The Alabama Supreme Court upheld an earlier decision banning state officials from issuing marriage licenses to same-sex couples last week, and while the legal road is far from over for traditional marriage supporters, they believe the facts of the case and the Constitution are on their side.
The fight stems from early 2015, when Alabama justices ruled early in 2015 that probate judges should not obey federal court orders striking down the state’s laws defining marriage as the union of one man and one woman.
After the U.S. Supreme Court ruled in June 2015 that the Constitution contains the right to same-sex marriage, offices of probate judges began issuing licenses again. That policy was challenged by Liberty Counsel, leading to the most recent ruling on March 3.
“They put their stamp of approval on what they had previously done. The net result is they are reaffirming that marriage in Alabama is the union of a man and a woman and that the probate judges are barred from issuing marriage licences to same-sex couples. That is the net result and that is a huge victory,” said Liberty Counsel Chairman Mathew Staver.
But it’s not the end of the fight. Staver believes the actions of probate judges on marriage licenses will thrust the issue back into the courts one way or another.
“One option is that the probate judges will not issue the same-sex marriage licenses. They might be sued to try to get them to comply to issue the license,” said Staver. “On the other hand, there are other probate judges who are issuing the licenses. they might be sued because they are in contempt of the Alabama Supreme Court opinion.”
Staver elaborated on the latter issue and why refusing the Alabama Supreme Court decision could mean big trouble for probate judges in the state.
“They are governed by the Alabama Supreme Court, in particular the chief justice as the chief administrative officer of the judiciary. And they have to abide by what the supreme court says. If they do not, they can be found in contempt of court. They can even be removed from office,” said Staver.
But does the Alabama Supreme Court have a chance of winning this fight in the long term given the U.S. Supreme Court’s decision last year? Staver believes it can.
First, he says the flimsy rationale for the U.S. Supreme Court’s decision in Obergefell v. Hodges is critical.
“The Supreme Court’s 5-4 opinion is just that. It’s an opinion and it doesn’t represent the rule of law. It’s illegitimate. It’s not founded in the Constitution or in any of the court’s precedents. And it is simply contrary to millennia of human history,” said Staver.
But he also argues Obergefell only applies to a few states since the court ruled on a case coming from the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.
“It doesn’t apply to Alabama even if in fact it was the rule of law because it only applies to the parties in that particular case. None of the people in Alabama, none of the probate judges were parties of that U.S. Supreme Court decision,” said Staver.
Does this mean U.S. Supreme Court decisions do not have to be followed if opponents believe there is no constitutional basis for the decision? Will there be an endless ping pong of cases between the state and federal systems when states decide to defy a court ruling?
Staver says the precedent is still for U.S. Supreme Court decisions to be followed but there are exceptions and we see them in history, including the infamous 1857 Dred Scott decision, in which the high court upheld the Fugitive Slave Act, denying equal rights for black citizens.
“That case came out of Wisconsin. When it went back to Wisconsin, the Wisconsin Supreme Court said, ‘We’re not going to abide by that. We refuse to implement that rule.’ They continued to insist they would not follow the U.S. Supreme Court,” said Staver.
“To this day, they pride themselves that they were on the right side of the Constitution,” he added.
Staver says presidents have ignored Supreme Court decisions too.
“Thomas Jefferson, Abraham Lincoln (and) Andrew Jackson resisted unlawful, illegitimate legal actions. In the case of Abraham Lincoln, he famously advocated that the Dred Scott decision was illegitimate and did not represent the rule of law,” said Staver.
He says the bottom line is no branch of the federal government is all-powerful, including the Supreme Court.
“The Supreme Court has gotten way beyond its original authority, way beyond the Constitution. It doesn’t have unlimited power any more than the president or the Congress. It has certain prescribed powers,” said Staver.
“When they walk outside of those powers, outside of that authority, they are on their own. We cannot and should not, because to do so is literally unconstitutional. It’s lawless and it undermines the very republic that we love,” said Staver.
He says an overreaching, activist judiciary is one of the greatest threats facing the United States.
“What we have right now is a cancer, a cancer that will eat up the republic, a cancer that will undermine our freedom, a cancer that replaces ‘We the People’ with five individuals who are unelected at the Supreme Court,” said Staver. “We need to excise out the cancer. The judiciary, starting with the U.S. Supreme Court, has become the cancer of our basic liberties. We need to bring it back into check.”
