The U.S. Supreme Court justices are supposed to uphold the nation's Constitution, "not invent a new one," two organizations argue in a plea that the Alabama Supreme Court resist the federal creation of "same-sex marriage."
"It is in the best interest of children and this state to preserve the fundamental and immutable nature of marriage between one man and one woman," a brief filed recently by the American College of Pediatricians told the state court.
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"If accepted, Obergefell's policy implementation will deliberately and intentionally deny children the father or the mother so essential to their well-being. … This court should also be reminded that the Constitution of the United States is the 'supreme law of the land' and is never trumped by an opinion that ignores the text, structure, and delegated jurisdictions of that document."
The doctors' brief was joined by one from the Charismatic Episcopal Church for Life, which said "the members of this court have sworn an oath of office to uphold the law, defined as 'this Constitution, and the law of the United States which shall be made in pursuance thereof.'"
Unless the marriage ruling is issued 'in pursuance of' the United States Constitution, then it is not binding on this court," the church's brief said.
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The brief argued the Constitution had nothing to do with the Obergefell majority's opinion, as Chief Justice John Roberts has asserted in his scathing dissent.
Mat Staver, chairman of Liberty Counsel, said there is "a growing number of voices calling for resistance to the lawless marriage opinion."
"Supreme Court justices swear an oath to uphold the Constitution, not invent a new one," he said. "When they put their personal opinions in writing without one shred of constitutional support, the people have a right to question their authority."
Staver said the Supreme Court justices "do not have unlimited authority."
"The Alabama Supreme Court justices have also sworn an oath to uphold the Constitution, and they should act in accordance with the law, not the opinion of five unelected lawyers."
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Liberty Counsel represents the Alabama Policy Institute and the Alabama Citizens Action Program, which have contended before the state court that the federal ruling doesn't apply to the state.
The fight over marriage in Alabama reached the boiling point before the Supreme Court issued its Obergefell opinion in June, with a federal judge demanding recognition of same-sex marriage and the Alabama Supreme Court issuing a permanent injunction against the order.
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 regarding the applicability of the ruling in the state.
And the decision on whether the injunction remains in effect hasn't been released.
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Several probate judges – the only people in Alabama authorized to issue marriage licenses – recently asked for a ruling to resolve the dispute.
Opponents pose a number of problems with the Obergefell decision.
For one, 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 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.
The Alabama Supreme Court declined a WND request to comment on the issue.
Bedrock of society
The pediatricians contend: "Marriage between one man and one woman has long been recognized as the bedrock of society – predating all political and ecclesiastical institutions. The marriage relationship has been acknowledged by the state because of its singular ability to procreate, maintain a family structure where children can thrive, and insure the continuity of civilization."
That remains unchanged, they said.
Then the Supreme Court "purported to create a new right for same-sex couples to enter the world of legal marriage and family – with no apparent thought to the inevitable problems children of those relationships will face. … Tomorrow's children should not be subject to a novel social experiment that only insures higher changes of failure, confusion and harm."
It notes the "preposterous" court decision that said: "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality."
"This court's reaction is no doubt similar to Justice Scalia's: 'Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think that Freedom of Intimacy is abridged rather than expanded by marriage."
The state, the pediatricians say, has a "legal and constitutional recourse" supporting their duty to resist: the rule of law.
And it's perfectly appropriate for the court to recognize a "higher law" in making its determination.
"It has long been established that an essential cornerstone of American jurisprudence and constitutional interpretation is an acknowledgement of a higher law and the moral code given by the Judeo-Christian God of the Bible. The Declaration of Independence, part of the organic law of our nation, acknowledges the facts that our rights come from God and that the 'laws of Nature of Nature's God' laid the groundwork."
The Supreme Court in Washington, they wrote, has "limited jurisdiction," and the Constitution, the "supreme law of the land," is "never trumped by an opinion that ignores the text, structure and delegated jurisdictions of that document."
"For these reasons, among others, Alabama law restricting marriage to opposite sex partners has a rational basis."
The church brief states flatly, "The Supreme Court has no authority to mandate state action."
"If an opinion of the United States Supreme Court is repugnant to the plain meaning of the United States Constitution – or even repugnant to previous Supreme Court decisions on point – is this [state] court left to blindly comply? Shall the unelected members of the United States Supreme Court don the fictitious powers of 'Judge Dredd,' theatrically declaring: 'I am the law'?"
It said this may be a case where "state governments, in seeking to protect their own sovereignty guaranteed by the enumerations of the Constitution itself, and looking to the Constitution as the supreme law, therefore reach a differing result from the will asserted by the highest judiciary of the central government."
Both documents cite the action of the Wisconsin Supreme Court when it 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 state court never did comply with that Supreme Court ruling.
The church argued,: "A few loose references to equal protection and due process does not make a 'fundamental right.' … The majority opinion from Obergefell has unequivocally overstepped its bounds."
"Opinions of the United States Supreme Court not made in pursuance of the Constitution are not binding on this [state] court," the brief explained.
'Raw judicial power'
It warned of the "raw judicial power" of the Supreme Court justices and called on the state court to protect Alabama residents.
In Alabama, the pending 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.
At the Supreme Court, some of the same concerns were raised. 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."
As WND reported, Ruth 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.
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.
The United States Conference of Catholic Bishops is calling "same-sex marriage" an "intrinsic evil."
In Johnson County, officials voted "to affirm and go on record that Johnson County is vehemently opposed to the Supreme Court's decision in Obergefell et al v. Hodges and supports the decision of any elected/appointed official challenging that unconstitutional decision."
In Greene County, officials adopted a very similar statement that pointed out that "since this country's founding [states] have regulated and defined marriage without interference from the federal government or its courts."
In McMinn County, officials pointed out the text of the Ninth and 10th Amendments to the U.S. Constitution "reserves all powers not explicitly delegated to the federal government to the people and the states."
WND also reported just weeks ago 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."