The Alabama Supreme Court on Friday dispensed with what probably was the last legal case over the U.S. Supreme Court's creation last summer of "same-sex marriage," dismissing several related petitions and ripping the nation's highest court as "lawless."
The Alabama court also left undisturbed its determination that the state's Sanctity of Marriage Amendment and Marriage Protection Act, limiting marriage to one man and one woman, are constitutional and should be followed by the state's probate judges, the only ones in Alabama who can issue marriage licenses.
Alabama Chief Justice Roy Moore wrote in the order dismissing several petitions in the case: "As stated at the beginning of this special concurrence, the certificate of judgment in this case does not disturb the March 2015 orders of this court that uphold the constitutionality of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act. For that reason, as explained above, I concur."
He said the Supreme Court's marriage ruling "is completely without constitutional authority, a usurpation of state sovereignty, and an effort to impose the will of 'five lawyers,' as Chief Justice Roberts stated … on the people of this country.
"Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them," he wrote in a scathing submission.
"Our forefathers would not have stood idly by to watch our liberties destroyed and our Constitution violated. James Madison stated in 1785 that 'it is proper to take alarm at the first experiment on our liberties. ... We revere this lesson too much, soon to forget it.' … I believe that in the Obergefell opinion and the response of many to it, we may have forgotten that lesson sooner than we ought."
Moore wrote that the U.S. Supreme Court ruling is "like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion."
"Its consequences for our society will be devastating, and its elevation of immorality to a special 'right' enforced through civil penalties will be completely destructive of our religious liberty."
He said it's immoral because it "elevates into a fundamental right that which was historically regarded by our law as 'the infamous crime against nature.'"
It's unconstitutional because it "ignores the text" of the Constitution, he wrote.
And its "tyrannical," because the creation of same-sex marriage will be "used to vilify Americans who are unwilling to assent to the new orthodoxy."
Moore also contended the five justices in the majority had no authority for their decision.
"That a majority of the court may identify an 'injustice' that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment," he wrote.
"Although the court could suggest that the Constitution would benefit from a particular amendment, the court does not possess the authority to insert the amendment into the Constitution by the vehicle of a court opinion and then to demand compliance with it."
Overturned millions of votes
Same-sex marriage was mandated for the nation in 2015 by the bare 5-4 majority made up of Anthony Kennedy, Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. John Roberts, Clarence Thomas, Samuel Alito and the late Antonin Scalia opposed it.
The majority found in the Constitution a right to same-sex marriage, overturning millennia of established legal precedent regarding marriage as well as the will of tens of millions of voters in dozens of states.
The decision that dismissed the Alabama case petitions, but not the March 2015 orders to probate judges, came in a case actually launched before the U.S. Supreme Court's decision, and was virtually unanimous.
But it elicited remarkably harsh criticism of the five justices in the U.S. Supreme Court majority.
Moore, whose willingness to be a no-nonsense buttress against judicial activism is legend, cited the "novel departures from the text of the Constitution" employed by the majority.
He noted Scalia already described those as the "abandonment" of "disciplined legal reasoning" that descended to "the mystical aphorisms of the fortune cookie."
Some of the majority's comments:
- "Marriage responds to the universal fear that a lonely person might call out only to find no one there."
- The "hope [of homosexuals] is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions."
- "A truthful statement by same-sex couples of what was in their hearts had to remain unspoken."
"The opinion appeals more to emotion than law, reminding one of the 1974 song 'Feelings' by Morris Albert, which begins: 'Feelings, nothing more than feelings.' The court's opinion speaks repeatedly of homosexuals being humiliated, demeaned, and denied 'equal dignity' by a state's refusal to issue them marriage licenses.
"Riding a tidal wave of emotion, the ensuing tears and pathos then suffice to fertilize a new constitutional right nowhere mentioned in the Constitution itself," Moore wrote.
"Chief Justice Roberts portrays the majority as thieves who are 'stealing' the marriage issue from the people. Justice Scalia uses a similar metaphor, stating that the majority 'robs the people of ... the freedom to govern themselves.' These metaphors identify the essence of the majority's actions: an illegal displacement and usurpation of the democratic process."
He issued a warning, too: "The definition of marriage as the union of one man and one woman has existed for millennia and has never been considered an 'ill tendency.' By contrast, the court's attempt the redefine marriage is 'a dangerous fallacy which at once destroys all religious liberty.' … Obergefell promises to breach the legal protections that have shielded believers from participating in acts hostile to their faith."
Moore told WND that his order should be viewed as a judicial explanation on how Americans should respond to an unconstitutional ruling from the Supreme Court. He said it highlights how the American judiciary has become, gradually over the years, the "supreme law of the land," actually replacing the Constitution.
'It sometimes may happen that the judge may mistake law'
Further, he said: "Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the 'rule of law' and the 'law of the land?' Sir William Blackstone's Commentaries on the Laws of England became the 'manual of almost every student of law in the United States' during this nation's formative years. Blackstone stated that 'the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.'"
WND reported just a few weeks ago when marriage activists in Alabama pressured the court for a ruling.
The underlying case was brought on behalf of the Alabama Policy Institute and others. It came after U.S. District Judge Callie Granada, prior to the U.S. Supreme Court's ruling, ordered the establishment of same-sex marriage in the state.
Then Moore ordered probate judges to follow the state constitution, which recognizes marriages only between a man and a woman. The state court's order eventually replaced Moore's order.
After the U.S.. Supreme Court's decision, the state court "invited the parties … to address the 'effect of the Supreme Court's decision on this court's existing orders in this case.'" All of the petitions now have been dismissed.
Moore was not the only justice unhappy with the U.S. Supreme Court.
Justice Michael Bolin wrote that the opinion was "without any constitutional basis" but said the "Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source."
'Not deeply rooted ... anywhere'
But it pointed out, "It is without dispute that the concept of same-sex marriage is not deeply rooted in either this nation's or this state's history and tradition – or frankly anywhere. To the contrary, from its earliest days, circa 1800s, Alabama has, with little modification, provided a statutory scheme for the formal licensing and recognition of marriages as being between a man and a woman."
He said in 1998 and 2006, the legislature and the people "recommitted expressly to the vital nature of the meaning of marriage in our present statutory scheme."
Not only did the state exercise its sovereign authority to define marriage, as permitted under the Ninth and 10th Amendments, the U.S. Supreme Court majority, just a few years earlier, even acknowledged that authority, in the Windsor case.
Then, abruptly, "without comment concerning, or apology regarding, those words, only two years later the same Justice Kennedy … reversed course and decreed that all states are now required by the Constitution to issue marriage licenses to same-sex couples."
The reversal, he noted, was not based on any fundamental right, but "rather on … self-declared beliefs that same-sex couples should be allowed to marry…"
He said he "regrettably" needed to criticize the opinion, although he recognized the 5-4 majority is "binding authority for today – subject to being properly, and lawfully, reexamined and reconsidered in the future."
"My translation – it is because, without foundation, they say it is," he said, describing the opinion as both "elitist" and "condescending."
And Justice Tom Parker said, "Obergefell conclusively demonstrates that the rule of law is dead."
Further, the U.S. Supreme Court is damaging itself, he said.
"In marching this country 'forward' to their moral ideal, the 'five lawyers' comprising the majority in Obergefell have trampled into the dust the last vestiges of the legitimacy of the United States Supreme Court," he wrote. "There appears to be no restraint on the judiciary, because 'five lawyers' believe that they may simply decide, with no legal support whatsoever, that a particular fundamental right be created because they think it fair.
"This is not the rule of law, this is despotism and tyranny."
'Evils' of King George
Those were "evils," he said, that necessitated "the break with King George and Great Britain."
Justice Glenn Murdock said, "A group of judges can declare all it wants that two people of the same sex can 'marry,' but in the words of The Federalist No. 78, they cannot change 'the nature and reason of the thing' called marriage."
He continued, "Governments did not and do not create the institution of marriage. A civil government can choose to recognize that institution; it can choose to affirm it; and it can even take steps to encourage … But governments cannot change its essential nature. Marriage is what it is."
Mat Staver of Liberty Counsel, which brought the dispute to the state court on behalf of Alabama Policy Institute and others, said, "The ruling last year by the Alabama Supreme Court was historic, and is one of the most researched and well-reasoned opinions on marriage to be issued by any court in the country. Today's opinion by the Alabama Supreme Court calling the U.S. Supreme Court's marriage opinion 'illegitimate' will be remembered in history like the 'shot heard around the world.'"
He continued, "This is a clear victory for the rule of law and an historic decision by the Alabama Supreme Court. The judgment makes permanent the Alabama Supreme Court's order prohibiting probate judges from issuing marriage licenses to same-sex couples. The Alabama Supreme Court has rejected the illegitimate opinion of five lawyers on the U.S. Supreme Court."
Critics also have raised a number of other concerns about the Supreme Court opinion.
For one, two of the justices in the majority, Kagan and Ginsburg, were asked to recuse themselves from the case because they had openly advocated for same-sex marriage, apparently violating standards to preserve judicial impartiality. Without their votes, the case would have gone the other way.
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.
2 performed same-sex 'weddings'
As WND reported, 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.
Foundation for Moral Law asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The Foundation 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."
Rabbi Jonathan Cahn, author of the New York Times bestseller "The Harbinger" and the inspiration behind the "Isaiah 9:10 Judgment" movie, has 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."
And officials from several counties in Tennessee have adopted statements opposing the Supreme Court.
WND also reported 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."