A legal brief in the Alabama case against a federal judge's attempt to establish same-sex "marriage" in the state, despite the will of voters and the state Supreme Court, warns the U.S. Supreme Court's legitimacy will be undermined if it redefines marriage.
The Supreme Court, which is expected to announce its decision this month, is addressing the 6th U.S. Circuit Court of Appeals ruling that states have the right to define marriage for themselves.
The brief filed with the Alabama Supreme Court said that if the U.S. Supreme Court "holds that the United States Constitution requires all fifty states to redefine marriage, such a decision will not necessarily end the conflict" between federal Judge Calle Granade's Jan. 23 ruling that Alabama's Sanctity of Marriage Amendment, defining marriage as the union of one man and one woman, is unconstitutional and the Alabama Supreme Court's order barring the issuance of marriage licenses to same-sex couples.
"Given the self-evident reasoning" against Granade's ruling, the brief said, "such a decision by the Supreme Court would naturally and immediately raise a question of legitimacy."
The Alabama case arose when two men, James Strawser and John Humphrey, sued the state attorney general because they couldn't get a marriage license. Granade ruled in their favor, but in Alabama only probate judges grant marriage licenses, and they are part of the judiciary, not the executive branch, to which the attorney general belongs.
Granade at first changed her ruling by adding a probate judge as a defendant. Then she made it a class-action case to include all homosexuals as plaintiffs and all probate judges as defendants.
Meanwhile, the state Supreme Court, in a case brought by the Alabama Policy Institute, Alabama Citizens Action Program and a probate judge, ruled that the probate judges were obligated to follow the state constitution, not the federal judge, and not issue marriage licenses to same-sex couples.
The citizens groups now have returned to the state Supreme Court, asking for clarification of its ruling, because Granade "purportedly" expanded the plaintiff and defendant classes.
Granade wrote: "The question common to the entire defendant class is whether their enforcement of Alabama's laws barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The resolution of this question will resolve the claims against all of members of the class in one stroke."
But her arguments were the same as the arguments the state Supreme Court already had ruled against, the brief argues.
"Then, in the portion of the class injunction granting preliminary relief, Judge Granade brazenly purported to directly overrule this court's Mandamus Order," the brief explains. "As this court recognized in the Mandamus Order, neither the lower federal courts nor state courts have the authority to review the decisions of the other 'coordinate system' on federal questions."
The earlier state Supreme Court ruling found, "Legal principles and holdings from inferior federal courts have no controlling effect here."
The brief argues that in its order, the Alabama Supreme Court "rendered a binding judicial decision that rested on its own interpretation of the United States Constitution."
The original opinion said: "As it has done for approximately two centuries, Alabama law allows for 'marriage' only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United State Constitution alters or overrides this duty."
The brief asserted there is "no legal justification for Judge Granade's unprecedented attack upon the integrity of this court."
The motion seeks an order "reaffirming the continued effectiveness of the Mandamus Order."
"This court's Mandamus Order, and perhaps its disposition of this motion, may well inform the United Sates Supreme Court's sense of legitimacy, and 'what it can get away with,' in its impending marriage decision," the family groups argued.
According to Mat Staver, founder of Liberty Counsel, who filed the motion on behalf of the family groups, "Judge Granade has no more power to overrule the Alabama Supreme Court than she does to rewrite same-sex 'marriage' into the U.S. Constitution.
"The Alabama Supreme Court's prior Mandamus Order, and perhaps its disposition of this motion, should send a message that any ruling by Judge Granade or even the United States Supreme Court inventing a right to same-sex 'marriage' under the U.S. Constitution is illegitimate."
WND reported earlier as the case went back and forth between state and federal courts.
That included when Granade admitted she lacked jurisdiction over the judges because they were not parties to the case. She added Probate Judge Don Davis to the case, so she could impose her order on him.
The state Supreme Court said its March 3 decision ordering judges not to issue marriage licenses to same-sex couples "serves as binding statewide precedent."
"To endure compliance with that precedent, we also entered on that date and as part of our opinion an order specifically directing Alabama probate judges not to issue marriage licenses contrary to that precedent," the court said.
When the state Supreme Court overruled Granade's order, the justices cited the U.S. Supreme Court's decision striking the federal Defense of Marriage Act, which recognized only the union of a man and a woman as a marriage for federal purposes.
In its order, the Alabama Supreme Court wrote: "An open question exists as to whether Windsor's 'equal dignity' notion works in the same direction toward state laws concerning marriage as it did toward DOMA. The Windsor court stated that 'the history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power, was more than an incidental effect of the federal statute."
The Alabama court noted: "In Windsor, New York's law allowed same-sex couples to obtain marriage licenses. Thus, the 'dignity' was conferred by the state's own choice, a choice that was 'without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.'"
But it then raised a question: Why, if New York could make that choice, would Alabama be deprived of exactly the same choice?
"The problem with DOMA was that it interfered with New York's 'sovereign' choice," the court said. "Alabama 'used its historic and essential authority to define the marital relations' and made a different 'sovereign' choice than New York. If New York was free to make that choice, it would seem inconsistent to say that Alabama is not free to make its own choice, especially given that 'the recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.'"
The problem the argument poses for same-sex marriage advocates is that nearly all orders for states to recognize same-sex marriage have come from federal judges. That's the case in 25 of the 37 states now recognizing same-sex marriage. In most of those states, voters resoundingly rejected it.
Pending before the U.S. Supreme Court is the case from the 6th U.S. Circuit Court of Appeals, which affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman.
The appeals court's opinion said: "Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit."
Two justices on the U.S. Supreme Court already have taken public actions in support of "gay marriage," officiating at ceremonies.
The American Family Association launched a campaign offering a way for citizens to tell their representatives in Congress that the two justices shouldn't rule on the case.
"U.S. Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from any cases involving the homosexual marriage issue on the basis that they have conducted same-sex marriage ceremonies," the campaign letter states.
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