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Religious Tolerance logo

Recognition of same-sex marriage (SSM) & LGBT equality

Part 5:
Alabama: Chief Justice Moore of the AL Supreme
Court states District Court ruling invalid (Cont'd).
Current status. District Judge Granade issues
clarification. Judges' association reverses stance.
Confusion fades.

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In this web site, the acronym "SSM" refers to same-sex marriage. Also, "LGBT"
refers to the Lesbian, Gay, Bisexual and Transgender/Transsexual community

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This topic is continued from the previous essay.

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thumb down image2015-JAN-27: Roy S. Moore, Chief Justice of the Supreme Court of Alabama criticized the District Court's marriage ruling (Cont'd):

Referring to recent changes in the definitions of marriage across the U.S., Chief Justice Moore wrote:

"Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that 'reverent morality which is our source of all beneficent progress in social and political improvement,' then we must act to oppose such tyranny! ... "

I ask you to continue to uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity, Be
advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority" 1

There is a consensus among constitutional experts that:

  • The federal Constitution contains no references to marriage, and

  • Because of that, authority to define marriage eligibility lies with the individual states.

However, there is a lack of agreement about the degree of freedom that the individual states have when each defines marriage eligibility:

  • Most liberal constitution experts assert that however a state defines marriage eligibility, it must not violate the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. Also, many experts feel the the full faith and credit clause of Article IV, Section 1 of the U.S. Constitution requires states to recognize marriages by same-sex couples that have been solemnized within other states.

  • Many conservative constitution experts assert that a state is free to define marriage eligibility in any way, even if it violates one or both clauses of the 14th Amendment. Also many experts feel that there is no obligation for a state to follow the full faith and credit clause and recognize out-of-state marriages by same-sex couples.

The U.S. District Court for the Southern District of Alabama and 43 additional federal courts mentioned by Chief Justice Moore have all taken the liberal position, that if a state's definition of marriage violates the 14th Amendment, it is then null and unenforceable. Chief Justice Moore appears to claim that such rulings are "specious pretexts," and that the constitutional bans remain valid.

At the core of this disagreement between the Chief Justice and the 44 federal courts appears to be a lack of agreement about the fundamental structure of the United States. The two options are:

  • The United States is a Pure Democracy where the people hold the ultimate power. This allows each state legislature to pass marriage laws -- or for voters pass amendments to the state constitution -- that define who can marry. They can do this in any way that they wish, without any restrictions.

    and

  • The United States is a Constitutional Democracy where the federal Constitution holds the ultimate power. Each state's definition of marriage is then required to follow the 14th Amendment to the federal Constitution and treat same-sex and opposite-sex couples equally. If a violation occurs, then the state's definition of marriage becomes void and unenforceable.

Chief Justice Moore believes that the federal Alabama District Court has no jurisdiction over Alabama marriage matters. His argument would appear to apply equally to other parts of the federal court system, including:

  • The 11th U.S. Circuit Courts of Appeals that has jurisdiction over Alabama, Florida and Georgia, and

  • The U.S. Supreme Court which has jurisdiction over the entire United States.

If so, then Moore may believe that the U.S. Supreme Court's decision on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee -- which is expected in mid-2015 -- will have no effect on marriage laws in Alabama and on the dozen or so other states that still ban same-sex marriage. But if his belief is true for same-sex marriage in 2015, it would seem to have been equally valid for interracial marriage in 1967. His logic would mean that interracial couples should not have been able to marry in the South for the past half century An interesting thought! Further, it would seem to apply to Brown v. Board of Education of Topeka (1954) which declared racially segregated states unconstitutional. Perhaps two generations of school children should not have been racially integrated in Alabama!

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2015-JAN-27: Status in Alabama of beliefs in same-sex marriage:

Beliefs seem to differ depending upon to whom one talks:

Person/group State ban on SSM valid District Court ruling valid? Plaintiffs' marriage valid? Other LGBT couples are able to marry? *
Judge Granade
No
Yes
Yes
Yes
Justice Moore
Yes
No
No
No
AL Pr. Judges
Association
Mostly
Yes
Yes
No
Some judges
No
Yes
Yes
Yes
LGBT community
No
Yes
Yes
Yes

* When the stay is lifted

The people of Alabama deserve better. The population of the state is about 5 million. Assuming that 90% of the population is heterosexual, that means that Alabama is home for the order of a half million gays, lesbians, and bisexuals -- including children who will discover that they are gay, lesbian or bisexual later in life. Each of them may wish to marry a person that they love and to whom they wish to make a lifelong commitment, either now or in the future. Resolving the conflict over marriage equality is no trivial matter. It should be given a high priority by everyone concerned.

Unfortunately, there does not seem to be a great deal of honest dialogue happening in Alabama to resolve this conflict. And so, the dispute will probably continue indefinitely into the future.

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2015-JAN-28: U.S. District Judge Granade issues clarification. The Alabama Probate Judges Association reverses its stand on marriage equality!

Brendan Kirby, writing for AL.com, commented on the Alabama Probate Judges Association's stand. The Association had stated that U.S. District Judge Callie V.S. "Ginny" Granade's order on JAN-23 only applied to the two plaintiffs in the case. He wrote:

"Lawyers for plaintiffs Cari Searcy and Kim McKeand, as well as same-sex marriage advocates and legal experts, roundly criticized that position."

Judge Granade's order had stated that the state's constitutional amendment and marriage statute that banned same-sex marriages in the state were unconstitutional and void. On JAN-28, she issued a clarification to her earlier order. It confirmed that her previous week's decision applied to the two plaintiffs in the case as well as to all other Alabamians. That makes sense to a lot of commentators, because a constitutional amendment and state statute are either constitutional or unconstitutional. They are either valid or void. It is difficult to see how they could be valid for two people in the state and not to everyone else.

Probate Judges and all other officials who work for the State take an oath of office to support at all times both the Constitution of the state of Alabama and the federal Constitution. This places them in an awkward position whenever the two Constitutions conflict. As noted above, the Association initially took the stand that the District Court ruling declaring the state bans on marriage by same-sex couples to be void and unenforceable applied only to the two plaintiffs in the case. The group concluded that the bans remained valid for the approximately half million other Alabamians who are gay, lesbian, bisexual, or who will discover later in their life that they are gay, lesbian or bisexual.

As a result of this clarification, the Association is now satisfied that the District Court order is valid across the state.

Association president, Monroe County Probate Judge Greg Norris, issued a statement stating that:

"It is the opinion of the Association, on the advice of legal counsel, that until the stay is lifted, probate judges cannot issue marriage licenses to same sex couples. However, on the occasion that the stay is lifted, same sex couples may apply for marriage licenses." 2

David Kennedy, who is one of the plaintiffs' lawyers, expressed the hope that when the temporary stay of the U.S. District Court's order ends on FEB-09 that there will be a "smooth and orderly transition." He said:

"We're certainly happy to hear that the Probate Judges Association has decided to follow Judge Granade's order and also reject Chief Justice Roy Moore's contention." 2

Although the District Court's stay expires automatically on FEB-09, it is quite possible that the 11th U.S. Circuit Court of Appeals will impose its own stay before that date.

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Chief Justice Roy S. Moore, Letter to Governor Robert Bently, Alabama Media Group, 2015-JAN-27, at: at: http://media.al.com/
  2. Brendan Kirby, "Alabama probate judges' group agrees decision voiding same-sex marriage ban applies to them," Alabama Media Group, 2015-JAN-28, at: http://www.al.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Alabama > here

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Copyright © 2015 by Ontario Consultants on Religious Tolerance
Originally written: 2015-JAN-28
Latest update: 2015-JAN-29
Author: B.A. Robinson

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