Marriage activists in Alabama have filed complaints with the state Judicial Inquiry Commission against the nine members of the state Supreme Court because they have failed to rule on the application of the U.S. Supreme Court’s decision in favor of same-sex “marriage.”
The case has been pending in the state court since the nation’s high court ruled last year that the Constitution allows same-sex couples to marry.
Now the complaints, on behalf of Barbour County Tea Party, Alabama Patriots, Rainy Day Patriots, Conservative Christians of Alabama, Common Sense Campaign, Christian Development and Renewal Ministries and several ministers have been filed against Chief Justice Roy Moore and justices Michael Bolin, Tommy Bryan, Greg Shaw, Glenn Murdock, Tom Parker, Kelli Wise, Allen Main and Lyn Stuart.
The state case originally was brought on behalf of the Alabama Policy Institute and others. It came after U.S. District Judge Callie Granada, prior to the U.S. Supreme Court’s ruling, ordered the creation of same-sex “marriage” in the state.
Then Moore issued an administrative order to probate judges, the only ones in the state authorized to grant marriage licenses, that they were required to follow the state constitution, which recognizes marriages only between a man and a woman.
The state judges then defined the scope of Granade’s order: “Alabama law allows for ‘marriage’ between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage licenses contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”
Then came the U.S. Supreme Court’s decision, a narrow 5-4 majority that the dissent described as unconnected to the Constitution.
“Three days later, on June 29, 2015, the Alabama Supreme Court invited the parties … to address the ‘effect of the Supreme Court’s decision on this court’s existing orders in this case.”
Subsequently, Washington County Probate Judge Nick Williams sought a declaratory judgement, which was joined later by another judge. Still later, a third judge filed a petition asking for a ruling.
Meanwhile, comments came in from the American College of Pediatricians, the Southeast Law Institute and others.
Last month, Moore repeated the earlier order to probate judges, noting that the U.S. Court of Appeals for the Eighth Circuit and a district court in Kansas ruled the U.S. Supreme Court’s opinion was binding only on the Sixth Circuit, not the Eighth.
“While we have confidence in the wisdom and the integrity of the honorable justices on the Alabama Supreme Court, we cannot but acknowledge that such confidence weakens with each passing day that leaves [the case] unresolved,” the complaints said.
“Failure of the Alabama Supreme Court to rule expeditiously in API – despite their own request for briefs, an emergency petition, and a petition for declaratory order in a critical time of legal conflict, suggests nothing less than a dereliction of duty to constituents and other elected officials who are looking to the court for direction. Canon 3 (Canons of Judicial Ethics) was no doubt established to prevent this this kind of extended silence and the negative effect such silence has had in the State of Alabama,” the complaints read.
In a statement released by the parties filing the complaints, Terry Batton said the case is not only about God’s institution of marriage, but “the future of our country, the rule of law, and the preservation of our Constitution and separation of powers.”
Danny Joyner, commander of Alabama Patriots, added: “Never have our families and our faith been attacked so vehemently by so many evil and immoral forces. One day everyone will stand before God and be judged whether they stood and glorified Him or chose to remain mute and by so doing deny Him. It is time to decide whether to be on The Lord’s side or not.”
When Moore renewed his order in January, he told WND the conflict is a good teaching moment for Americans.
“There was a lot of confusion in the state,” he said. “That confusion results in disorder. As the administrative head of the judicial [branch in Alabama], my duty is to clarify. All I’m saying in this order, is that until there is a further decision by the [state] Supreme Court, the existing orders remain in full force.”
He pointed out in that order that the U.S. 8th Circuit Court of Appeals “recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction.”
“The United States District Court for the District of Kansas,” he said, “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 that the appeals court ruling supports the concept that a decision affects only cases before the court and not 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.
He said it’s important to remember that the U.S. Supreme Court doesn’t make law; the legislatures of the states and Congress do.
Moore noted that the job of the courts is to apply the law to individual cases, which the Supreme Court did for cases in the 6th U.S. Circuit Court of Appeals in creating same-sex marriage.
And he said a “constitutional ruling by a state Supreme Court is just as binding as the federal court circuit in which the state courts are situated.”
Since the U.S. Supreme Court’s ruling, there has been a surge of activity in opposition.
WND reported lawmakers in South Carolina have proposed a law that would withdraw recognition of same-sex marriage.
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.
The minority in the 5-4 U.S. Supreme Court marriage decision last June had warned that it would create constitutional conflicts.
The Charismatic Episcopal Church for Life argued in court that unless the marriage ruling is issued “in pursuance of’ the United States Constitution, then it is not binding.”
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.
Critics also have raised a number of other 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, apparently 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 asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The Foundation 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.”
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.”