The Gay Marriage Legal Battle Just Entered Uncharted Territory in Alabama

By Nate Madden | March 10, 2016 | 4:42 PM EST

Minoo Vafai holds a rainbow flag outside the Alabama supreme court building in Montgomery. (AP Photo/Albert Cesare)

Last week the Alabama Supreme Court threw the ongoing struggle to defend traditional marriage and the Tenth Amendment into largely uncharted waters.

In a case titled “Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen,” the highest court in the Yellowhammer State effectively rejected the Supreme Court’s June ruling on same-sex marriage in “Obergefell v. Hodges.”

According to a press release from Liberty Counsel, a Florida-based nonprofit:

“Today, in a 170-page ruling, the Alabama Supreme Court rejected the U.S. Supreme Court’s marriage opinion by issuing its own Judgment in favor of Liberty Counsel’s Petition for Mandamus. In the petition, Liberty Counsel demanded on behalf of its Alabama clients – Alabama Policy Institute (‘API’) and Alabama Citizens Action Program (‘ALCAP’) – that the state’s probate judges obey Alabama’s Constitution and laws. On March 4, 2015, the Alabama Supreme Court ordered the probate judges to immediately cease issuing same-sex marriage licenses.

“‘The ruling last year by the Alabama Supreme Court was historic, and is one of the most researched and well-reasoned opinions on marriage to be issued by any court in the country. Today’s opinion by the Alabama Supreme Court calling the U.S. Supreme Court’s marriage opinion “illegitimate’ will be remembered in history like the ‘shot heard around the world,”’ said Mat Staver, Founder and Chairman of Liberty Counsel.”

On March 4, 2015, the Alabama Supreme court ordered the state’s probate judges to immediately stop issuing same-sex marriage licenses, per Alabama’s Sanctity of Marriage Amendment and the Alabama Marriage Protection Act, holding that both are constitutional. Following the June 28 Obergefell v. Hodges ruling, the Alabama Supreme Court requested the parties file additional documents for the case, and issued its ruling last week. Chief Justice Roy Moore wrote the opinion of the court, which states:

  • Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.
  • I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefell is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution.
  • Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefell is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution.

This is because the last time the United States saw something like this was in the years following the pro-slavery Dred Scott v. Sanford decision in which several state and circuit courts issued rulings that were in direct contradiction to that of the Supreme Court of the United States.

You can read the full 170-page order here, but essentially, the highest court in the state has ruled that Alabama’s laws hold on the grounds that the Supreme Court’s ruling only applies to the parties of the case. Now the Alabama order applies to all probate judges in the state, and judges could be held in contempt of Supreme Court order, according to a telephone interview with Staver.

Many will wonder how a federal ruling could not apply to all states in the union. After all, this has been the commonly-accepted practice for similar rulings of this magnitude, especially ones involving the 14th Amendment incorporation. This is where it gets really fuzzy. What happens now still “remains to be seen,” according to Staver. This is because the last time the United States saw something like this was in the years following the pro-slavery Dred Scott v. Sanford decision in which several state and circuit courts issued rulings that were in direct contradiction to that of the Supreme Court of the United States.

*Note: While placing the negative effects that same-sex marriage has on children on the same tier with the gross corruption of human rights that is slavery on a moral hierarchy would be intellectually dishonest at best, the legal reasoning in question warrants study, regardless.

According to Encyclopedia Britannica:

 “‘The Southern opinion upon the subject of Southern slavery,’ trumpeted one Georgia newspaper, ‘is now the supreme law of the land,’ and opposition to it is ‘morally treason against the Government.’ The view that Southern ideologues such as John C. Calhoun had promoted for more than a decade — that the federal government had a positive, indeed a constitutional, obligation to defend slavery — had apparently triumphed.

“Not surprisingly, the North exploded in denunciations of Taney’s opinion. Several sober appraisals in the Northern press decimated the chief justice’s tortured legal reasoning. The Republican editor Horace Greeley published Justice Curtis’s dissent as a pamphlet to be used in the elections of 1858 and 1860. The press and pulpit echoed with attacks on the decision that were as heated as Southern defenses of it. Taney’s hopes of settling the issue lay smashed; if anything, Scott v. Sandford inflamed passions and brought the Union even closer to dissolving.

“For all practical purposes, Northern courts and politicians rejected Scott v. Sandford as binding. In an advisory opinion, Maine’s high court declared that African Americans could vote in both state and federal elections. The Ohio Supreme Court ruled that any slave coming into the state with his master’s consent, even as a sojourner, became free and could not be reenslaved upon returning to a slave state; the New York Court of Appeals handed down a similar ruling in Lemmon v. The People (1860). In several states, legislatures resolved to prohibit slavery in any form from crossing onto their soil and enacted legislation freeing slaves passing within their borders.”

While the futures of the rights enumerated in the First, Fifth and Fourteenth Amendments is still up in the air regarding the ongoing and avaricious demands of the sexual revolutions, it would seem that the fate of the Tenth Amendment might not yet be completely sealed on this issue.

Most notable is possibly the legal battle following Ableman v. Booth, one of a series of cases out of Wisconsin at the time, which essentially declared the Fugitive Slave Law of 1850 unconstitutional and later refused to file the mandate issued by the Supreme Court. According to the case brief:

“[U]nwilling to accept the logic of Chief Justice Taney who had written the infamous Dred Scott case, the Wisconsin Legislature passed a series of resolutions denouncing the actions of the U.S. Supreme Court as “an arbitrary act of power ... without authority, void and of no force,” and urging “positive defiance” by the states as the ‘rightful remedy.’

“Only a month after the U.S. Supreme Court issued its opinion in the Booth matter, Byron Paine was elected to succeed Smith on the Wisconsin Supreme Court. That election was seen as a referendum on the state’s rights position that Paine advocated in his representation of Booth and an approval by the state electorate of the idea that the state could and should nullify and defy a law of the United States — even one which the federal courts had pronounced constitutional and valid — provided such law was thought by the courts of the state to be unconstitutional.

“Coincidentally, only a short time after that election, on April 12, 1859, Chief Justice Whiton died. Governor Alexander William Randall appointed Luther S. Dixon, 34, to fill the vacancy. Thus, Byron Paine, who was then only 32, and Dixon took seats upon the Wisconsin Supreme Court on the same day.

“The two new Wisconsin Supreme Court justices, along with Justice Orsamus Cole, were soon confronted with a request to file the U.S. Supreme Court’s mandates reversing the judgments and dismissals in the Booth cases. Paine recused himself because he had been Booth’s lawyer. Thus, the issue of determining whether the U.S. Supreme Court’s mandates in the Booth case should be filed in this state fell to Dixon and Cole.

“Cole, reaffirming his earlier view that the federal court had no power to review the judgments of the state Supreme Court, voted not to file the mandates in the Booth cases. That meant that the mandates would not be filed no matter how Dixon voted because even if Dixon thought the mandates should be filed, there would be an equal division of the two justices participating and consequently, no action could be taken.”

However, since these rulings and motions came out following Dred Scott in 1857, the Civil War and Reconstruction Amendments effectively removed the need for the courts to hash out the jurisprudence over how far such orders actually extend following contradictory rulings from the States.  So the next step for Alabama remains to be seen.

The fight over marriage has undeniably spilled over into several other different, yet interconnected, legal battles over religious freedom, free speech, freedom of association and, in this case, America’s very understanding of federalism itself. While the futures of the rights enumerated in the First, Fifth and Fourteenth Amendments is still up in the air regarding the ongoing and avaricious demands of the sexual revolutions, it would seem that the fate of the Tenth Amendment might not yet be completely sealed on this issue.

Alabama is not alone in this judicial effort. According to a report Friday, a federal judge in Puerto Rico has recently issued a similar ruling, claiming that the Obergefell decision does not apply in the U.S. Territory, either.

"One might be tempted to assume that the constant reference made to the 'States' in Obergefell includes the Commonwealth of Puerto Rico," reads U.S. District Court Judge Juan Pérez-Giménez's 10-page decision. "Yet, it is not the role of this court to venture into such an interpretation."

Nate Madden is a Staff Writer for Conservative Review, focusing on religion and culture. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate has previously written for World Magazine, The Washington Times, Catholic News Service, Patheos, Ethika Politika, and The Christian Post. Follow him @NateMadden_IV.

Editor's Note: This piece was originally published by Conservative Review.