In what could become a precedent for court power, one state is set to defy the U.S. Supreme Court's recognition of "same-sex marriage" more than three months after "five lawyers" defied the wishes of a majority of voters in dozens of states.
The fight over marriage in Alabama had reached the boiling point before the Supreme Court issued its Obergefell opinion in June, with a federal judge demanding acknowledgement of same-sex marriage and the Alabama Supreme Court issuing a permanent injunction against the order.
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But when the Supreme Court decision was announced in June, Alabama did not, like other states, suddenly declare the issue resolved. Instead, it invited submissions of arguments over the applicability of the ruling in the state.
And the decision on whether the injunction remains in effect hasn't been released.
It's coming to a head now because several probate judges – the only people in Alabama authorized to issue marriage licenses – are becoming concerned about their own constitutional protections and have asked the state's high court to issue its decision.
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Opponents pose a number of problems with the Obergefell decision.
Two of the justices in the majority were asked to recuse themselves from the case because they had openly advocated for same-sex marriage, violating standards to preserve judicial impartiality.
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 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.
Eunie Smith of the Eagle Forum of Alabama and John Killian Sr., former president of the Alabama Baptist State Convention contend in a newly published commentary that the judicial branch doesn't have the constitutional power to legislate a right to same-sex marriage.
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"Five 'unelected judges' – as Chief Justice Roberts called them in his criticism of Obergefell – dealt an arrogant blow to God, the family, nature, the rule of law, the Constitution of the United States and the democratic process," they write. "Simply because their opinion has been accepted as the 'law of the land' by the media and the left, doesn't mean that the rest of us have to close our eyes to the truth or pretend that the Constitution allows the judicial branch to legislate a new right to same-sex marriage."
The Alabama Supreme Court declined a WND request to comment on the issue.
The dispute now centers on a request by Washington County Probate Judge Nick Williams and Elmore County Probate Judge John Enslen to the state Supreme Court for an emergency "protective order" to address their sincerely held beliefs.
The request comes in light of the prosecution and jailing of Rowan County, Kentucky, Clerk Kim Davis, was who imprisoned by U.S. District Judge David Bunning for refusing to issue marriage licenses to same-sex couples.
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The commentary by Smith and Killing noted the petitions from Williams and Enslen haven't been answered.
"Alabamians elected justices to the Alabama Supreme Court with confidence that they would judge rightly in the fear of God, in step with the Constitution of the United States and the Alabama Constitution, and representative of the traditional values that Alabamians cherish. We anxiously await their decision," they wrote.
"Duty to God, the preservation of our constitutional republic, and the future of families and children require no less than a prompt and resolute decision in this case. The Alabama Supreme Court should act immediately to protect the sincerely held religious beliefs of our citizens and the sanctity of the institution of marriage – as adopted by 81 percent of Alabama voters. They should not leave the citizens of Alabama to wonder, 'Where is the Supreme Court of Alabama?'"
The two noted the problems that already have been created by the marriage decision.
"Confusion has reigned in the wake of Obergefell. A Christian clerk [Davis] was jailed for refusing to issue same-sex marriage licenses. A physician was found guilty of warning patients about the dangers of homosexuality. Leading LGBT activist groups rallied for the legalization of prostitution. The Browns, of 'Sister Wives,' cited Obergefell in their fight to legalize polygamy. Protests are erupting over transgender boys being allowed in the girls' bathroom. The Southern Poverty Law Center is pumping funds into their 'Teaching Tolerance' curriculum – aimed at brainwashing children to accept perversion in our public schools. Alabama probate judges who uphold what Alabama's law demands when it comes to marriage, receive frequent hate mail and threats designed to intimidate them into violating their religious beliefs about marriage.
"This is only the beginning. Obergefell will be a catalyst for the further deterioration of the family, religious liberty and the values and principles that have made America great. Massive litigation fees will be incurred as Christians in Alabama stand firm on their convictions in businesses, churches, and in the public square. Judicial activism following Obergefell will only intensify as the sentiments of men and women – no matter how 'supreme' – are allowed to trump the rule of law found in the plain text of the Constitution and the 'law of Nature and of Nature's God.'"
In Alabama, the case was filed in the state Supreme Court, which took original jurisdiction when the Alabama Policy Institute and Alabama Citizens Action Program asked the high court to affirm its original injunction and disregard Obergefell, a decision further undermined by the fact the U.S. Supreme Court minority court opinion said the majority was completely disconnected from the Constitution.
Dean Young, a former congressional candidate and pro-marriage activist, told WND there are probate judges in Alabama who are following the state Supreme Court's ruling and not issuing licenses to same-sex couples.
"They don't want to get treated like Kim Davis," he told WND.
And that, he said, means a state Supreme Court decision is needed.
See Young take the state Supreme Court decision to federal court:
The brief explained to the Alabama judges there is precedent in the U.S. for a state Supreme Court to reject a "U.S. Supreme Court mandate which is unlawful."
"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.
"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.
"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."
'Not a judgment'
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.
As WND reported, Ruth Ginsburg 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.
A brief from the Foundation for Moral Law 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."
The foundation pointed out in a submission to the Supreme Court: "Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: 'I think it's doubtful that it wouldn't be accepted. The change in people's attitudes on that issue has been enormous … It would not take a large adjustment.'"
Ginsburg's interview was with Bloomberg News on Feb. 12.
The controversy resurfaced, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.
The paper said that with "a sly look and special emphasis on the word 'Constitution,' Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States."
The decision, and the path the Supreme Court justices took to get to the point of mandating same-sex "marriage" across the nation, already has drawn warnings that God's judgment has been delivered to other nations who flout his will, and it might happen again.
WND reported when Franklin Graham of Samaritan's Purse and the Billy Graham Evangelistic Association hinted that Barack Obama is deliberately setting himself up in opposition to God.
On his Facebook page, Graham, who has kept up a steady stream of comments on the "gay"-rights agenda, brought up the subject again.
He noted Obama's decision to promote homosexuality with colored lights at the White House after the U.S. Supreme Court ruled June 26 the Constitution grants same-sex couples a right to marriage.
"He had the gall to disgrace the White House by lighting it up with the gay pride rainbow colors," Graham wrote. "This is arrogantly flaunting sinful behavior in the face of Almighty God. My advice? He might want to have some extra lightning rods installed on the roof of the White House."
His complete statement: "A lot has changed in three short years! Just three years ago, the president was on record as holding to the biblical definition of marriage. Now he can't say enough about his support for the LGBT agenda – and right after the Supreme Court’s decision to legalize same-sex marriage, he had the gall to disgrace the White House by lighting it up with the gay pride rainbow colors to celebrate. This is arrogantly flaunting sinful behavior in the face of Almighty God. My advice? He might want to have some extra lightning rods installed on the roof of the White House."
'Go to hell'
Graham is not the only leader to warn God will judge a nation that openly and willfully flaunts what the Bible for millennia has defined as sin.
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.
Cahn said America's biblical foundation was affirmed throughout history, and the nation came into existence "solely for the glory and purposes of God."
"No historian can rewrite that. No president can expunge that," he warned. "If a thousand angels swore on a thousand Bibles that this was not the case, it would in no way alter the fact. … America was brought into existence for the will and purposes of God."
He explained ancient Israel turned away from God.
"They drove God out of the government. They worshiped idols and served other gods. They celebrated immorality and they persecuted righteousness. The blessings of God were removed and replaced with judgments," he said.
Now, he said, "America has made the same mistakes."
Moving to directly confront President Obama, whose pro-abortion and pro-homosexual agenda has been unparalleled in American history, he questioned what happens when a leader places his left hand on the Bible to assume to highest office in the land but with his right hand "enacts laws that violate the laws of God."
"Mr. President, when you address the House, look up above the senators and the representatives, above the Supreme Court justices, you'll see a face, the only full visage in that wall. It is the face of Moses. ... It would say this, 'No man can overrule the laws of God. No judgment of man can stand against the judgment of God'."
America, he warned, is faced with a critical decision: "Choose you this day whom you will serve … if the Lord be God, then follow Him. If Baal, then follow him and go to hell."