Not over? Alabama Supreme Court should reject marriage decision, legal group says

by Michael Foust |

(REUTERS/Lucy Nicholson)Groom Fu Zheng wears a silver bow tie at a group wedding for seven same-sex couples from China, in West Hollywood, California, United States, June 9, 2015. The gay couples were selected as winners of a contest hosted by internet giant Alibaba. China decriminalized homosexuality in 1997, but does not recognize same-sex marriages.

ORLANDO, Fla. (Christian Examiner) -- A prominent legal organization has filed a 36-page brief urging the Alabama Supreme Court to reject the U.S. Supreme Court's same-sex marriage decision, saying the ruling was an "assault" on the rule of law and natural law and that it defied the very words in the Declaration of Independence.

Further, the new brief says, there is major precedent in the nation's history for a state court to ignore a U.S. Supreme Court decision when it is "unlawful."

The brief was filed by Liberty Counsel, which is headed by an attorney – Mat Staver – who has argued cases before the U.S. Supreme Court.

"There is existing precedent for a state's highest court to reject an unlawful mandate from the U.S. Supreme Court," said Staver, founder and chairman of Liberty Counsel.

"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."

After the U.S. Supreme Court issued its ruling in Obergefell v. Hodges, the Alabama Supreme Court invited parties in a state-level same-sex marriage case "to submit any motions or briefs addressing the effect of the Supreme Court's decision in Obergefell on this Court's existing orders." Liberty Counsel's brief was in response to that invitation. Roy Moore serves as chief justice of the Alabama Supreme Court.

"In determining the effect of the U.S. Supreme Court's Obergefell decision on this Court's prior orders, this Court should consider several important factors," the brief reads. "These include the decision's substantial assault on the Rule of Law, Democracy, and Natural Law, and its necessary diminishment of the constitutional right to Free Exercise of Religion. Furthermore, this Court should consider existing precedent for a state's highest court to reject an unlawful mandate from the U.S. Supreme Court."

The Liberty Counsel brief pointed to a pre-Civil War Wisconsin case in which that state's Supreme Court rejected the authority of federal fugitive slave slaves, which were intended to ensure the return of runaway slaves. The U.S. Supreme Court eventually ruled against Wisconsin, but the Wisconsin Supreme Court remained defiant and never recognized the decision. To this day, the case is celebrated on the Wisconsin state court system website.

The brief quotes former Wisconsin Supreme Court Justice Abram D. Smith, who argued state officials had "duty" to resist federal powers that were "not expressly granted or necessarily implied in the federal constitution."

State officials are bound not simply by the federal constitution but by their respective state constitution, Liberty Counsel said.

Smith "recognized that state judges are duty bound to resist unconstitutional federal usurpations of authority by their solemn oaths to their states," the brief said, implying that by not rejecting the same-sex marriage decision, state officials would be violating their oath.

"Justice Smith reasoned [that] resistance to overreaching federal power both flows from and is felicitous to a solemn oath to uphold the U.S. Constitution, not contrary to it," the brief read. "Even more, Justice Smith concluded, such resistance is a necessary preservative of state sovereignty."

Marriage cannot be redefined by the U.S. Supreme Court because the court did not define it in the first place, the Liberty Counsel brief said. Quoting the Declaration of Independence, the brief said the court's high court legal arguments "contravene 'the Laws of Nature and of Nature's God.'"

"This conjugal view of marriage (as a comprehensive and complementary union of a man and a woman that naturally creates families) was (and is), in fact, 'natural and just' for it mirrored (and continues to mirror to this day) the intrinsic nature of marriage regardless of the five lawyers' newly-laid foundation for this universal institution," the brief read.

The brief quoted heavily from the four dissenting justices in the same-sex marriage case, including from Chief Justice John Roberts.

"This Court is not a legislature," Roberts wrote. ". . . Under the Constitution, judges have power to say what the law is, not what it should be. ... The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. . . . Just who do we think we are?"

Read Liberty Counsel's entire brief here.