It was no less than the U.S. Supreme Court, in its ruling striking down DOMA, that determined states have the right to define marriage, argued the Alabama Supreme Court its decision upholding the state’s ban on same-sex marriage as constitutional.
Alabama’s highest court Wednesday ordered the state’s probate judges to follow the state constitution and law and refrain from issuing licenses to same-sex duos.
The ruling escalated the conflict that arose when U.S. District Judge Callie Granade ordered the state constitution changed, and state Supreme Court Chief Justice Roy Moore argued she had not authority to make that decision.
Moore recused himself from the latest ruling on a complaint brought by several citizens groups asked the state Supreme Court to address the issue since Granade’s opinion conflicted with Moore’s administrative instructions to the judges.
In its order, the Alabama court wrote: “An open question exists as to whether Windsor’s ‘equal dignity’ notion works in the same direction toward state laws concerning marriage as it did toward DOMA. The Windsor court stated that ‘the history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power, was more than an incidental effect of the federal statute.”
The Windsor case was the U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act, which recognized marriage for all federal purposes as the union of one man and one woman.
Attorney General Eric Holder and President Obama announced they would refuse to defend DOMA, even before the high court struck it down.
The Alabama court noted: “In Windsor, New York’s law allowed same-sex couples to obtain marriage licenses. Thus, the ‘dignity’ was conferred by the state’s own choice, a choice that was ‘without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.'”
But it then raised a question: Why, if New York could make that choice, would Alabama be deprived of exactly the same choice?
“The problem with DOMA was that it interfered with New York’s ‘sovereign’ choice,” the court said. “Alabama ‘used its historic and essential authority to define the marital relations’ and made a different ‘sovereign’ choice than New York. If New York was free to make that choice, it would seem inconsistent to say that Alabama is not free to make its own choice, especially given that ‘the recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.'”
The problem the argument poses for same-sex marriage advocates is that nearly all orders for states to recognize same-sex marriage have come from federal judges. The judges have simply overridden the will of the state’s residents who voted, often overwhelmingly, to define marriage as the union of one man and one woman.
That was the scenario in California, where the fight over marriage ended up at the U.S. Supreme Court, which ruled only on a technicality – the standing of those supporting the state constitution – and not the merits of the case.
In fact, of the three dozen states that now have been forced to recognize same-sex marriage, only a handful enacted it through their own legislative or administrative procedures.
The Alabama court noted: “Only 12 states have accepted same-sex marriage as a result of choices made by the people or their elected representatives. The 25 other states that now have same-sex marriage do so because it has been imposed on them by a federal court.”
Alabama’s ruling said proponents of same-sex marriage “often retort that there is no reason both the traditional definition and the new definition of marriage cannot coexist.”
“It simply assumes that the definitions are not mutually exclusive,” the opinion said.
“Redefining marriage by definition implies that the traditional definition is inaccurate. In point of fact, we are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other.
“Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage. Some other states, like New York, have more recently chosen the new definition. The United States Constitution does not require one definition or the other because, as the Windsor court noted, ‘by history and tradition,’ and one should add, by the text of the Constitution, ‘the definition and regulation of marriage … has been treated as being within the authority and realm of the separate states.’
“That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary,” the state ruling said.
The citation of the U.S. Supreme Court could be relevant to an upcoming related case.
The case pending before the U.S. Supreme Court now is from the 6th U.S. Circuit Court of Appeals, which affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman.
The appeals opinion said: “Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit.”
To affirm the rights to same-sex marriage might require the justices to abrogate their comments in the Windsor ruling, experts note.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage between only one man and one woman.’ Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty,” the Alabama ruling said.
The opinion was signed by six judges. Another partly concurred, and one dissented on procedural grounds.
Moore, who did not participate in the decision, had issued an order earlier to probate judges, the only ones in Alabama to grant marriage licenses, to follow the state’s law and constitution.
At the time, he told WND in an interview that court precedents from throughout the state’s history make it clear that Granade’s decision, and a temporarily delayed order implementing it, was out of line.
Moore also said then he agreed with California Supreme Court Justice Marvin Baxter’s dissent from that court’s creation of same-sex marriage in 2008.
Baxter warned the court’s decision to overturn a “deeprooted” standard for marriage opened a Pandora’s box.
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
“I’ve said the very same thing. Incest is next. Or polygamy,” Moore said.
The Alabama ruling pointedly noted that if love was the only factor in marriage, then “polygamy also would be constitutionally protected…”
And it noted that the previous times courts have defined marriage as a “fundamental right,” they have been referring to traditional marriage.
The U.S. Supreme Court has ruled, the state ruling said, “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce … [and] the Constitution delegated no authority to the government of the United States on the subject of marriage and divorce.”
“Proponents of the new definition of marriage therefore leave us with an untenable contradiction. On the one hand, they insist that expanding the definition of marriage to include relationships between members of the same sex constitutes nothing more than offering marriage licenses to another class of individuals. It is akin to modifying the age of consent for marriage …. On the other hand, proponents of same-sex marriage contend that this new definition of marriage is so fundamental that the Constitution prohibits states from maintaining the traditional definition of marriage, yet they are unable to articulate a fundamental element of their definition of marriage that would justify government sponsorships of it.
“Thus, under their own theory, either the aspect of marriage the same-sex partners insist should be included in the institution is not fundamental to its nature, in which case Alabama’s laws enforcing the traditional definition of marriage are not unconstitutional, or marriage is a fundamental right but the characteristics upon which same-sex partners necessarily must hinge their definition on marriage fail to explain government’s interest in marriage.”
The only characteristic of marriage “that has remained unchanged through history” is that it is between members of the opposite sex, the court said.
“It creates the family, the institution that is almost universally acknowledged to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society,” the ruling said.
And besides, the ruling said, “Government is concerned with public effects, not private wishes. The new definition of marriage centers on the private concerns of adults, while the traditional definition focuses on the benefits to society from the special relationship that exists between a man and a woman, i.e., the effects for care of children, the control of passions, the divisions of wealth in society, and so on.
“The relevant inquiry is whether also recognizing same-sex marriages would further [the state’s] interests,” the court wrote.