Good News or Bad News? Making Sense of What Happened at the Alabama Supreme Court

The Supreme Court was wrong when it denied Dred Scott his rights and said, “blacks are inferior human beings.” And the Court was wrong when Justice Oliver Wendell Holmes wrote in Buck v. Bell, “three generations of imbeciles are enough,” thus upholding Virginia’s eugenics law that permitted forced sterilization. Shamefully, that decision was cited during the Nuremburg trials to support the Nazi eugenic holocaust.

In these earlier cases, the definition of “human” was at issue. Now the definition of “marriage” is at issue. The Constitution does not grant a right to redefine marriage — which is nonsensical since marriage intrinsically involves a man and a woman. Nor does the Constitution prohibit states from affirming the natural created order of male and female joined together in marriage.

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

—the Pledge in Solidarity to Defend Marriage, a statement of commitment to uphold natural marriage drafted prior to the Supreme Court’s Obergefell ruling and signed by more than 53,000 people

On Friday, March 4, 2016, the Alabama Supreme Court issued an important ruling on marriage. The opinion of the court was especially significant because it was, in part, a response to Obergefell, the US Supreme Court’s ruling of June 26, 2015 that redefined marriage nationwide to include same sex couples. Yet, reading several different headlines, one might wonder in just what direction the Alabama Supreme Court went with its decision.

Here, on the one hand, are three headlines that tilted the news one way.

Yet on the other hand, these headlines appeared on conservative websites.

A casual observer might be forgiven for wondering whether the Alabama Supreme Court’s decision upheld or undermined marriage. Previously, on March 3, 2015, the Alabama Court had ruled strongly in favor of traditional marriage. It did so based on the state’s Sanctity of Marriage Amendment and the Alabama Marriage Protection Act,  both of which the court said were constitutional. Accordingly, in a 7-1 ruling, the justices ordered the state’s probate judges to stop issuing marriage licenses to same-sex couples, despite the opinion of Callie V.S. Granade, a Federal District Judge who had ruled otherwise.

In a report dated March 10, 2016 titled The Gay Marriage Legal Battle Just Entered Uncharted Territory in Alabama, Nate Madden explains, “Following the June 28 Obergefell v. Hodges ruling, the Alabama Supreme Court requested the parties [that had been involved in the state marriage case] file additional documents.” The Alabama Citizens Action Program and the Alabama Policy Institute submitted petitions to end same-sex marriage in Alabama, and they hoped the court would affirm the petitions. However, it instead dismissed them. Eric Johnston, who represented the plaintiffs, said, “We’re disappointed. What I had hoped was this court would affirm its decision, which would have required further review by the U.S. Supreme Court. They did not do that.”

The dismissal of the petitions caused supporters of same-sex marriage and many in the mainstream media to cheer. You can even sense the celebrative tone in these statements from a Reuters report of the Alabama high court’s decision:

The Alabama Supreme Court on Friday affirmed the right to same-sex marriage, dismissing a challenge by conservative religious groups that opposed such unions.

In a one-sentence order, the high court turned aside a lawsuit by the Alabama Citizens Action Program and the Alabama Policy Institute questioning the landmark U.S. Supreme Court ruling last year that effectively allowed same-sex unions.

“It is ordered that all pending motions and petitions are dismissed,” the court said in ending the legal battle.

Yet this isn’t the whole story. The legal battle, in fact, has not ended—although the March 4, 2016 ruling of the Alabama Supreme Court arguably does close the chapter on this particular case. Even so, another chapter begins. Recall that Nate Madden’s feature, cited above, is titled The Gay Marriage Legal Battle Just Entered Uncharted Territory in Alabama. Americans need to know that the Justices of the Alabama Supreme Court didn’t simply dismiss petitions; they went to say a great deal about Obergefell and about traditional marriage. Even now, in the wake of Obergefell, the Court also “left undisturbed” the order to probate judges it had issued a year prior. That order, as we have noted, upheld the Alabama State Constitution’s provision on marriage and directed probate judges not to issue marriage licenses to same-sex couples.

Why would the Court dismiss the motions and petitions plaintiffs had filed? We cannot know fully; however, the fact that the justices left in place their previous ruling speaks volumes about the Court’s position on Alabama’s marriage laws and on the US Supreme Court’s overreach in Obergefell. Keep in mind the US Constitution says nothing about marriage, and it certainly says nothing about a right to same-sex marriage.

Moreover, as we emphasized in a previous post, for supporters of traditional marriage, the prevailing question isn’t How can Obergefell be most directly challenged? but How can it be most effectively challenged? At least some of the justices may very well have felt that, although Obergefell was an erroneous ruling, affirming traditional marriage beyond the actions the Court already had taken essentially would have invited the US Supreme Court to rule directly against Alabama’s marriage laws. Alabama was not part of the Obergefell case from the 6th Circuit and therefore, arguably, the Supreme Court’s ruling did not apply in Alabama. (The 6th Circuit includes Kentucky, Michigan, Ohio, and Tennessee.) According to legal expert Mat Staver, it actually “only applies to the parties in that particular case [the parties in Obergefell].”

The March 4, 2016 press release from the Family Research Council is both informative and instructive. It names specific justices and affirms their opinions. I quote the release here in its entirety.

Family Research Council Commends Alabama Supreme Court Justices for their Concurring Marriage Opinions

WASHINGTON, D.C. – Family Research Council President Tony Perkins made the following comments in response to the Concurring Opinions of Chief Justice Moore and Justices Murdock, Bolin and Parker of the Alabama Supreme Court, which properly characterized the U.S. Supreme Court’s Obergefell opinion as without constitutional basis:

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“We applaud the Justices of the Alabama Supreme Court who have exposed the constitutional flaws in the U.S. Supreme Court’s lawless ruling that imposed marriage redefinition on all fifty states.

“Chief Justice Moore, Justice Murdock, Justice Bolin, and Justice Parker have boldly and clearly annunciated constitutional truths for the generations to come, declaring that the U.S. Supreme Court was without authority to do what it did in Obergefell. Instead of solving anything, the U.S. Supreme Court has politicized itself and delegitimized itself in the eyes of the American people.

“Polls show that the American people are increasingly concerned with the future of the U.S. Supreme Court. This is becoming an important factor in their voting.  They are tired of the Court preempting social consensus by imposing its views on all fifty states, as it did with abortion and marriage.

“We commend these Justices for standing for the Constitution and speaking for the tens of millions of Americans whose voices were stripped away by the U.S. Supreme Court last summer,” concluded Perkins.

Let’s conclude by actually looking at some of the statements in the March 4 ruling made by the justices Tony Perkins named. Eloquently and forcefully, they describe the situation in both Alabama and the United States.

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Chief Justice Roy Moore:

I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefell is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution.…

Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefell is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution.…

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. The majority seeks to invoke the grief, sorrow, and compassion associated with a Greek tragedy. 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.

Abandoning the role of interpreting the written Constitution, the majority has instead decided to become the supposed “voice” of the people, discerning the people’s sentiments and updating the document accordingly. The function of keeping the Constitution up with the times, however, has not been delegated to the Court—or to Congress or the President; that function is reserved to the states under Article V.

Justice Glenn Murdock:

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 it. Governments throughout history have done so. But governments cannot change its essential nature. Marriage is what it is. No less so than any naturally occurring element on the periodic table.

Yet, here we are. The courts undertake to change—or at least declare a change in—the essential nature of the thing itself. It is not just that the existence of such an ability would make it impossible to communicate and maintain a rule of law (which it does) or even to communicate truths from one person or time to another (which it also does). To assume the ability to declare such a change presumes there is no objectively ascertainable, universally applicable and immutable— “unalienable” in the words of the Declaration of Independence—truth about the thing.

The postmodern philosophy of truth this represents is that each individual can decide for himself or herself what is true. In contrast, the Declaration of Independence and the United States Constitution reflect, and the drafters of the one and framers and ratifiers of the other believed in, a philosophy of objectively ascertainable truth. Truth that is external to each of us. Truth that informs a common value system against which to consider one another’s ideas and conduct. Only out of such a universal truth can there arise “certain rights” that can themselves be universal—and unalienable.

So, in the end, perhaps the real question is this: Can the United States Supreme Court decide upon some philosophy of truth different from that assumed by the framers of the Constitution and by the Constitution itself—the same Constitution that gives that Court its very existence and its authority to make decisions? And impose this different philosophy of truth upon the people of this country? Where is the authority for that?

Justice Michael F. Bolin:

[T]he Obergefell majority pulled from thin (legal) air a redefinition of marriage that is based not on any fundamental right deeply rooted in this Nation’s history and tradition, but rather on its self-declared beliefs that same-sex couples should be allowed to marry because “[t]he nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality”; “[m]arriage responds to the universal fear that a lonely person might call out only to find no one there”; “[t]heir hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions”; “[t]hey ask for equal dignity in the eyes of the law”; and “[t]he Constitution grants them that right.” 570 U.S. at ___, 135 S.Ct. at 2599, 2600, and 2608. Yielding to current social mores and temporal societal policy to recognize a fundamental constitutional right in a way not intended for the judicial branch of government, the majority in Obergefell, in the last phrase quoted above, is better understood to be saying: “We simply think that the Constitution should, and hereby does, grant them that right.”

The above-stated beliefs and accompanying conclusion, properly excoriated by the four Obergefell dissenters, are legislative rather than judicial in tone and nature and, again, ignore Supreme Court precedent to reach a desired societal result, which, as noted by Justice Scalia, “diminish[es] [the] Court’s reputation for clear thinking and sober analysis.” 576 U.S. at ___, 135 S. Ct. at 2630 (Scalia, J., dissenting). Rather,

“[f]or today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.” 576 U.S. at ___, 135 S. Ct. at 2640-41. (Alito, J., dissenting) (emphasis added).…

I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State’s entire statutory licensing scheme governing “marriage” to the point of rendering it incapable of being enforced prospectively.

Justice Tom Parker:

I concur in the issuance of the certificate of judgment and in the dismissal of the pending motions and petitions. Dismissal, as distinct from denial, is not a decision on the merits. Thus, this Court is not denying on the merits matters of vital importance concerning the effect—or lack thereof—of Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), on such issues as the issue of religious-liberty rights of individuals.

I concur specially to state that Obergefell conclusively demonstrates that the rule of law is dead. “Five lawyers”*—appointed to judgeships for life** and practically unaccountable***  to the more than 320 million Americans they now arbitrarily govern—enlightened by “new insights” into the true meaning of the word “liberty,” determined that “liberty” means that Americans have a new fundamental right only now discovered over 225 years since the Constitution was adopted. “Five lawyers,” who have treated the Constitution as “a mere thing of wax … which they may twist, and shape into any form they please,”**** determined to impose their enlightenment on this nation in spite of the vast majority of the states having democratically refused again and again to redefine the divinely initiated institution of marriage. In marching this country “forward” to their moral ideal, the “five lawyers” composing the majority in Obergefell have trampled into the dust the last vestiges of the legitimacy of the United States Supreme Court.

Obergefell is not based on legal reasoning, history, tradition, the Court’s own rules, or the rule of law, but upon the empathetic feelings of the “five lawyers” in the majority. What the late John Hart Ely said of another decision can be said of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973). The majority in Obergefell does not set forth authorities that lead to its conclusion; it sets forth only sentiments that support its whim in this case to create a fundamental constitutional right. In order to reach this conclusion, the majority in Obergefell, having ascended to a new understanding of human liberty, threw off the restraints of the rule of law and history. Having by judicial will set themselves free from those “shackles,” the majority then ushered in a new era of “liberty”: court-pronounced dignity. Justice Hugo Black, an Alabamian, provided an apt description of what the United States Supreme Court has done in Obergefell in his dissent in In re Winship, 397 U.S. 358, 384 (1970):

“When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends the majority’s own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the ‘law of the land’ and instead becomes one governed ultimately by the ‘law of the judges.’”

*Chief Justice Roberts referred to the Obergefell majority three times as “five lawyers,” 576 U.S. at ___, 135 S. Ct. at 2612, 2624 (Roberts, C.J., dissenting), instead of Justices, thus caustically pointing out that the five were not acting in a judicial role.
**The dissents in Obergefell refer eight times to “unelected” judges.
***The dissents in Obergefell refer twice to the “unaccountable” judges.
****Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819, 12 The Works of Thomas Jefferson 137 (Paul Leicester Ford ed., G.P. Putnam’s Sons, 1905).

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As these justices demonstrate in their statements, the debate is far from over. Much is yet to be resolved—and for resolution to occur, much needs to be reasserted and reestablished. Among other things, we need bring our country back to the ideals of its Founders, and this will be no small or easy task. Yet it is our duty, our calling.

Therefore, let us all, to the degree that we can, lend our support to the effort to restore natural marriage in the United States.

The Alabama Supreme Court has laid the foundation for this critical work.

 

Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.