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

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?"

It takes a court filing to prove what we already know - that same sex marriage is an abomination to God’s Law and that as it having been declared the law of the land that it rejects religious liberties. How can two Supreme Court Judges be allowed to rule on a case when in fact they performed same sex marriages? These two judges Bader-Ginsburg and Kagen should have been recused from the case. IN ACTUALITY THEIR BIAS HAS MADE FORTH THAT THE RULING IS ILLEGAL AND HAS NO STANDING IN ANY JURISDICTION THROUGHOUT THE USA. The queers can go to h e double hockey sticks! If at anytime anyone approaches the church were i am the pastor I will throw the idiots out of the church building, and take off my left shoe and wipe the dust and dirt on it and tell them that the curses that they pronounced on to me go back to them magnified. I am just waiting to see if any queers go to a conservative church and demanded to be married, if the conservative church refuses to do so, the queers will take it to court immediately.

Good. Time to stand up for the 10th amendment and the Constitution.

What really steams me, is that this Administration, and much of Washington DC is totally ignorant of the constitution, and totally lawless when it suits them.

They ignore the laws that the don’t like, refuse to enforce laws that they don’t want to enforce, and make up laws by executive order.

You have liberal areas through out the country ignoring Federal Laws and establishing sanctuary cities, and doing whatever they want to with respect to laws.

Yet somehow or other, states and cities are supposed to follow all the laws the libs want to a t. Why should anyone follow unconstitutional edicts from the Supremes, when legitimate laws are simply ignored?

Lawless defiance of rules that liberals don't agree with is acceptable. Following of millennia of tradition that transcends any particular religion is not acceptable. As much as Christians feel attacked, SCOTUS’ decision (and the decisions of liberals across the country in and out of the courts), attacks essentially any religion.

In every essential way, SCOTUS’ decision has established a new religion in the United States, a state religion with the first ceremony being an ever evolving ritual they incorrectly call marriage. And there is every indication that this new state religion will be forced on students in schools, on churches of other religions, of members of other religions, in every aspect of our daily lives.

That, to me, was the worst part of the awful decision. It wasn't just inventing powers that didn't exist, it wasn't just a decision that wasn't grounded in the constitution, it was doing something which is expressly forbidden by the constitution. There is no separation of church and state, but there is a forbiddance of establishing a state religion.

And of course, the spreading of the punishment against those who fail to follow the rituals of this new state religion is like a wildfire. Businesses are being seized, recognition of property rights denied, and absolutely, open displays of faith which are not in compliance with the state religion are being suppressed.

It is with great sadness that this is not being openly attacked for what it is.

Why do most people believe this was a “Decision” by the supreme court?? IT WASN’T, it was SENT BACK to the 6th district court, specifically for them to “REWRITE” their ruling, based on an appellate decision on an issue. If it were to APPLY to the STATES, the Supreme Court would be REQUIRED TO HEAR the Case in “ORIGINAL JURISDICTION”. THEY DID NOT, And article 3,section 2 is Plain and Clear as to their jurisdiction:

In all cases where a “STATE” is a party to the action, the supreme Court “SHALL” have original jurisdiction.

NO APPELLATE decision can be applied at the state level ANYWHERE. The decision will ultimately come from the inferior district court.

From Judge Moore:
A recent detailed study of the courts of all 50 states and the District of Columbia determined that 46 states and the District of Columbia adopt the position that the precedents of lower federal courts are not binding in their jurisdictions. Wayne A. Logan, A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights, 90 Notre Dame L. Rev. 235, 280-81 (2014). The position of three other states is uncertain. Only one state (Delaware) defers to the constitutional decisions of lower federal courts. Id. At 281.

Federal courts have recognized that state-court review of constitutional questions is independent of the same authority lodged in the lower federal courts. “In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.” United States ex rel.Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970).

Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions. Indeed, such results were contemplated by our federal system, and neither sovereign is required to, nor expected to, yield to the other.

Surrick v. Killion, 449 F. 3d 520, 535 (3rd Cir. 2006).

The United States Supreme Court has acknowledged that state courts “possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law.” Asarco Inc. v. Kadish, 490 U.S. 605, 617 (1989). Two justices of the United States Supreme Court in special writings have elaborated on this principle.

The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.

Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482, n. 3 (1974) (Rehnquist, J., concurring) (noting that a lower- federal-court decision “would not be accorded the stare decisis effect in state court that it would have in a subsequent proceeding within the same federal jurisdiction. Although the state court would not be compelled to follow the federal holding, the opinion might, of course, be viewed as highly persuasive.”).

For the above reasons, I am of the opinion that an Alabama probate judge may deliver his own considered opinion, subject to review, on the issues raised in Searcy and Strawser and is not required to defer to federal district and circuit court rulings on the same questions.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.