A state judge in Alabama
is arguing that since the U.S. Supreme Court – a branch of the federal
government – created “same-sex marriage,” Washington can just go ahead and
administer the licenses.
The arguments come in a
new court filing from Probate Judge John Enslen. In Alabama, probate judges are
the only ones authorized to issue marriage licenses.
WND
reported just days ago that in
Alabama, the state Supreme Court still has pending a case regarding how the
state should implement the U.S. Supreme Court’s marriage ruling.
Prior to the Supreme
Court’s June 26 decision, a federal judge in Alabama had demanded endorsement
of “same-sex marriage,” and the Alabama Supreme Court issued a permanent
injunction forbidding it.
When the Supreme Court’s
ruling was announced, the state Supreme Court said it would accept comments on
how the decision would impact in the state. But the state Supreme Court has not
ruled yet.
Several probate judges
now are asking the state Supreme Court to rule, and in a new
filing with the state court, Enslen suggests the issue can be resolved.
He said he “petitions
this Supreme Court of the state of Alabama to issue a declaratory judgment,
order, and decree holding that the state of Alabama will honor and recognize
same-sex marriage license that are duly issued by the federal government of
these United States, or duly issued by a state government that has adopted the
civil right of same-sex marriage as a matter of that state’s law.”
But, he said, the ruling
should further say “that the state of Alabama will not issue state same-sex
marriage licenses or recognize purported state same-sex marriage license that
have been issued in contradiction to the current Constitution of the state of
Alabama or the current state law of any other sister state.”
He explained that the
federal government created “same-sex marriage” and, therefore, can administer
it.
“A search of the Code of
Federal Regulations reveals that there are 19,169 sections that contain the
word ‘license,’ ‘certification,’ ‘ permit’ or a combination thereof,” he wrote.
“Federal agencies, boards and commissions have been established by the federal government
to regulate the exclusive issuance and administration of a multitude of federal
licenses.”
He said, “The federal
government and its many agencies are accustomed to issuing and administering
licenses that have for their creative basis a grant of authority that is
grounded in the federal constitution or a judicial interpretation thereof.”
He argued that the
proper handling of the Supreme Court’s creation is to have the federal
government deal with it.
“The Obergefell ruling
gave birth to a new, federally created, U.S. Constitution-based, civil right to
same-sex marriage or, as some have referred to it, sodomy-based marriage,” he
said. “But the recognition of a new, federal civil right is an entirely
different matter from the federal government’s authority to compel the state of
Alabama, or any other state, ot issue that particular type of federal-based
marriage license.
“This petition relates
to the proper manner in which to enforce the United States Supreme Court’s
ruling in Obergefell.”
He questioned whether
the federal government could force states to issue other types of licenses,
such as for “those to intend to acquire explosive materials.”
‘Child of the federal
government’
“The new same-sex
marriage license is a child of the federal government, not the state of
Alabama,” he wrote.
WND
reported a day earlier when
dozens of top legal scholars from the likes of Washington & Lee, Boston
College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt,
Hillsdale, University of Nebraska, Catholic University and Regent University
said state and federal officials should treat the Supreme Court’s recent
creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to
have settled the law of the United States,” said the statement by the American
Principles Project.
“We call on all federal
and state officeholders: To refuse to accept Obergefell as binding precedent
for all but the specific plaintiffs in that case. To recognize the authority of
states to define marriage, and the right of federal and state officeholders to
act in accordance with those definitions. To pledge full and mutual legal and
political assistance to anyone who refuses to follow Obergefell for
constitutionally protected reasons. To open forthwith a broad and honest
conversation on the means by which Americans may constitutionally resist and
overturn the judicial usurpations evidence in Obergefell.”
Robert George, founder
of the project and the McCormick Professor of Jurisprudence at Princeton, said:
“We stand with James Madison and Abraham Lincoln in recognizing that the
Constitution is not whatever a majority of Supreme Court justices say it is. We
remind all officeholders in the United States that they are pledged to uphold
the Constitution of the United States, not the will of five members of the Supreme
Court.”
In the marriage case,
the lawyers explain, the five justices who joined to create same-sex marriage,
“by their own admission, can find no warrant for their ruling in the text,
logic, structure or original understanding of the Constitution.”
They noted the four
justices who dissented didn’t simply disagree, they feared severe harm would
result.
For example, Justice
Antonin Scalia called it “a naked judicial claim to legislative … power; a
claim fundamentally at odds with our system of government.”
Justice Samuel Alito
said it is “beyond dispute that the right to same-sex marriage is not among …
rights” rooted in the nation’s history and tradition.
Opponents pose a number
of problems with the Obergefell decision.
For example, two of the
justices in the majority were asked to recuse themselves from the case because
they had openly advocated for same-sex marriage, violating standards to
preserve judicial impartiality.
Reversed
Then there was the U.S.
Supreme Court’s own opinion just two years earlier, in the Defense of Marriage
Act case, in which the court said states have exclusive power over marriage.
And there are those who
point out that the Constitution doesn’t mention marriage but does dictate that
everything not mentioned in the document is left to the states and the people.
Eunie Smith of the Eagle
Forum of Alabama and John Killian Sr., former president of the Alabama Baptist
State Convention contend in a
newly published commentary that the
judicial branch doesn’t have the constitutional power to legislate a right to
“same-sex marriage.”
“Five ‘unelected judges’
– as Chief Justice Roberts called them in his criticism of Obergefell – dealt
an arrogant blow to God, the family, nature, the rule of law, the Constitution
of the United States and the democratic process,” they write. “Simply because
their opinion has been accepted as the ‘law of the land’ by the media and the
left, doesn’t mean that the rest of us have to close our eyes to the truth or
pretend that the Constitution allows the judicial branch to legislate a new
right to same-sex marriage.”
WND
reported after the Obergefell
decision was released that Liberty
Counsel, in a brief on behalf
of several family groups, explained to the Alabama judges there is precedent in
the U.S. for a state Supreme Court to reject a “U.S. Supreme Court mandate
which is unlawful.”
“There is existing
precedent for a state’s highest court to reject an unlawful mandate from the
U.S. Supreme Court,” said Liberty Counsel’s founder and chairman, Mat Staver.
“The hope of our constitutional Republic rests upon state officials and
American citizens who will refuse to allow five, black-robed judges to rob us
of our free, representative form of government.
“A judicial opinion
without constitutional basis is not law and should not be followed by any state
or citizen,” he said.
The brief submitted by
Liberty Counsel to the state court notes that the Wisconsin Supreme Court
refused to follow the U.S. Supreme Court opinion in Dred Scott, which “said
that blacks were not entitled to full protection as citizens.”
‘Not a judgment’
In the Wisconsin case,
the brief explains that even though the U.S. Supreme Court overturned the state
Supreme Court, “in a final act of defiance,” the state court “never filed the
mandates” which required people to return “fugitive slaves” to their owners.
At that time, the
Wisconsin court opined, “I believe most sincerely and solemnly that the last
hope of free, representative and responsible government rests upon the state
sovereignties and fidelity of state officers to their double allegiance, to the
state and federal government; and so believe, I cannot hesitate in performing a
clear, an indispensable duty.”
The court also declared
the federal law unconstitutional.
The Wisconsin court
said, “Here is a distinct recognition of the power and duty of state judges,
not to be bound by all the acts of Congress, or by the judgments and decrees of
the supreme federal court, or by their interpretation of the constitution and
acts of congress, but by ‘this constitution’ ‘and the laws made in pursuance
thereof.’”
Simply put, they found,
a Supreme Court opinion that wasn’t founded in the Constitution was not a
judgment.
Impeachment
As
WND reported, Ruth Ginsburg has
performed same-sex wedding ceremonies and made supportive public statements.
Justice Elena Kagan also has performed same-sex weddings and promoted “gay”
rights at Harvard’s law school while she was at its helm.
Critics contend the two
justice appear to be violating judicial ethics rules that require recusal from
a case in which there is even the appearance of a conflict of interest.
A brief from the Foundation
for Moral Law explained that Canon
3A(6) of the Code of Conduct for United States Judges provides: “A judge should
not make public comment on the merits of a matter pending or impending in any
court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself
in any proceeding in which his impartiality might reasonably be questioned.”
The foundation pointed
out in a submission to the Supreme Court: “Four weeks after this court granted
certiorari in these cases, Justice Ginsburg was asked whether parts of the
country might not accept same-sex marriage being constitutionalized. She
answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in
people’s attitudes on that issue has been enormous … It would not take a large
adjustment.’”
Ginsburg’s interview was
with Bloomberg News on Feb. 12.
The controversy
resurfaced, because even after being told of the appearance of a conflict of
interest, Ginsburg again officiated at a same-sex wedding, as the
New York Times reported.
The paper said that with
“a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg
said that she was pronouncing the two men married by the powers vested in her
by the Constitution of the United States.”
http://www.wnd.com/2015/10/alabama-judge-let-washington-run-marriage/
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