Alabama chief justice Roy Moore issued an order yesterday prohibiting the state’s probate judges from issuing any licenses for same sex marriages. They “have a ministerial duty,” wrote the judge, “not to issue any marriage license contrary" to the Alabama constitution, which bans homosexual marriage.
Alabama’s amendment upholding natural marriage had overwhelming support from Alabama’s legislators and the people of Alabama themselves. The proposed constitutional amendment passed the Alabama State House 85-7, the Alabama State Senate 30-0, and was enacted by the people with 81% of the vote in June of 2006.
Judge Moore perceptively and accurately notes that the Supreme Court’s opinion in Obergefell is directed only at same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee. I would argue even more precisely the Supreme Court’s decision affects only the plaintiffs involved in the Obergefell case.
The Eighth Circuit was quite explicit that the jurisdiction of the Supreme Court’s ruling is limited in scope. It stated flatly that "The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee -- not Nebraska." In two other cases the Eighth Circuit repeated its conclusion: “not Arkansas” and “not South Dakota.”
Moore cites an abiding rule of jurisprudence in his order (citations omitted):
“The above cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court. ‘A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings... [N]o court can make a decree which will bind anyone but a party ... no matter how broadly it words its decree."
In other words, the 16 couples who were the plaintiffs before the Supreme Court get to have their same-sex marriages, but no one else is entitled to one based on this ruling alone.
This, by the way, is exactly how Abraham Lincoln responded to the infamous Dred Scott opinion. He declared that he would accept the authority of the Court in the case of Dred Scott, the plaintiff before the Court, but vigorously rejected the notion that it had any binding effect anywhere else. “This decision,” said Lincoln, “was wanting in any claim to public confidence, and it is not 'resistance,' it is not factious, or even disrespectful, to treat it as not having quite established a settled doctrine for the land.”
The State of Wisconsin flatly refused to submit to the Dred Scott ruling at all.
Note that Judge Moore is not defying the Supreme Court’s ruling in Obergefell. He is simply and quite correctly saying it does not apply to the state of Alabama. Alabama’s natural marriage amendment remains in force because the Court has never ruled on Alabama’s constitutional prohibition.
Let’s not forget that the Supreme Court issues “opinions” not “rulings.” And since we live in America, they are certainly entitled to their own opinions. But it is the Supreme Court, not the Supreme Branch. A Supreme Court ruling cannot possibly be “the law of the land,” as the Human Rights Campaign pretends. This is because Article I, Section 1 says quite explicitly that “All legislative powers herein granted shall be vested in a Congress of the United States.” “All” means “all,” as in every last little bit.
How much “legislative power” does the Supreme Court have? Zero. None. Nada. Zilch. It is constitutionally impossible for the Supreme Court to make law. Thus not a single one of its rulings can possibly be “the law of the land.” It doesn’t have that kind of authority.
Thus Judge Moore “ordered and directed” that probate judges “have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act,” and correctly added, “Nothing in the United States Constitution alters or overrides this duty.”
Let’s review. The Constitution gives the federal government, including the judiciary, absolutely no authority whatsoever to dictate marriage policy to the states. You can read the Constitution from front to back, left to right, right to left, backwards, upside down and in Sanskrit and you will find nary a mention of the word “marriage” at all. This means, according to the Tenth Amendment, it’s a matter for the states to decide. And consistent with the Constitution, the people of Alabama have decided. Overwhelmingly.
The only one in this sorry mess so far who is actually upholding the Constitution is Justice Roy Moore. He is following the Constitution of the United States, which does not authorize the central government to meddle in marriage, and he is upholding the plain meaning of the Alabama state constitution, which it is his sworn duty to do.
This is not civil disobedience. It is constitutional obedience. Of the highest and most noble order.
It’s not Judge Moore who is defying the law of the land. He’s upholding it and defending it. No, the ones defying the law of the land would be any Alabama probate judges who defy Judge Moore’s legally authorized order. Let’s find out who the people are who have a genuine respect for the rule of law.
Judge Moore is showing the United States the way to reclaim marriage from an out-of-control and tyrannical federal judiciary. It’s simple. Just uphold the Constitution.
Every court in every one of the 31 states with marriage amendments should do exactly as Judge Moore has done, and reclaim the right of the people of their state to govern themselves without the self-anointed elites on the other side of the country ordering them around.
It’s time to get every GOP candidate for the presidency on record: “Do you support Judge Moore’s directive - yes or no?” We particularly need to get responses from those candidates who have argued against judicial supremacy and for the right of states to settle the marriage question for themselves.
A new president who would pledge to unequivocally support Judge Moore and any other governor or state judiciary who would follow his lead could take an enormous step back toward sanity and normalcy, and uphold genuine constitutional authority in the process.
Social conservatives need to know who among the presidential candidates will be a fighter for us on the fundamental issue of natural marriage. It’s time for somebody to step up. Who will it be?