MONTGOMERY, Ala. — More than 81% of Alabama residents voted in 2006 to amend their state Constitution to define marriage as the institution of one man and woman.

But because U.S. district court Judge Callie Granade believes the state Sanctity of Marriage Amendment violates the due-process and equal-protection clauses of the U.S. Constitution’s 14th Amendment, Alabama’s probate judges are under increasing pressure to issue marriage licenses to same-sex couples.

“We certainly see it as another example of the federal judiciary encroaching into matters that have traditionally been within the state’s purview, and there doesn’t seem to be an end in sight,” said Katherine Robertson, vice president of the Alabama Policy Institute, a conservative think tank that advocates in favor of free markets, limited government and strong families.

Robertson and legal analysts told the Register that Granade’s Jan. 23 ruling was a notable example of judicial activism trumping the democratic will of the people.

“This is indeed activism, and it is justified on the grounds that anyone who disagrees with the new wisdom about same-sex relationships is a bigot,” said Robert Destro, a law professor and director of the Interdisciplinary Program in Law and Religion at the Columbus School of Law at The Catholic University of America.

“It is one of the most egregious examples of judicial overreach that we’ve seen in our lifetime, second only to Roe v. Wade,” said John Eastman, a constitutional law scholar and chairman of the board for the National Organization for Marriage.

Eastman and other observers also said that Alabama Chief Justice Roy Moore was “absolutely 100% correct” to issue a memo before Granade’s ruling took effect Feb. 9 that the state’s probate judges were not obligated to issue same-sex “marriage” licenses.

“Interference with the right of state courts to make independent judgments based on their own view of the U.S. Constitution is a violation of state sovereignty,” Moore wrote in a four-page advisory letter to probate judges.

Moore said probate judges who issued same-sex “marriage” licenses would violate state law, since they were not named as defendants in the federal lawsuit filed by two women from Mobile who “married” in California and then sued Alabama to legally recognize their union.

 

Jurisdictional Issue

Critics have hammered Moore — who did not return a message from the Register seeking comment — for allegedly ignoring the U.S. Constitution’s Supremacy Clause, which establishes that the federal constitution and federal law generally take precedence over state laws and state constitutions.

But according to some legal analysts, this is a misinterpretation of Moore’s actions.

“They’re accusing him essentially of doing what some old Southern governors did in the wake of Brown v. Board of Education,” said Eastman, referring to early opposition to the U.S. Supreme Court’s 1954 ruling that declared state laws establishing segregated schools to be unconstitutional.

“That’s not what he is doing. He’s saying, ‘We’re not bound by lower federal-court decisions,’” Eastman said.

“A lower federal court doesn’t have any jurisdiction over a state court when it comes to state law, and that’s what we’re dealing with here,” said Richard Thompson, president and chief counsel of the Thomas More Law Center, a public interest law firm based in Ann Arbor, Mich.

However, more probate judges in Alabama began issuing same-sex “marriage” licenses after Granade — whom President George W. Bush nominated to the federal bench in 2001 — ruled on Feb. 12 that a probate judge in Mobile County had no legal right to refuse to issue marriage licenses to same-sex couples. The same-sex couples and their attorneys had filed a new lawsuit against the judge.

In her Feb. 12 decision, Granade restated her Jan. 23 ruling that said the Alabama amendment’s ban on same-sex “marriage” is unconstitutional. After her earlier ruling, Granade placed a two-week hold to allow Alabama Attorney General Luther Strange time to file an appeal and a request for a stay with the 11th Circuit, which denied Strange’s application for a stay on Feb. 3.

That same day, Strange filed an emergency appeal to the U.S. Supreme Court to stay Granade’s order while he appealed her decision at the 11th Circuit. However, the Supreme Court, in a 7-2 ruling, denied the stay request on Feb. 9, the day that Granade’s ruling took effect.

 

Supreme Court Tipping Its Hand?

The Supreme Court’s decision to allow same-sex “marriage” to proceed in Alabama continues a recent trend of the high court turning away state requests to prevent those “marriages” from taking place while appeals are pending. The Supreme Court’s recent posture is leading several legal analysts to believe the high court will rule this year that same-sex couples have a constitutional right to “marry.”

“If they plan to eventually uphold state marriage amendments, then they wouldn’t have let gay marriage go forward in Alabama,” Robertson said. “I don’t think you can read it any other way than this as a foreshadowing of what’s coming later this year.”

In January, the U.S. Supreme Court announced it would take up the marriage issue by hearing arguments on four cases that challenge the Sixth Circuit Court’s decision to uphold same-sex “marriage” bans in Kentucky, Michigan, Ohio and Tennessee. The court will decide whether a state can define marriage as a union of one man and one woman and whether it is a violation of the 14th Amendment for a state to refuse to recognize a same-sex “marriage” solemnized in another state. The high court is expected to hear arguments in April and issue a ruling by late June.

In a dissent to the Feb. 9 ruling that denied Alabama’s stay request, U.S. Supreme Court Justice Clarence Thomas, joined by Justice Antonin Scalia, criticized his fellow justices for their “cavalier attitude” in looking “the other way as yet another federal district judge casts aside state laws.” Thomas wrote it was “not the proper way” for the high court to carry out its role under the Constitution.

Thomas also warned, “This acquiescence may well be seen as a signal of the court’s intended resolution of that question.”

Destro said the Feb. 9 decision does not necessarily mean the Supreme Court will rule same-sex “marriage” to be the law of the land, as the high court did in its 1973 ruling in Roe v. Wade that legalized abortion. However, Destro noted that same-sex “marriage” advocates are seeking to influence the high court’s thinking by changing the “facts on the ground” in states where same-sex couples are already receiving marriage licenses.

“By permitting the issuance of licenses, you then have ‘married’ same-sex couples and create a situation where it seems unequal to have some authorized and others not. Believe me, that’s the next argument, and it will be directed at Justice [Anthony] Kennedy,” Destro said, referring to Kennedy’s recognized role as a swing vote in many 5-4 Supreme Court rulings.

 

Justice Moore Makes His Case

In a Feb. 15 interview with Fox News Sunday, Moore, the Alabama chief justice, defended his position and said he would defy a Supreme Court ruling that legalized same-sex “marriage” because it would contradict God’s design for marriage. He also referenced the high court’s 19th-century decisions in the Dred Scott (1857) and Plessy v. Ferguson (1896) cases that respectively upheld slavery and segregation laws.

“Twenty-one states have bowed down to federal-court orders when they didn’t have to,” Moore said, referring to states where same-sex “marriage” has gone into effect after federal-court rulings.

Granade’s decision made Alabama the 37th state where same-sex couples can “marry.” Since the Supreme Court’s 2013 ruling in U.S. v. Windsor — which struck down a part of the federal Defense of Marriage Act — the number of states allowing same-sex “marriage” has tripled because of federal judicial rulings.

“The notion that the 14th Amendment makes it illegal to have man-woman-only marriage laws is preposterous, but a slew of judges have reached that conclusion and ignored the will of millions of Americans who have voted to ratify their understanding of marriage,” Eastman said.

Until the federal courts got involved, 37 states refused to recognize same-sex “marriage,” Destro said.

Destro added, “By striking down the Defense of Marriage Act on federalism grounds, the court left open the issue of whether denial of a marriage license to a same-sex couple is a violation of equal protection, but its reasoning in that case was taken by activist local federal judges as a clear signal to force the states to legalize those relationships.”

 

Undemocratic Approach

The result has been federal judges such as Granade nullifying constitutional amendments passed by significant majorities of voters. Thompson, of the Thomas More Law Center, said the situation echoes Thomas Jefferson’s warnings about an unelected oligarchy undermining the constitutional republic.

Said Thompson, “Once you start overturning the vote of the people, then we no longer have consent of the governed.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.