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Religious Tolerance logo

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

Part 10: Alabama:
Governor Bentley issues statement.
Chief Justice Moore issues another letter.
State officers file briefs with Supreme Court.

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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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wedding rings2015-FEB-03: Governor Bentley (R) issued a public statement concerning Court of Appeal's decision to not stay District Court ruling:

He wrote:

"I am disappointed by the 11th Circuit's decision today. The issue of same sex marriage is a complicated one that involves all levels of government. My request to the 11th Circuit was simply to ask that the stay be held until the Supreme Court can rule once and for all this year or pending the fully briefed 11th Circuit appeal of the issue. I support the Attorney General's decision to ask the U.S. Supreme Court for a stay of the 11 Circuit's decision." 1

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2015-FEB-04: Chief Justice Roy Moore of the Alabama Supreme Court repeats his earlier message:

Justice Moore has sent what he referred to as an "advisory" opinion to Alabama's probate judges saying that they do not need to issue marriage licenses to same-sex couples on or after FEB-09 when the District Court's stay is currently scheduled to end.

He wrote:

"I hope this memorandum will assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law. ..."

"[Judges] would in my view be acting in violation of their oaths to uphold the Alabama Constitution if they issued marriage licenses prohibited under Alabama law." 2

He referred to the decision by U.S. District Judge Ginny Granade in late January. It declares Alabama's bans on same-sex marriage to be unconstitutional and void, Justice Moore wrote that there is nothing in her ruling that:

"... requires Alabama probate judges to issue marriage licenses that are illegal in Alabama. ... Lower federal courts are without authority to impose their own interpretation of federal constitutional law upon the state courts. Furthermore, they have absolutely no legitimate authority to compel state courts to redefine marriage to include persons of the same sex." 103 [Emphasis added to the original]

That belief appears to contradict dozens of federal court rulings since mid-2013. Freedom to Marry -- a leading national pro-marriage equality group -- states that:

"There have been 61 victories for the freedom to marry since June 2013, when the U.S. Supreme Court struck down [as unconstitutional] the core of the ...[federal] Defense of Marriage Act in Windsor v. United States. Forty pro-marriage rulings have been issued in federal [District] court, sixteen have been issued in state court, and five have been issued by a federal appellate court [ i.e. by a U.S. Circuit Court of Appeals]." 4

Freedom to Marry considers a "victory" to mean that a court ruling upholds marriage equality.

The two Alabama rulings issued by U.S. District Judge Granade in Searcy v. Strange and Strawser v. Strange are the most recent of the 40 cases that have been issued by federal courts legalizing same-sex marriage. These rulings have resulted in the legalization of marriage for same-sex couples in dozens of states, although some rulings -- like the one in Alabama -- have been stayed pending appeals.

Chief Justice Moore appears to be applying the theory of nullification.

According to Wikipedia, this theory states that:

"... the States formed the Union by an agreement (or "compact") among the States, and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Under this, the compact theory, the States and not the federal courts are the ultimate interpreters of the extent of the federal government's power. Under this theory, the States therefore may reject, or nullify, federal laws that the States believe are beyond the federal government's constitutional powers. ..."

Courts at the state and federal level, including the U.S. Supreme Court, repeatedly have rejected the theory of nullification. ... The courts have decided that under the Supremacy Clause of the [federal] Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the [federal] Constitution." 5 [Emphasis added to the original]

Some southern states attempted to use nullification to prevent application of the U.S. Supreme Court's unanimous ruling in Brown v. Board of Education (1954) which declared school segregation laws to be unconstitutional. The U.S. Supreme Court unanimously rejected Arkansas' later attempt at nullification in the related case Cooper v. Aaron (1958).

However, Chief Justice Moore appears to believe in a variation of nullification that is slightly different from that used in school desegregation battles. In his recent statements on same-sex marriage in Alabama, he appears to accept the U.S. Supreme Court's authority to interpret the federal Constitution, but believes that the states can ignore such interpretations from federal District Courts and federal Circuit Courts of Appeal.

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2015-FEB-03 to 05: Officers of the State of Alabama file briefs with Justice Clarence Thomas of the U.S. Supreme Court:

  • Defendant AG Luther Strange (R) filed a motion, and issued a public statement:

    "I am disappointed in the 11th U.S. Circuit Court's decision not to stay the federal district court's ruling. The confusion that has been created by the District Court's ruling could linger for months until the U.S. Supreme Court resolves this issue once and for all.

    My office vigorously defended the constitutionality of Alabama's marriage laws in the Searcy and Strawser cases, and we have appealed the court's orders in those cases. Today, we filed a motion with the U.S. Supreme Court to stay the federal court's decision until the Supreme Court finally rules on the issue in June." 6

  • Lawyers for Governor Robert Bentley (R) filed an Amicus Curiae (Friend of the Court) brief in support of AG Strange's motion asking for a stay. Some of their claims are:
    • The federal judiciary has a duty to not rule on a state's definition of marriage.

    • "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

    • The District Court and 11th Circuit Court did not accept the state's argument that children have a right to be connected to their biological parents and biological kin.

    • The two courts did not define which parts of the state's marriage laws are unconstitutional.

    • "The literal enforcement of the Orders would lead to absurd and unconstitutional results."

    • Many existing laws in the state assume that all marriages are between one man and one woman. Neither court has explained which of these laws are now unconstitutional.

    • "Because the duties [of a married couple] are grounded in nature and not [in] the will of the lawmaker, the State has no power to reconstitute the fundamental rights of the biological family."

    • etc. 7

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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. "Gay marriage in Alabama: Gov. Bentley's statement on court's decision not to stay ruling," ABC News, 2015-FEB-05, at:http://www.abc3340.com/
    2. Miranda Leitsinger, "Alabama's Top Judge: State Doesn't Have to Allow Gay Marriage," NBC News, 2015-FEB-03, at: http://www.nbcnews.com/
    3. Brian Lyman, "Moore: Probate judges not required to issue same-sex marriage licenses," Montgomery Advertiser, 2015-FEB-04, at: http://www.montgomeryadvertiser.com/
    4. "Marriage rulings in the Court," Freedom to Marry, 2015-JAN-27, at: http://www.freedomtomarry.org/
    5. "Nullification (U.S. Constitution)," Wikipedia, as on 2015-JAN-25, at: http://en.wikipedia.org/
    6. "Gay marriage in Alabama: AG Luther Strange 'disappointed' in court's decision not to stay ruling," ABC News, 2015-FEB-05, at:http://www.abc3340.com/
    7. "Alabama Governor Robert Bentley files brief in Supreme Court in support of a stay of same-sex marriages," Scribd, 2015-FEB-04, at: http://www.equalityontrial.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-FEB-03
    Latest update: 2015-FEB-07
    Author: B.A. Robinson

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