Alabama Supreme Court

Commentary by Susan Brinkmann, OCDS

The state of Alabama may soon become ground zero in the national marriage fight as the Alabama Supreme Court issues an historic ruling that not only restores the ban on same-sex marriage in that state - but also systematically eviscerates the national argument in favor of homosexual unions.

In a press release by the non-profit legal firm, Liberty Counsel, the latest salvo in the fight over whether or not the state’s ban on same-sex marriage is constitutional came from the Alabama Supreme Court which handed down a 7-1 decision this week affirming natural marriage and ordering Alabama’s probate judges to immediately stop issuing illegal marriage licenses to same-sex couples.

This order is a direct challenge to that of U.S. District court Judge Callie Granade who attempted to turn over Alabama’s marriage laws in January, a move that was thwarted by the state’s Chief Justice, Roy Moore, who ordered his judges to refrain from issuing the licenses.

“The ruling by the Alabama Supreme Court is historic, and is one of the most researched and well reasoned opinions on marriage to be issued by any court in the country,” said Mat Staver, Founder and Chairman of Liberty Counsel who is representing the Alabama Policy Institute (API) and the Alabama Citizens Action Program (ALCAP) in the suit.

Staver called the ruling “the most forceful and clearly articulated rebuttal to date of the imaginative arguments for same-sex ‘marriage’ employed by federal courts.”

Even though Judge Granade had no power to extend her ruling to the entire state, some activist probate judges across the state who were not subject to her ruling took it upon themselves to issue marriage licenses to same-sex couples in clear violation of Alabama law. These judges argued that Alabama citizens had no right or interest in preserving natural marriage.

The Supreme Court disagreed, saying: “It could not be clearer that the public — the people of Alabama — have an interest in the respondents’ faithful compliance with Alabama’s marriage laws.” Reinforcing the point, the Court added, “It is beyond question that the duty to issue marriage licenses only in accordance with Alabama law is a duty owed to the public for its benefit. The failure to perform that duty damages the framework of law and institutions the people have chosen for themselves.”

The Court’s ruling forcefully challenges and methodically dismantles the opinion of Judge Granade and other judges who have erroneously held that the U.S. Constitution requires states to redefine marriage:

“[W]hat [Judge Granade] has done is to declare an entirely new concept of ‘marriage’ a fundamental right under the guise of the previously understood meaning of that institution. It is, plainly and simply, circular reasoning—it assumes the conclusion of the matter, i.e., that marriage as newly defined is a fundamental right, in the premise of the question without acknowledging that a change of terms has occurred.”

The ruling also affirmed natural marriage, making several key observations about the historical and societal underpinnings of the marriage institution.

• “[M]arriage, as a union between one man and one woman, is the fundamental unit of society.”

• “[M]arriage has always been between members of the opposite sex. The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially.”

• “[O]ne legitimate interest behind the laws (among others) is recognizing and encouraging the ties between children and their biological parents.”

• “Government is concerned with public effects, not private wishes. The new definition of marriage centers on the private concerns of adults, while the traditional definition focuses on the benefits to society from the special relationship that exists between a man and a woman, i.e., the effects for care of children, the control of passions, the division of wealth in society, and so on.”

• “[I]f love was the sine qua non of marriage, then polygamy also would be constitutionally protected . . . .”

• “[W]hat ultimately is at issue is the entire edifice of family law . . . an edifice that has existed in some form since before the United States was even a country. . . . It is no small thing to wipe away this edifice with a wave of the judicial wand.”

“This decision of the Alabama Supreme Court is very well reasoned, which is quite rare from today’s courts,” Staver concluded. “The decision not only affirms natural marriage but also restores the rule of law.”

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