The Alabama Supreme Court has ordered a halt to same-sex marriage licenses in the state, posing a direct challenge to a federal court in Mobile that overturned the state’s marriage laws.
The Alabama court, in a March 3 decision, stated:
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman. 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.”
This fact, the court stated, “does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.”
The court issued its opinion as one body, called “per curiam,” rather than identifying the judges who drafted the 148-page ruling regarding probate judges who are the state officials responsible for issuing marriage licenses. The religious liberty firm Liberty Counsel, which filed a lawsuit on behalf of state moral concerns organizations – Alabama Citizens Action Program (ALCAP), the Alabama Policy Institute and a county probate judge – said it was a 7-1 ruling by the nine-member court, with one recusal.
Alabama Court House
Chief Justice Roy S. Moore “had the integrity to recuse himself” from the case, Liberty Counsel chairman Mat Staver noted in an email to Baptist Press, because Moore had issued an earlier administrative order to Alabama’s probate judges and had spoken publicly about the standoff with the federal court.
Rick Lance, executive director of the Alabama Baptist State Board of Missions, and Travis Coleman Jr., president of the Alabama Baptist State Convention and senior minister of First Baptist Church in Prattville, issued a joint statement March 4, noting:
“We affirm all those who seek to restore biblical marriage to its rightful place of sole authenticity and legality in Alabama and elsewhere. In light of Tuesday’s ruling from the Alabama Supreme Court, we reaffirm appreciation for our ministry partner, ALCAP, and its strong stand for biblical marriage.
“We continue to pray for local, state and federal officials – in all three branches of government – who will make decisions in the months to come about this issue. We continue to pray that any actions and rulings will affirm biblical marriage as the only legally sanctioned form.”
Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, noted in a statement to Baptist Press, “The Alabama Supreme Court argument is right about what marriage is, and why the state has an interest in marriage in the first place.
“The concern over the last several weeks in Alabama is the result of the United States Supreme Court’s inexplicable decision to refuse to speak to the situation there. The U.S. Supreme Court should reaffirm what they have already ruled: that states have the right to define marriage as the conjugal union of a husband and wife.”
Upheaval over Alabama’s marriage law began Jan. 23 when federal district court Judge Callie V.S. Granade in Mobile struck down the 2006 Sanctity of Marriage Amendment to the state constitution and a 1998 legislative Alabama Marriage Protection Act. Granade ruled that a local probate judge was causing a “substantial threat” of “irreparable injury” to four same-sex couples by not granting them marriage licenses.
The U.S. Supreme Court, on Feb. 9, with Associate Justices Clarence Thomas and Antonin Scalia dissenting, denied Alabama’s request to delay enforcement of Granade’s ruling until the high court rules on the same-sex marriage issue this summer.
Granade, on Feb. 12, then ordered the probate judge, Don Davis in Mobile County, to begin issuing marriage licenses to the couples. The homosexual couples at issue in the case, Granade stated, were concerned about being denied the ability to make medical decisions for one another and being denied parental rights.
If the couples “take all steps that are required” to obtain a marriage license, Granade ruled, Davis may not deny them a license because they are of the same sex or “because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage.”
Alabama Chief Justice Moore had countered Granade’s ruling in media comments, saying, for example, on Fox News Sunday that Granade’s ruling is only “law of the case before her” and not an action “overturning the Alabama constitution.”
“Federal law is not made by judges,” Moore said on the Feb. 15 telecast. “That’s something very basic. … Those interpretations are not law. If they were, then the legislature would have no role. Legislatures are to make law. Congress is to make law. The United States … Constitution is law. So is [the] Alabama Constitution. We have a fundamental misunderstanding in our country that federal courts by their mere utterance make law. They do not, sir. They make law of the case, applicable to the parties before them.”
Applauding the state Supreme Court’s March 3 ruling, the Alabama Policy Institute stated in an email news release, “The ongoing confusion caused by the federal court’s action in January needed to be clarified in a formal opinion by the State’s highest court,” The Alabama Baptist reported.
The decision “gives the people of Alabama the respect that they deserve by preserving our law until the U.S. Supreme Court resolves the issue. The sanctity of marriage – an institute that has always been reserved for the states – is a cause worth fighting for, for as long as the States still have their rightful say in the matter,” the organization said.
Staver, of the Orlando-based Liberty Counsel, said the Alabama Supreme Court’s 148-page decision is “one of the most researched and well reasoned opinions on marriage to be issued by any court in the country.” A Liberty Counsel news release described it as “the most forceful and clearly articulated rebuttal to date of the imaginative arguments for same-sex ‘marriage’ employed by federal courts.”
The court’s decision, which examines an array of court cases and government actions involving marriage, noted that one characteristic of marriage “has remained unchanged throughout history: marriage has always been between members of the opposite sex.”
“The obvious reason for this immutable characteristic is nature,” the court stated. “Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children. Marriage demonstrably channels the results of sex between members of the opposite sex – procreation – in a socially advantageous manner. It creates the family, the institution that is almost universally acknowledged to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.”
The court’s ruling can be accessed at acis.alabama.gov/displaydocs.cfm?no=642402&event=4AN12324A.
(EDITOR’S NOTE – Art Toalston is editor of Baptist Press, the news service of the Southern Baptist Convention.)