Judges pressed to actually stick to state law

Alabama probate judges do not have the discretion to ignore their state constitution and begin issuing marriage licenses to same-sex couples, contends the latest brief in a legal battle over the status of marriage.

"Alabama probate judges have no discretion to violate the law of Alabama, the constitution of Alabama, and the clearly expressed will of the people of Alabama," said a reply brief submitted to the state Supreme Court.

In fact, they have no more discretion to do that than they do to follow "the courts of Hawaii, Massachusetts or Timbuktu," the brief states.

At issue are the state's constitutional and statutory provisions designating marriage in the state as a union only of a man and a woman after they were struck down by a federal district judge.

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In dozens of other states, federal judges also have imposed same-sex "marriage" on populations that voted against it, but in Alabama, Supreme Court Chief Justice Roy Moore ordered the judges to follow the state constitution, not the federal judge's order.

He wrote that there is no constitutional basis for the federal ruling, contending the court is without authority or jurisdiction.

Even left-leaning pundits have admitted there is a foundation for Moore's order, because the probate judges were not part of the case in which Judge Callie Granade ruled.

Also, the federal judge's district does not include all of the locations where the judges work. And the defendant in the case was the state's attorney general, who has no authority to grant marriage licenses. He is part of the executive branch of the government, while the judges are part of the judicial branch.

Also, court precedent in Alabama confirms a federal judge's ruling is not necessarily binding on the state or its officials, because state courts already had ruled in the case, and they have an equal responsibility to interpret the Constitution.

"We are in a constitutional crisis in America. Government officials from probate judges to the president of the United States are ignoring the rule of law and arrogantly creating their own laws," said Mat Staver, founder of Liberty Counsel.

"A trial court's decision about the constitutionality of a federal question applies only to that case; it does not overturn the Alabama Constitution," continued Staver. "Legislators make laws, not judges, not presidents. Americans fought the Revolutionary War to win the right of a representative form of governance; we cannot give it up now amidst this battle over same-sex marriage."

Liberty Counsel, on behalf of several state organizations, filed a request with the state Supreme Court asking that the judges be ordered to follow the state constitution and state law.

In several separate filings, the probate judges essentially told the state Supreme Court that Alabama should fold on the issue and obey the federal court judge.

If activist judges "follow the recommendations of federal courts in cases to which they are not parties, they could follow those federal courts – both trial and appellate – that have upheld the constitutionality of natural, man-woman marriage, consistent with the Alabama Constitution and law, [but they] do not want to follow those decisions," Liberty Counsel observed.

The state court judges "are not parties to the federal court case that purported to invalidate Alabama's marriage laws and constitution, and they do not dispute that the federal court has no jurisdiction over them," the brief explains.

The submission explains that the Alabama residents certainly have standing to seek the enforcement of an official's duties on matters of public concern.

"Only three short years ago, this court unanimously held that it has original jurisdiction over extraordinary writ applications to require probate judges to perform their ministerial duties," the brief says.

Further, it states: "Relators have public standing to seek enforcement of Alabama's marriage laws by mandamus because a probate judge's duty to issue marriage licenses in accordance with those laws is unquestionably a duty owing to the public."

The brief also notes that a non-binding federal trial court order does not transform a ministerial duty into a discretionary duty.

The judges claim their preference is to "allow the issue to be worked out through the proper legal channels by the proper legal authorities," the brief says, but observing "the proper legal channels" and voluntarily disregarding Alabama's marriage laws in "respect" of a non-binding federal order are mutually exclusive positions, the brief said, "no probate judge can do both."

"Because Judge Granade has no jurisdiction over respondents, her opinions have no more application to respondents than the opinions of courts from distance states (or countries). Respondents would be foolhardy to argue that they 'may certainly follow' the rulings of faraway trial courts. Their content with respect to judge Granada in equally meritless."

When the judges responded earlier, WND reported they were urging the state Supreme Court to throw in the towel since the U.S. Supreme Court is expected to rule on the issue within months.

As WND reported, Moore sent a memorandum to the state’s 68 probate judges Feb. 8 saying they are not bound, according to federal court precedent, to follow Granade's order Jan. 23 striking down the state's prohibition of same-sex marriage.

The probate judges are caught in the dilemma of being sued if they follow the state constitution and being found in contempt if they follow the federal court ruling.

The mandamus action was brought by Liberty Counsel on behalf of Alabama Policy Institute and the Alabama Citizens Action Program.

Christian evangelist Franklin Graham, who heads both the relief and development group Samaritan's Purse and the Billy Graham Evangelistic Association, put the case in perspective earlier.

His Facebook posting challenged the dozens of orders from mostly federal judges across the country that have imposed same-sex marriage on populations that voted against it.

"No earthly court has jurisdiction over the infallible Word of God," he said.

The petition by the citizens' groups was just the latest move in an escalating fight in Alabama over a lone federal judge's order that the state recognize same-sex marriage, overruling voters who approved an amendment to the state constitution defining the institution as the union of one man and one woman.

The federal judge, Granade, admitted one of the main points of the petitioners – that she lacked jurisdiction over the judges because they were not parties to the case – in an earlier ruling.

Judge Roy Moore

"Judge Granade herself was ultimately forced to concede this point in her order denying the Searcy plaintiffs' motion to hold Judge of Probate Don Davis in contempt for violating the Searcy injunction … the plaintiffs claimed that Judge Davis violated the Searcy injunction by not opening the marriage license division."

However, in denying the motion, Granade "acknowledged that Judge Davis was not a party to the case, and was not ordered to do anything by the Searcy injunction."

Granade ruled: "Plaintiffs have offered no authority by which this court can hold Davis in contempt or order any of the relief sought."

She later reopened the already-decided case to add Davis as a defendant so that she could issue an order against him.

The filing from the nonprofit legal group Liberty Counsel was based on Moore's unusual order.

"Effective immediately," Moore had ordered, "no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with ... the Alabama Constitution."