The headlines regarding the Alabama Supreme Court’s decision last Friday on “same-sex marriage” trumpeted a victory for the homosexual community.
Among them were:
On an ABC station: “Alabama Supreme Court refuses to defy SCOTUS ruling on gay marriage.”
And another another station, WKRG, “Same Sex Marriage Petitions Dismissed by Alabama Supreme Court.”
Reuters reported, “Alabama high court tosses petitions challenging gay marriage,” but the story noted that it had been corrected to explain the petitions, not the case itself, were dismissed.
The Daily Mail said, “Alabama court rejects religious groups’ challenge to gay marriage: Affirmed the right to same-sex marriage.”
The Washington Post? It said, “Ala. Supreme Court dismisses petitions opposing same-sex marriage.”
NBC said, “Alabama Supreme Court refuses challenge to gay marriage.”
But in reality:
Alabama’s judges did defy the Supremes, the dismissed petitions were to overturn the court’s affirmation of one-man, one woman marriage, the court did not affirm the “right” to same-sex “marriage;” it rejected that, and the court “refused” to consider a challenge to its traditional marriage ruling.
WND reported at the time that the Alabama high court’s decision criticized the U.S. Supreme Court’s creation of same-sex marriage as “lawless” and left undisturbed its determination dating back to 2015 that the state’s Sanctity of Marriage Amendment and Marriage Protection Act, limiting marriage to one man and one woman, are constitutional and binding.
A legal team that took part in the case, Liberty Counsel, on Monday recounted the state court’s orders and rulings to demonstrate that its decision “upholding the marriage laws and ordering the probate judges to comply” remain in effect.
Liberty Counsel noted that on March 3, 2015, months before the U.S. Supreme Court narrowly established same-sex marriage, the Alabama Supreme Court issued a 135-page order upholding the state’s marriage laws and ordering certain named probate judges to stop issuing licenses to same-sex couples.
Then, Probate Judge Don Davis asked to be relieved of the order because it contradicted a federal court order that demanded the state establish same-sex marriage. On March 10, 2015, the state Supreme Court rejected the petition.
On March 12, the state court issued yet another order that “all probate judges” were included in the March 3 order.
On Friday, petitions related to the case were dismissed, but the underlying orders were affirmed in a certificate of judgment that got far less publicity than the order for dismissals.
In fact, Chief Justice Roy Moore wrote: “Today this court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.”
Mat Staver, chairman of Liberty Counsel, said some media “reported the opposite of what the Alabama Supreme Court did.”
“When the Alabama Supreme Court entered the judgment on its March 2015 order and dismissed the ALCU’s motion to reverse that order, the result was a clear victory for our case,” he said. “The Alabama Supreme Court order upholding the marriage laws and ordering the probate judges to comply with those laws still remains in effect.”
The Alabama Supreme Court rejected the 5-4 marriage opinion of the U.S. Supreme Court, he argued.
“While some of the Alabama Supreme Court justices wrote separate opinions ripping apart the U.S. Supreme Court, it is clear a majority of the court issued a judgment affirming that their prior orders upholding the marriage laws remain valid in Alabama,” said Staver.
Some probate judges in Alabama have been issuing marriage licenses to same-sex couples and others have not. Court officials confirmed to WND that should a complaint be filed over that action, it would be handled as would any other complaint about a judge.
WND’s report noted Moore’s description of the U.S. Supreme Court decision as “completely without constitutional authority, a usurpation of state sovereignty, and an effort to impose the will of ‘five lawyers,’ as Chief Justice Roberts stated … on the people of this country.”
“Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them,” he wrote in a scathing opinion attached to the order.
“Our forefathers would not have stood idly by to watch our liberties destroyed and our Constitution violated. James Madison stated in 1785 that ‘it is proper to take alarm at the first experiment on our liberties. … We revere this lesson too much, soon to forget it.’ … I believe that in the Obergefell opinion and the response of many to it, we may have forgotten that lesson sooner than we ought.”
Moore wrote that the U.S. Supreme Court ruling is “like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion.”
“Its consequences for our society will be devastating, and its elevation of immorality to a special ‘right’ enforced through civil penalties will be completely destructive of our religious liberty,” Moore wrote.
Overturned millions of votes
Same-sex marriage was mandated in 2015 by the bare 5-4 U.S. Supreme Court majority of Anthony Kennedy, Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. John Roberts, Clarence Thomas, Samuel Alito and the late Antonin Scalia opposed it.
The opinion overturned millennia of established legal precedent regarding marriage as well as the will of tens of millions of voters in dozens of states.
Moore added: “Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the ‘rule of law’ and the ‘law of the land?’ Sir William Blackstone’s Commentaries on the Laws of England became the ‘manual of almost every student of law in the United States’ during this nation’s formative years. Blackstone stated that ‘the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.'”
WND reported just a few weeks ago when marriage activists in Alabama pressured the court for a ruling.
The underlying case 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 establishment of same-sex marriage in the state.
Then Moore ordered probate judges to follow the state constitution, which recognizes marriages only between a man and a woman. The state court’s order eventually replaced Moore’s order.
After the U.S. Supreme Court’s decision, the state court “invited the parties … to address the ‘effect of the Supreme Court’s decision on this court’s existing orders in this case.'” All of the petitions now have been dismissed.
Moore was not the only justice unhappy with the U.S. Supreme Court.
Alabama Associate Justice Michael Bolin wrote that the opinion was “without any constitutional basis” but said the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.”
Bolin said it is “without dispute that the concept of same-sex marriage is not deeply rooted in either this nation’s or this state’s history and tradition – or frankly anywhere.”
“To the contrary, from its earliest days, circa 1800s, Alabama has, with little modification, provided a statutory scheme for the formal licensing and recognition of marriages as being between a man and a woman.”
He said in 1998 and 2006, the legislature and the people “recommitted expressly to the vital nature of the meaning of marriage in our present statutory scheme.”
Not only did the state exercise its sovereign authority to define marriage, as permitted under the Ninth and 10th Amendments, the U.S. Supreme Court majority, just a few years earlier, even acknowledged that authority, in the Windsor case.
Then, abruptly, “without comment concerning, or apology regarding, those words, only two years later the same Justice Kennedy … reversed course and decreed that all states are now required by the Constitution to issue marriage licenses to same-sex couples,” he wrote.
The reversal, he noted, was not based on any fundamental right, but “rather on … self-declared beliefs that same-sex couples should be allowed to marry.”
Rule of law is dead
And Alabama Justice Tom Parker said the U.S. Supreme Court’s marriage decision “conclusively demonstrates that the rule of law is dead.”
Further, the U.S. Supreme Court is damaging itself, he said.
“In marching this country ‘forward’ to their moral ideal, the ‘five lawyers’ comprising the majority in Obergefell have trampled into the dust the last vestiges of the legitimacy of the United States Supreme Court,” he wrote. “There appears to be no restraint on the judiciary, because ‘five lawyers’ believe that they may simply decide, with no legal support whatsoever, that a particular fundamental right be created because they think it fair.
“This is not the rule of law, this is despotism and tyranny.”
Those were “evils,” he said, that necessitated “the break with King George and Great Britain.”
Alabama Justice Glenn Murdock said, “A group of judges can declare all it wants that two people of the same sex can ‘marry,’ but in the words of The Federalist No. 78, they cannot change ‘the nature and reason of the thing’ called marriage.”
He continued: “Governments did not and do not create the institution of marriage. A civil government can choose to recognize that institution; it can choose to affirm it; and it can even take steps to encourage … But governments cannot change its essential nature. Marriage is what it is.”
Critics also have raised a number of other concerns about the U.S. Supreme Court opinion.
For one, two of the justices in the majority, Kagan and Ginsburg, 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.
2 performed same-sex ‘weddings’
As WND reported, 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.
The Foundation for Moral Law asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The foundation argued 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, has 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.”
And officials from several counties in Tennessee have adopted statements opposing the Supreme Court.
WND also reported 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.”