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Posted on 03/03/2015 5:47:51 PM PST by GIdget2004
Weeks after a United States District Court Judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state.
The order, called a writ of mandamus, had been requested by the Alabama Policy Institute and the Alabama Citizens Action Program last month.
"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the order said. "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."
Alabama Supreme Court Chief Justice Roy Moore has been a vocal opponent of same-sex marriage in the media in the last month. However, he is not listed among the concurring or dissenting judges and appears to have recused himself from the case.
(Excerpt) Read more at al.com ...
FYI, copying you on my reply to Usagi_yo’s reply...
Well the Constitution is the Law of the Land (Art VI, Sec 2, Supremacy Clause) whether you see it as a contract or not, with or without the 17th Amendment. The 17th Amendment does not overturn the Supremacy Clause.
The Constitution is the only legal bulwark of freedom against the tyranny of limited federal government power.
If the Constitution doesn’t delegate the power to the feds by a good-faith reading of the text and original understanding and intent of the ratifiers, then it is not a legitimate federal power. Most federal activity these days is unconstitutional.
The Constitution along with America, was handed over to the American People. As oft quoted, Benjamin Franklin coming out of the constitutional convention famously responded to a question, “Well, Doctor, what have we got, a republic or a monarchy?” with the response, “A republic, if you can keep it.”
This is the very heart of the issue. It is not too complex, but something we must learn, keep, and guard with “our Lives, our Fortunes and our sacred Honor.”
The problem with that statement which Kennedy is quoted as saying and law schools commonly teach is it is missing a very important phrase. It should read
“Whenever state law conflicts with constitutional federal law, federal law wins. Whenever state law conflicts with unconstitutional federal law, state law wins.”
The Supremacy Clause of the Constitution reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land" Article VI, Sect 2 of U.S. Constitution.
If a federal law, act, decision, or regulation is not made IN PURSUANCE of the Constitution, it is NOT the law of the land but is invalid. and should be repealed at the federal level or nullified and rejected at the state level, including unconstitutional federal meddling in marriage.
It’s just a point that needs more refining. I tend away from a contract because contract separates the the parties and actually creates a Federation on superior footing to the States.
As a treaty, the states and the federal government are inextricable, and the Senate was the tie point.
Looks like a good article. The simple truth is the Supremacy Clause only supports federal laws “made in pursuance” of the Constitution. Unconstitutional federal laws are NOT the law of the land and states have every constitutional right to nullify such, as confirmed by the Ninth and Tenth Amendments.
Either way, whether treaty or contract is not dispositive to the invalidity of unconstitutional federal law. The clincher is the fact the Constitution was ratified by the states making it, according to the Supremacy Clause, the law of the land.
Having said that, it is an interesting concept. I have thought “treaty” makes more sense in that there is an agreement that, if the feds break the agreement, the states may do likewise. Sort of like a contract in that sense though I guess.
Good stuff my FRiend.
But we do not need to reach that point to understand the Alabama case.
THERE IS NO FEDERAL LAW AT ISSUE. Congress has not passed a marriage statute pertaining to the claims of homosexuals, either signed by a President or overruling a Presidential veto.
There's no Federal law for Alabama to defy.
What there is is an opinion emitted by an inferior Federal court regarding a part of the Federal constitution and Alabama's marriage statutes. That opinion is not "the law". It's not even A law.
And unless the Federal constitution is amended in a way that creates law ("After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited"), there's nothing for a Federal court to have jurisdiction over.
Well, courts rulings and opinions interpreting law do become practiced law, kind of like the common law. Court rulings and opinions, if done right help “flesh out” the law, again like common law. Interpreting the Constitution correctly by a good-faith attempt to read the text as originally understood and intended is what SCOTUS should do and the results should and do become part of how law is interpreted.
The issue here is federal courts whether inferior or Supreme Court, have no federal question to rule on because marriage is not within constitutional federal power.
I hate to say it, but I think that’s exactly what’s happening...
The problem is that the what the Constitution say has too often become what libs want it to say.
That's where state nullification comes in. Where there is a genuine controversy about a federal law being constitutional, the state must make a good-faith effort to read the text in the original understanding and intent.
Here with marriage, it should not be a close call. The state could nullify pending a possible attempt to have the feds reconsider the act and repeal it themselves.
At this point the most important thing is to get state involved in this valid, constitutional process.
The material below is from a related thread concerning judges wrongly ignoring, imo, 10th Amendment-protected state power to prohibit constitutionally unprotected gay marriage in case anybody missed it.
——————
A major concern with these 10th Amendment-ignoring federal judges overturning state bans on gay marriage is the following. What points are the state’s attorneys arguing to protect their respective state laws prohibiting gay marriage? It seems like these attorneys don’t know the Constitution and its history well enough to defend such laws.
Or are state attorneys possibly working in cahoots with activist justices in an Alinsky-type deception to trick the states to accept gay marriage?
As mentioned in related threads, pro-gay activist judges are evidently relying on PC interpretations of 14A’s Equal Protection’s Clause (EPC) to strike down bona-fide state laws prohibiting constitutionally unprotected gay marriage. And if such is the case then these thug judges are wrongly ignoring that the Supreme Court has historically decided at least two relevant cases in the states’ favors, the justices deciding these cases properly rejecting naïve interpretations of the EPC. This is evidenced by the following references.
Note that Minor v. Happersett (Minor) contains an important key for understanding the EPC. More specifically, regardless that pro-gay activist judges are wrongly interpolating the so-called right to gay marriage from the EPC, the Minor justices had clarified that 14A does not add any new rights to the Constitution. That amendment only strengthens rights which the states have expressly amended the Constitution to protect.
“3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had [emphasis added].” —Minor v. Happersett, 1874.
In fact, the Court’s clarification of the EPC in Minor reflects the official clarification of 14A of John Bingham in the congressional record, Bingham the main author of Section 1 of 14A where the EPC is found.
“Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of the United States as guaranteed by the amended Constitution and expressly enumerated in the Constitution [emphasis added].” — Congressional Globe, House of Representatives, 42nd Congress, 1st Session. (See lower half of third column.)
So in Minor, since the states had never amended the Constitution to expressly protect voting rights on the basis of gender, EPC didn’t automatically establish such rights when 14A was ratified as activist judges seem to be arguing concerning the so-called “right” to gay marriage versus state prohibitions on gay marriage.
And just as Minor showed that the states were constitutionally free to make voting laws which discriminated on the basis of sex regardless of the EPC (this right later protected by the 19th Amendment), Pace v. Alabama (Pace) showed that the states are likewise free to make marriage laws which discriminate on the basis of other constitutionally unprotected “rights” regardless of EPC.
Here’s a commentary concerning Pace.
FR: Chief Alabama judge would defy Supreme Court in gay marriage ruling
Also, note that regardless that the corrupt media evidently wants everbody to think that the Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional, Section 2 of DOMA is evidently still in effect.
DOMA Section 2. Powers reserved to the statesNo State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 2 is appropriately based on Congress’s constitutional authority, under Full Faith and Credit Clause (4.1), to regulate the effect of one states records in the other states, Section 2 clarifying that the states are not obligated to respect gay marriages by other states.
But regarding Section 2, also consider that the corrupt Court is now seemingly doing a complete turnaround with respect to wrongly ignoring 10th Amendment protected state power to prohibit gay marriage.
And what state might refuse to submit to an unjust Fed. ruling?
Well, it's more specifically refusing to submit to an unconstitutional ruling. (There are laws that could be found constitutional that some may consider unjust, but the standard for federal law is the Constitution.)
The issue almost certainly will be money - federal funding. It's basically a dependency issue. We're back where we were 250 years ago - the issue of breaking free from dependency on an oppressive, unjust government. States that have the guts to stand up to the feds also need the guts to go it alone financially. That is not such a bad thing necessarily. If that state understood the need for small government, low taxes, and the value of the free market economy, it could soon be more financially sound than the bankrupt federal government.
Arizona has already passed a law allowing the state to reject unconstitutional federal acts. But just like it was way back when, it comes down to money and politics versus principle and freedom. Where's the band of freedom lovers who are willing to risk "life, fortune, and sacred honor" for freedom? Ultimately, again like at our beginnings, it will be God's miracle to raise up such a band and make it happen.
It would be toughest for states with no ocean harbors, but it seems the way the gov. has worked then succession would be at a severe $ cost, but is it even constitutional?
Yes, there would be a lot of hand-wring because of loss of federal dollars, but I don’t think the colonies were at any less risk. Why did the new country thrive? Freedom, and specifically, the free market economy which is freedom is action (remarkably, Adam Smith’s “Wealth of Nations” was published in 1776). If tiny little resource-poor Hong Kong could become a financial powerhouse, any state could do it, even if no ocean harbors.
Is state nullification constitutional?
Well, below is part of an argument for it’s constitutionality and below that is a link with further discussion about how state nullification of unconstitutional federal acts was contemplated at the time of our founding.
The Supremacy Clause: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...” (Art VI Clause 2 (partial)).
Any federal law NOT made in pursuance of the Constitution is NOT the law of the land. The Supremacy Clause does not validate nor ratify unconstitutional federal acts.
The Ninth and Tenth Amendments confirm the underlying presumption of the Constitution as also expressed in the Declaration of Independence: power and right begins and resides in the states and the people. All federal power is enumerated and delegated by the states and the people via the Constitution. If the Constitution has not delegated an enumerated power to the feds or prohibited the power from the states, that power remains in the states and the people.
State nullification of unconstitutional federal acts is not forbidden by the Supremacy Clause and is supported by the Constitutional presumption of state and individual power as confirmed by the Ninth and Tenth Amendments.
The Constitution as written and originally intended and understood, is the centerpiece of the rule of law in the U.S. and the standard by which federal acts are deemed valid or invalid. Many think personal moral or political viewpoint is a valid basis for federal power. But there is only one basis of federal power: the Constitution as written and interpreted based on a good faith effort to find the understanding of original intent. ALSO, state nullification of federal law based on anything OTHER than the Constitution violates the Supremacy Clause and is invalid.
http://www.renewamerica.com/columns/dunkin/150302
But SCOTUS is not the last word if their decisions ignore or violate the Constitution, which is the law of the land. It’s when you and I accept tyranny and acquiesce to the rule of man and not the Constitution as the law of the land that America as a free nation disappears. It’s up to the people and the states to fight for our God-given and constitutionally protected freedom.
I agree but its almost impossible to guard something where those who are entrusted with the power to enforce it don’t even follow it and just make crap up based on their personal political feelings. I really am skeptical that our Constitutional Republican can survive and if it does the new form it takes may not be worth having.
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