It has been an interesting week in Alabama. A federal
district judge had decided that the state of Alabama was not allowed to keep
the definition of marriage it has always had—that it must change from the
family forming purpose of permanently joining a man and a woman to a
recognition of any two people currently in a sexual relationship. Of course the
judge, Callie Grenade, didn’t word it that way. She referred to the unfairness
of “banning” homosexuals from marriage, even though Alabama law (nor in any
state) prevents homosexuals from marrying the opposite-sex person of their
choice. And certainly over the centuries many have.
The judge had recognized that there would be appeals, and also
that there was a strong possibility some questions would be settled by the US
Supreme Court this term, within the next few months. So she had allowed for a
stay of implementing what she declared to be the new law.
But SCOTUS saw fit to take up this issue, quickly, and rule
7-2 that the stay was not allowed, and Alabama must go ahead and start issuing
marriage licenses to same-sex couples. (More about the reasoning, and the
strong dissent in a moment.)
But Alabama Supreme Court Justice, Roy Moore (the same one
who stood up against SCOTUS by refusing to remove the Ten Commandments from his
courtroom some years back) instructed Alabama officials not to issue the
licenses.[*]
He said,
Effective immediately, no probate judge of the state of
Alabama nor any agent or employee of any Alabama probate judge shall issue or
recognize a marriage license that is inconsistent with Article 1, Section
36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.
There are still cases pending. There is reason to assume a
state does have the ability to define terms in a standard contract such as
marriage. For officials in the state, the question is, do we obey the state
supreme court or the federal circuit judge? Hmm. The people of Alabama elected
Justice Roy Moore, but they did not elect an appointed federal circuit court
judge, nor did they elect any of the SCOTUS justices. Also, federal courts under these circumstances are supposed to be applying current law in a particular case; they are not intended to set precedent.
But officials are torn;
some counties are offering the marriage licenses to same-sex couples, while
some counties are not. Confusion is the key word for the day.
But if there is a good chance the licenses would be declared
null and void just a few months down the road, wouldn’t there be less confusion
by waiting? SCOTUS is causing the confusion.
In Justice Clarence Thomas’s dissent (joined by Justice
Scalia), he refers to patterns of the court in the past, leading to the expectation
that there would be a stay in implementing the change, as Alabama requested. He
listed several cases where SCOTUS had granted such a stay:
When courts declare state laws unconstitutional and enjoin
state officials from enforcing them, our ordinary practice is to suspend those
injunctions from taking effect pending appellate review. See, e.g., Herbert v.
Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War
Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying
an injunction requiring a city to remove its religious memorial).
Recently the Court had chosen not to stay, but those cases
were following the Court’s refusal to take up the cases, last fall. At that
point, while a stay still would have been useful and respectful to the states,
there wasn’t an expectation of a permanent resolution in the near future. Now,
after the circuit courts had disagreement, and the Court decided to take on the
cases, there is an expectation of resolution in the near future, and the stay
would therefore be expected and normal. Yet the Court went against pattern, and
against respect for the State of Alabama, and refused the request for a stay.
Thomas adds,
Today’s decision represents yet another example of this Court’s
increasingly cavalier attitude toward the States…. I would have shown the people
of Alabama the respect they deserve and preserved the status quo while the
Court resolves this important constitutional question.
What is a state to do when the Court inserts itself disrespectfully
in an unresolved issue? Particularly when the issue to be resolved is whether a
state has the right to do what states have always done? One could assume that
the state might do just as Alabama did: ignore the federal edict and assert its
state sovereignty.
There’s a bill in the Texas legislature right now with a
similar purpose. It’s Texas HB 623, “relating to the funding, issuing, and
litigation of certain marriage licenses (preventing officials to grant same-sex
marriage licenses against Texas constitution and law).[†]
Texas, as many other states, strengthened existing defense
of marriage laws by placing the definition of marriage in the state constitution—which
meant that it could not be overturned by federal courts or legislation without
directly challenging the sovereignty of the state. Most of the 37 states (I think that's
the latest count) where same-sex “marriage” licenses are granted, have
had it imposed on them even after the citizens of the states have voted to
protect the traditional definition of marriage.
If the federal government derives “its just Power from the
Consent of the Governed,” as we’re reminded in our Declaration of Independence,
and neither the people nor the people’s representatives have changed the laws,
what do the states, or the people, do when a law change is nevertheless imposed
on them? Stand up. Stay strong. Refuse to give in. Ignore.
Some smaller states might fear to stand up. That’s why it’s important
for a state the size and strength of Texas to stand up. To dare the federal
government to invade the state and force submission. What are the odds that the
US Military would invade Texas and enforce unjust laws?
We’ve had a Civil War before, and the resistors lost. But
the pro-slavery South was out of alignment with the Constitution, which is
based on natural God-given rights to life and liberty. If the resistors are
standing up for state’s rights, religious freedom, and millennia-old beliefs
about the value of family to civilization, will the military engage in a civil
war over that?
We won’t know if we don’t stand up and give it a try.
No, I don’t want any kind of violent reaction. But what I
trust is that, when you’re in the right, when you’re in alignment with the Constitution,
and with God’s law, the good people of America will not violently react to
that. They will say, “Oh, the people of Texas really mean it. Maybe we should
think long and hard about the principles involved here.” And when thoughtful
people think through the principles that lead to freedom, prosperity, and civilization, they choose those outcomes over the alternatives of tyranny, poverty,
and savagery.
[*] A story about this news
contains both Justice Thomas’s dissent and Judge Moore’s declaration: “Confusionin Alabama as State Judge Fights Supreme Court After It Allows Same-Sex
Marriage,” February 9, 2015, TheBlaze.com.
[†] A story on this bill can
be found at "Texas Rep Introduces Bill to Defend Traditional Marriage and StateSovereignty,” January 11, 2015, Breitbart.com.
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