They just looked at the Defense of Marriage Act and said you cannot define marriage as just between a man and woman.

MOORE: That was between Congress. It did not affect the state, according to the ruling in Windsor.

CUOMO: But you can't say that the Court hasn't spoken about it. It was the exact same issue. It just wasn't a state law and that's why we're having the next case in June --

MOORE: I can say the Court -- I can say the Court spoke about it, because they said this does not apply to the state. It applies to the federal law passed by Congress.

CUOMO: That's right, because of the specific issue before them. And now they're meeting again in June. And if June comes and they hold the same way, then what will you do?

MOORE: Then I will do what the Court should -- or what the Court should have done under Dred Scott. If it's an unlawful mandate, you don't have to recognize it. You can recuse from the case.

CUOMO: So you still --

MOORE: You can dissent. You can dissent to the United States Supreme Court, just like you can dissent to anything else.

CUOMO: If the Supreme Court causes it to be stare decisis, and we both know what that means, the case is decided, and the law is you cannot discriminate against people on the basis of their sexual orientation in marriage, you will be -- you will have to follow it, will you?

MOORE: Chris, let me ask you something -- let me ask you this, Chris.

CUOMO: Yes, sir.

MOORE: Would you follow the -- would you have followed the order in Dred Scott saying that black people were property? Or would you have followed the order in Plessy versus Ferguson that says separate but equal was the policy of the United States? Can you answer that please?

CUOMO: Your job as Chief Justice is to administer the law.

MOORE: You didn't answer the law. You didn't answer it, Chris.

CUOMO: I am not the Chief Justice of Alabama. It's not my place to answer.

MOORE: Well, I'm asking you if you were the Chief Justice of Alabama, would you follow Plessy versus Ferguson and Dred Scott when they were issued. Yes or no?

CUOMO: You follow the law of the land. That is what our nation is based on.

MOORE: You can't answer it, can you, Chris?

CUOMO: Here's why. You cannot duck your responsibilities by putting them on me, Your Honor. They didn't elect me to be Chief Justice.

MOORE: I'm not ducking my responsibilities. I will follow the law, sir.

CUOMO: So you'll allow gay marriage when it goes forward if it happens in June?

MOORE: I said I will follow the law as I interpret it. CUOMO: That will be the law by any definition.

MOORE: If I can't follow what the Supreme Court says, I'll recuse from the case. But I'm telling you that you can't answer the question because you can't admit yourself that Plessy versus Ferguson, separate but equal, and Dred Scott were wrong decisions and should not have been followed by the lower courts under the United States Supreme Court because they were against the Constitution.

CUOMO: No, what you are trying to do is you re trying to impose a false standard for people and you know the law doesn't work that way. We don't always like it. But you have to follow it and you take the right routes to appeal. You did the same thing with the Ten Commandments. The law was clear: they weren't supposed to be in the public square and you went against it anyway. What did I just say that was untrue?

MOORE: United States Supreme Court is the final arbiter of this decision.


MOORE: They have not made their decision. What you're trying to do is ask me what I would do when they make a decision.


MOORE: I'm telling you they should not make a wrong decision, because it would be a wrong decision just like Dred Scott, just like Plessy versus Ferguson, and it's clear those were wrong decisions in the United States Supreme Court. And if you were a justice or a judge in a court after that, you probably would have followed the wrong decision of the United States Supreme Court.

CUOMO: So you think gay marriage is wrong, right? Just say it.

MOORE: I think gay marriage is an alteration of the definition of marriage and the United States Supreme Court does not have the authority -- or the federal courts do not have the authority to interpret a word that disputes the Constitution. The Tenth Amendment is very clear. The power's not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively.

CUOMO: Is equal protection a matter for the Supreme Court?

MOORE: This is one of the ways it's reserved for the states.

CUOMO: Is equal protection a matter for the Supreme Court? The answer is of course yes, as guaranteed in the Fifth Amendment. That's what this is.

Go ahead, Your Honor.

MOORE: Everybody has a right -- everybody has a right to equal protection. CUOMO: Yes.

MOORE: And so does an equal application of the law. Every person in this country and in this state has a right to marry a person of the opposite sex according to the original definition of marriage.

CUOMO: And why not extend it to the same sex? Why isn't -- that's clearly within the bounds of a reckoning of equal protection.

MOORE: Because that's not in the definition --

CUOMO: Why not do that?

MOORE: That's not in historical definition of marriage; never has been. It's going to be created if it is created, which I do not believe it should be or would be.

CUOMO: Well, you don't believe that as a matter of personal opinion, right? But times change, definitions change. We didn't think blacks were equal to whites. That changed.

MOORE: No, I believe that's a matter of law because our rights contained in the bill of rights do not come from the Constitution; they come from God. It's clearly stated --

CUOMO: Our laws do not come from God, Your Honor, and you know that. They come from man.

MOORE: Well, let me ask you one question. Let me ask you one question, Chris. Is the Declaration of Independence law?

CUOMO: You would call it organic law as a basis for future laws off of it?

MOORE: I would call it the organic law because the United States code calls it organic law. It is organic law because the law of this country calls it the organic law of our country means where our rights come from. And if they come from there, men can't take --

CUOMO: Our rights do not come from God. That's your faith. That's my faith. But that's not our country. Our laws come from collective agreement and compromise.

MOORE: It's not a matter of faith, sir; it's a matter of organic law, which states we hold these truths to be self-evident that all men are held equal and endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. And the only role of government is stated in the next sentence, is to secure those rights for us.

When government starts taking those rights away from us, then it's not securing it for us; it is violating the whole purpose of government.

CUOMO: Understood. But here's the thing. Yes, you're right with your principle of where you want to extend government and not. But it's about this case. It's about this set of equal protection issues, and you don't even have a rational basis for why marriage should only be between a man and a woman. You need to have a rational basis.

MOORE: It's about this case, you're right. In this case, the federal district court cannot be extended to the state courts because it's an opinion on her law.

CUOMO: The Supreme Court disagrees with you.

MOORE: If it was a law, the United States Supreme Court wouldn't be meeting, would they? It's her opinion.

CUOMO: The Supreme Court disagrees with you, though.

MOORE: It's her opinion.

CUOMO: Because it told you to follow it.

MOORE: The Supreme Court -- the Supreme Court addressed an injunction that applied to the Attorney General of the state of Alabama, not to my opinion and not to the law.

CUOMO: Legal scholars say that that's a distinction without a difference. They say that the Attorney General is good enough. You work for him.

MOORE: I think that distinction is the complete difference. I think that distinction is the complete difference. Her opinion is not a law.

CUOMO: But they are functionaries.

MOORE: You know why --

CUOMO: The probate judges are functionaries. They're just functionaries here. They don't have to be addressed.

MOORE: No, they're functionaries sworn to the United States Constitution and the Constitution of Alabama as all state officials are under the supremacy clause.

CUOMO: You don't feel that you are sacrificing --

MOORE: It's not about feeling.

CUOMO: Well, it's obviously about feeling. Your letter is about feeling. You're citing that marriage is about a divine institution. You are putting God before the laws of man. You're making it about that.

MOORE: I'm not putting God before the laws of man.

CUOMO: And it's about your ideas of your faith, about what marriage is. Let me just make the point and then you can take it anywhere you want.

MOORE: Okay. CUOMO: When you take the rules of your religion and you put them on

everybody else, that is not what we do in this country. Your definition of marriage is based on your faith. You've said it a hundred times that it is derived from God. That is not how it works here and you know that. Equal protection applies to all by compromise, and you would need to even have a rational basis for why it can only be between a man and a woman and all you can say is because God says so. It's always been that way. That's not enough.

MOORE: I've never -- are you going to let me answer?

CUOMO: Absolutely, sir. Please do.

MOORE: Okay. I've never said that's about my faith and it's about my religion. It is not, as a matter of fact. It's about the organic law of our country, which states very clearly that our rights are pursuit of happiness quoted in Loving versus Virginia come from God. Now God gave us that definition and that definition has remained in America for many, many centuries till -- for two centuries and even before that till just recently.

Now I'm just simply saying the people of Alabama have a right to put in their constitution --

CUOMO: That's right.

MOORE: -- that marriage is between a man and a woman. That doesn't dispute anything.

CUOMO: It certainly does. It certainly does.

MOORE: It already has.

CUOMO: It certainly does.

MOORE: The question before the Court -- the question before the Court is whether that definition is constitutional. That's to be taken up by the Supreme Court in April. So we'll wait and see what they say.

CUOMO: You've already had the federal court speak on this many different venues. They're going to do it again in June. You've said --

MOORE: The federal courts have intruded -- the federal courts have intruded their power into state sovereignty in over 21 states in the recent two years. That's wrong.

CUOMO: Well --

MOORE: That's wrong then and it's wrong now.

CUOMO: In your opinion, but the Supreme Court has said otherwise. And if it says so in June, you still say you wouldn't follow it. I don't know how you can be the Chief Justice of a court and not follow the law of the land. That's all.

MOORE: Chris, the Supreme Court is taking up this issue because Courts of Appeals across this country differ on that issue.

CUOMO: Absolutely.

MOORE: That's why they're taking it up is because United States Court of Appeals differ on those issues. And that's why they're taking it up.

CUOMO: But state by he state --

MOORE: You can't say it's the law.

CUOMO: State by state, the rulings all going the same way. State by state, they're all going the same way

MOORE: You can't say the law -- you can't say what the law is with the United States Courts of Appeals differ on this very issue.

CUOMO: And you can't say that even if the Supreme Court rules against your personal position, you won't follow it because it offends your faith. You can't do that as Chief Justice.

MOORE: I said I would not -- I would not oppose the law except with an opinion or a dissent. That's what I said.

CUOMO; No, I asked you would you follow it.

MOORE: I did not say I would not recognize the law.

CUOMO: I asked you if you would follow it and you went into a word salad about whether I would follow it.

MOORE: And I asked you if you would follow Plessy versus Ferguson.

CUOMO: I am not the Chief Justice.

MOORE: Well, you can't answer the question either.

CUOMO: You answer it first. Will you follow it if they decide in June that gay marriage is equal protection.

MOORE: I will recognize -- I will recognize the United States Supreme Court opinion is binding over the state courts. Me, personally, I will make that decision when it comes, sir.

CUOMO: You will make that decision when it comes? That's -- that's all you can do.

MOORE: Now you answer my question. You answer my question.

CUOMO: My answer is this, is that --

MOORE: Would you have obeyed Plessy versus Ferguson and Dred Scott?

CUOMO: The job of being a jurist is to follow the law.

MOORE: You won't answer the question, Chris. CUOMO: Yes, you would have had to because it would have been the law at the time. You could have dissented, you could quit. But if you're going to stay in a position --

MOORE: Well, that's exactly --

CUOMO: -- you would have had to accept the law what it was at that time. That's how it works.

MOORE: That's exactly what -- that's exactly what Benjamin Curtis did. He dissented and that's what I will do.

CUOMO: But you're not a Supreme Court justice. You are not on that Court. You are being told what to do.

MOORE: I'm a Supreme Court justice of the State of Alabama.

CUOMO: But not of the United States and that's who decides.

MOORE: I'm not of the United States, I recognize that, Chris. That's kind of obvious.

CUOMO: Well, listen, I'm not trying to be disrespectful, Your Honor, but what you're doing is you're saying --

MOORE: I'm not being disrespectful at all, Chris. I'm just asking you to answer a question. I think you've now answered it, that you would have followed the fact that they said black people were property and you would have obeyed that law.

CUOMO: I would have bound to.

MOORE: You also said you would have followed Plessy versus Ferguson, which said separate but equal was a proper policy and you would have obeyed that law.

CUOMO: I would be bound to.

MOORE: And you wouldn't even have dissented, would you?

CUOMO: I would have bon bound to.

MOORE: Would you have dissented?

CUOMO: Of course I would have dissented. I hope that my heart and my head would --


MOORE: That's what I will do.

CUOMO: -- in my own personal development, because that's not where yours is.

MOORE: That's what I would have done. That's what I would have done, Chris. I would have followed -- CUOMO : But I would not dissent against this one, because I understand

the law and I understand its evolution --

MOORE: Well, that's because your opinion -- well, it's not evolution. Law doesn't evolve. It's made by Congress and it's made by the state legislatures and it's made by constitutional amendments, not by federal court judges who make the ruling on their own feelings.

CUOMO: All right. I understand, Your Honor. Thank you for coming on and discussing it with us on NEW DAY. We'll come back to you in the future. Appreciate it.

Literally, the satellite window went down; that's why we lost Chief Justice Moore there. But we appreciate him for coming on, Alisyn and Michaela. It's a tough debate to have. He's a supreme jurist of that state, elected by the way. But it just shows this issue is far from resolved.

ALISYN CAMEROTA, CNN ANCHOR: Absolutely. Fascinating conversation.

PEREIRA: But as you mentioned, there's a lot of news to get to, so we'll do that. We'll hand it over to Carol Costello, "NEWSROOM". Good morning, Carol.

CAROL COSTELLO, CNN ANCHOR, "NEWSROOM": Thanks so much. Have a great day.

"NEWSROOM" starts now.