Thursday, February 12, 2015

Confusion among the Courts

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,
[†] A story on this bill can be found at "Texas Rep Introduces Bill to Defend Traditional Marriage and StateSovereignty,” January 11, 2015,

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