Chief Justice Roy Moore of the Alabama Supreme Court on Wednesday ordered the state’s probate judges, the only ones in the state who are allowed to issue marriage licenses, to follow the state’s Sanctity of Marriage Amendment and its Marriage Protection Act until the full state Supreme Court rules on the issue.
In other words, stop granting marriage licenses to same-sex duos, even though that was the intent of the U.S. Supreme Court’s Obergefell decision last summer.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” he said.
The move brings into sharp focus the conflict over the proper role of government regarding marriage.
Marriage nowhere is mentioned in the Constitution, which provides that all such topics be reserved to the states.
In Alabama, the marriage battle began before the U.S. Supreme Court decision. A federal judge in the state ordered the creation of “same-sex marriage,” but the state Supreme Court put on the brakes, telling probate judges to follow the state constitution and law.
The Alabama constitution defines marriage as the union of one man and one woman.
When the U.S. Supreme Court ruled, instead of simply dropping all arguments, the Alabama Supreme Court said it would accept briefs on how the national policy should be implemented in Alabama.
That decision is pending.
Moore noted that the state Supreme Court nearly a year ago “issued a lengthy opinion upholding the constitutionality of Article I, Section 36.03(b), Ala. Const. 1901 (‘the Sanctity of Marriage Amendment’), and Section 30-1-19(b). Ala. Code 1975 (‘the Marriage Protection Act’), which both state: ‘marriage is inherently a unique relationship between a man and a woman.'”
The ruling was based on earlier decisions by the U.S. Supreme Court as well as the state court.
“In 1885 the Supreme Court of the United States described marriage as ‘the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best gauranty of that reverent morality which is the source of all beneficent progress in social and political improvement,'” he wrote.
At that time, the state court said, “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to [the Sanctity of Marriage Amendment or the Marriage Protection Act]. Nothing in the United States Constitution alters or overrides this duty.”
Then came the U.S. Supreme Court ruling and the Alabama court’s invitation to address the “effect of the Supreme Court’s decision on this court’s existing orders.”
Several briefs were submitted.
But Moore noted: “Confusion and uncertainty exist among the probate judges of this state as to the effect of Obergefell on the ‘existing orders’ … Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have cased issuing all marriage licenses. This disparity affects the administration of justice in this state.”
He said the state Supreme Court ultimately will rule as a body, but he cited the U.S. 8th Circuit Court of Appeals which “recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisidiction.”
“The United States District Court for the District of Kansas was even more explicit: ‘While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses.'”
Moore noted the ruling supports the concept that a decision affects only cases before the court and does not affect the “rights of strangers to those proceedings.”
“Whether or not the Alabama Supreme Court will apply the reasoning of the United States Court of Appeals for the Eighth Circuit, the United States District Court for the District of Kansas, or some other legal analysis is yet to be determined ,” he said.
The Alabama move is just the latest is a series of pushbacks against the decision to create same-sex marriage.
Just a day ago, WND reported lawmakers in South Carolina have proposed a law that would withdraw recognition of same-sex marriage.
“I represent the people, and the people have shown several times that they are opposed to this, and are in favor of traditional marriage,” state Rep. Bill Chumley, R-Woodruff, said in a report Tuesday by GoUpstate.com.
He was joined by state Rep. Mike Burns, R-Taylors, in prefiling a bill in the state House, the South Carolina Natural Marriage Defense Act, to “define marriage as between one man and one woman.”
Derek Black, a University of South Carolina law professor, told GoUpstate.com in an email that it’s “the task of the courts to interpret the Constitution and it is the task of legislators to act in accordance with the Constitution and other validly enacted laws.”
The Tenth Amendment Center, which monitors state and federal cases and issues, said such moves on the part of states could create headwinds for Washington’s “gay” agenda.
“State non-cooperation would certainly gum up the works, creating, as James Madison foresaw, impediments and obstructions to enforcing the federal demand to recognize gay marriage. It would bar state officials from issuing marriage licenses to gay couples, setting up a confrontation with the federal government like we saw in Kentucky.”
The group said the bill undoubtedly would lose in court because of the present weakness of states rights.
“Under the original Constitution, marriage was unquestioningly a matter left to the states and the people. In Federalist #45, Madison asserted that all objects that concern “the lives, liberties and property of the people,’ would remain outside federal jurisdiction.”
The Tenth Amendment Center contends that Supreme Court intervention into state marriage laws “represents a usurpation of power.”
“Nevertheless, in the American political system today, all courts … and federal authorities defer to the Supreme Court. … The effectiveness of the South Carolina Natural Marriage Defense Act would rest entirely on the willingness of the state to maintain resistance.”
The organization noted lawmakers in Alabama, Oklahoma and Michigan are simply getting the government out of the marriage licensing business altogether. One state judge has suggested that since the Supreme Court created same-sex marriage, its judges should be responsible for administering it.
“This strategy would avoid direct confrontation with the feds and likely prove more effective long-term because it would not be subject to challenge by federal courts,” the organization said.
One recent conflict was resolved with the stroke of Kentucky Gov. Matt Bevin’s pen.
In his state, Rowan County Clerk Kim Davis opposed having her name on licenses issued to same-sex couples. She spent nearly a week in jail when she refused orders from U.S. District Judge David Bunning to issue the licenses in violation of her Christian faith.
Then Bevin issued an order to remove clerks’ names from the paperwork.
The legal team representing Davis — who eventually was released from jail and returned to her duties after Bunning ordered her deputies to issue the licenses — said it was a simple fix that should have been done long ago.
“This is a wonderful Christmas gift for Kim Davis,” said Mat Staver, founder and chairman of Liberty Counsel. “This executive order is a clear, simple accommodation on behalf of Kim Davis and all Kentucky clerks. Kim can celebrate Christmas with her family knowing she does not have to choose between her public office and her deeply held religious convictions.”
The minority in the 5-4 U.S. Supreme Court marriage decision last June had warned that it would create constitutional conflicts.
In response to the Alabama court’s invitation to comment, a brief by the American College of Pediatricians said: “If accepted, Obergefell’s policy implementation will deliberately and intentionally deny children the father or the mother so essential to their well-being. … This court should also be reminded that the Constitution of the United States is the ‘supreme law of the land’ and is never trumped by an opinion that ignores the text, structure, and delegated jurisdictions of that document.”
The doctors’ brief was joined by one from the Charismatic Episcopal Church for Life, which said “the members of this court have sworn an oath of office to uphold the law, defined as ‘this Constitution, and the law of the United States which shall be made in pursuance thereof.'”
Unless the marriage ruling is issued “in pursuance of’ the United States Constitution, then it is not binding on this court,” the church’s brief said.
The brief argued the Constitution had nothing to do with the Obergefell majority’s opinion, as Chief Justice John Roberts has asserted in his scathing dissent.
Liberty Counsel‘s Staver said there is “a growing number of voices calling for resistance to the lawless marriage opinion.”
“Supreme Court justices swear an oath to uphold the Constitution, not invent a new one,” he said. “When they put their personal opinions in writing without one shred of constitutional support, the people have a right to question their authority.”
Critics have raised a number of concerns about the Supreme Court opinion.
For one, two of the justices in the majority were asked to recuse themselves from the case because they had openly advocated for same-sex marriage, violating standards to preserve judicial impartiality. Without their votes, the case would have gone the other way.
Then there was the U.S. Supreme Court’s own opinion just two years earlier, in the Defense of Marriage Act case, in which the court said states have exclusive power over marriage.
And there also are those who point out that the Constitution doesn’t mention marriage but does dictate that everything not mentioned in the document is left to the states and the people.
As WND reported, Ruth Ginsburg, who voted in favor of same-sex marriage, has performed same-sex wedding ceremonies and made supportive public statements. Justice Elena Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.
Critics contend the two justice appear to be violating judicial ethics rules that require recusal from a case in which there is even the appearance of a conflict of interest.
Foundation for Moral Law explained that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Rabbi Jonathan Cahn, author of the New York Times bestseller “The Harbinger” and the inspiration behind the “Isaiah 9:10 Judgment” movie, criticized the Supreme Court’s assumption that it has the authority to redefine marriage.
At a prayer event in Washington, he said: “The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage. That the event should even take place is a sign this is America of [George] Washington’s warning … a nation at war against its own foundation.”
Washington warned the smiles of heaven can never be expected on a nation “that disregards the eternal rules of order and right which heaven itself hath ordained.”
“Justices, can you judge the ways of God? There is another court and there is another judge, where all men and all judges will give account,” he warned.
“If a nation’s high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal,” he said.
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol.
The United States Conference of Catholic Bishops is calling “same-sex marriage” an “intrinsic evil.”
In Johnson County, officials voted “to affirm and go on record that Johnson County is vehemently opposed to the Supreme Court’s decision in Obergefell et al v. Hodges and supports the decision of any elected/appointed official challenging that unconstitutional decision.”
In Greene County, officials adopted a very similar statement that pointed out that “since this country’s founding [states] have regulated and defined marriage without interference from the federal government or its courts.”
In McMinn County, officials pointed out the text of the Ninth and 10th Amendments to the U.S. Constitution “reserves all powers not explicitly delegated to the federal government to the people and the states.”
WND also reported just weeks ago when dozens of top legal scholars from the likes of Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University issued a statement encouraging all state and federal officials to treat the Supreme Court’s recent creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to have settled the law of the United States,” said the statement from the American Principles Project.
“We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons. To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evidence in Obergefell.”