Saturday, March 05, 2016

Alabama Supreme Court Narrowly Avoids Confrontation With SCOTUS On Same-Sex Marriage

The Alabama Supreme Court yesterday in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 4, 2016), issued a per curiam order dismissing all pending motions and petitions in a suit that sought to require Alabama probate judges to refuse to issue marriage licenses to same-sex couples.  However the Order also generated six separate opinions from the 9 justices spanning 170 pages. Three of the opinions were particularly defiant of the U.S. Supreme Court's authority to hand down its Obergefell decision.

Chief Justice Roy Moore who has been in the lead in resisting same-sex marriage in Alabama (see prior posting) wrote the longest and most defiant opinion.  He actually submitted two opinions totaling 106 pages-- one an opinion on why he now decided not to recuse himself, even though he had done so at earlier stages of the case, and the second longer opinion attacking the U.S. Supreme Court's same-sex marriage decision. Explaining why he was willing to concur in the dismissal of the suit, Moore said:
Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.
In perhaps his most radical attack, Moore said (at pp. 87-88):
The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. Labeling such opinions as "the rule of law" confuses the law itself -- the Constitution -- with an opinion that purports to interpret that document.
Article VI, by its plain terms, binds "the judges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document.
Moore also emphasized religious liberty in his attack on the Obergefell majority, saying in part (at pg. 58):
The Obergefell majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.
Justices Parker and Murdock also wrote defiant concurring opinions, while Justice Shaw's concurring opinion was highly critical of Chief Justice Moore's approach.

Justice Bolin's somewhat temperate concurrence is of particular interest. He said in part:
Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion....
The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively. reports at length on the decision.