The Alabama Supreme Court is being urged to consider the damage done to states and the Constitution by the U.S. Supreme Court’s recent creation of “same-sex marriage” before it determines how the ruling applies in the state.

Liberty Counsel, in a brief on behalf of several family groups, contends there are four significant injuries occurring.

And the brief argues there is precedent in the U.S. for a state Supreme Court to reject a “U.S. Supreme Court mandate which is unlawful.”

Alabama has been a flashpoint for the marriage fight. When a federal judge ordered the state to impose same-sex marriage, the state Supreme Court refused, arguing it’s own interpretation of the Constitution was just as valid.

When the U.S. Supreme Court, by a 5-4 majority that included two justices who essentially had publicly lobbied for same-sex marriage by performing ceremonies while the court reviewed the case, legalized same-sex marriage, the Alabama court said it would accept arguments and motions for disposition of the cases in the state.

“There is existing precedent for a state’s highest court to reject an unlawful mandate from the U.S. Supreme Court,” said Liberty Counsel’s founder and chairman, Mat Staver. “The hope of our constitutional Republic rests upon state officials and American citizens who will refuse to allow five, black-robed judges to rob us of our free, representative form of government.

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“A judicial opinion without constitutional basis is not law and should not be followed by any state or citizen,” he said.

The brief submitted by Liberty Counsel to the state court notes that the Wisconsin Supreme Court refused to follow the U.S. Supreme Court opinion in Dred Scott, which “said that blacks were not entitled to full protection as citizens.”

The brief also argues for the state court to protect religious liberty there. It seeks protections for the constitutional rights of Alabama probate judges, some of whom have declined to issue any marriage licenses during the fight, and Christian business owners.

In other states, such as Oregon and Colorado, Christians have been prosecuted for holding fast to their Christian beliefs.

“Never before in America has a religious requirement been required to hold office or own a business, and it cannot begin now,” Staver said. “To require Christians to pull out pages of their Bible in order to hold office or own a business is anti-American and it is unconstitutional, despite what any judge may say otherwise.”

The brief notes that in his dissent from the marriage opinion, Justice Clarence Thomas warned, “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our nation has long sought to protect.”

And, it states, “Chief Justice John Roberts said it best: ‘[For] those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.'”

Justice Antonin Scalia warned, “This practice of constitutional revision by an unelected committee of nine … robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The brief explains the U.S. Supreme Court’s decision “is an assault on the rule of law … on Alabamian and American democracy … on natural law … on the constitutional right of free exercise of religion.”

“The willful act of the five lawyers in the majority is particularly egregious in light of what the same majority said only two years ago,” Liberty Counsel noted.

There, the Washington court said: “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. The definition of marriage is the foundation of the state’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests and the enforcement of marital responsibilities. 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.”

The brief said that as the court stated, the one man, one woman characteristic of marriage is “immutable.”

The family is the fundamental unit of society, the brief explains.

In the Wisconsin case, the brief explains that even though the U.S. Supreme Court overturned the state Supreme Court, “in a final act of defiance,” the state court “never filed the mandates” which required people to return “fugitive slaves” to their owners.

At that time, the Wisconsin court opined, “I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believe, I cannot hesitate in performing a clear, an indispensable duty.”

The court also declared the federal law unconstitutional.

The Wisconsin court said, “Here is a distinct recognition of the power and duty of state judges, not to be bound by all the acts of Congress, or by the judgments and decrees of the supreme federal court, or by their interpretation of the constitution and acts of congress, but by ‘this constitution’ ‘and the laws made in pursuance thereof.'”

Simply put, they found, a Supreme Court opinion that wasn’t founded in the Constitution was not a judgment.

“In the nearly 157 years since the U.S. Supreme Court’s purported reversal of [the state cases], the Wisconsin Supreme Court has never filed or accepted the U.S. Supreme Court mandates.”

The brief also urges the state court to ensure that officials are allowed to exercise their religious rights, including rejecting same-sex marriage.

To do otherwise is a violation of the First Amendment and Religious Test Clause of the Constitution, it argued.


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