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SCOTUS Rolls against Alabama Tide on Marriage


By Tony Perkins

It may be the Supreme Court of the United States, but it isn’t a united one. At least two justices are disgusted by the Court’s activism on marriage — and they aren’t afraid to show it. Hours before the Supreme Court opened the floodgates to same-sex “marriage” in Alabama, Justices Clarence Thomas and Antonin Scalia took aim at their colleagues in a blistering criticism of the majority’s decision. Instead of defending the will of the people, Thomas blasted the Court for “(looking) the other way as yet another federal district judge casts aside state laws.”

This is “another example of this court’s increasingly cavalier attitude toward the states,” Thomas fumed. “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way for the court to carry out its role,” he said, echoing the concerns of so many Americans, “and it is indecorous for this court to pretend that it is.” All the Court has done, Thomas laments, is create more chaos and confusion. “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important question.”

Fortunately for Justice Thomas and anyone else who respects the rule of law, the Supreme Court certainly has an uphill climb imposing its will on Alabama. As of yesterday, only nine of Alabama’s 67 counties were issuing same-sex “wedding” licenses in the strong show of support for the state’s constitution that Judge Moore called for. “A lot of states in this union have caved to such unlawful authority, and this is not one,” Moore told CNN. “This is Alabama. We don’t give up the recognition that law has bounds. It’s my duty to speak up when I see the jurisdiction of our courts being intruded by unlawful federal authority.”

While liberals scoffed at Moore’s ability to sway the courts, most probate judges listened — shuttering license windows across Alabama in the most aggressive pushback to judicial activism Americans have seen since the courts began picking off state marriage amendments. By record numbers, other probates dropped out of their wedding obligations altogether. If there are consequences, Washington County Probate Judge Nick Williams said, so be it. “I’m not worried about following the U.S. Constitution.” In a refreshing change, Alabama is using the law to determine their actions — not the radical opinions of politically-motivated judges.

This explosion of resistance is also important for another reason: it exposes the Left’s agenda as purely court-driven. In Alabama, probate judges are elected, so obviously, their biggest priority is reflecting the law that was passed by voters. If Americans were truly on board with this effort to redefine marriage, governors, state attorneys general, and other elected officials wouldn’t bother fighting it. Instead, these probates are showing where the people really are on the issue — and it isn’t where the media would have you believe.

Senator Jeff Sessions (R), who represents the new ground zero on marriage, referenced on this in his strong words for the court. “I think it’s an unhealthy trend that judges feel that they’re somehow reflecting popular opinion when first of all, it’s not popular opinion, and secondly, who are they to be ruling on cases based on how they feel,” he told Roll Call. “The attorney general of the state of Alabama has appealed, which I support. And while a number of courts have held the way (the) Alabama court has, others have not, and to me this line of cases … represents an activist judiciary,” Sessions said. “No Congress has ever passed a law or a constitutional amendment that would ever have been thought to have this result. So, I think the proper role of the federal courts is to follow the law as it is — not as they wish it to be.”

Tony Perkins is president of the Washington, D.C.-based Family Research Council. He is a former member of the Louisiana legislature where he served for eight years, and he is recognized as a legislative pioneer for authoring measures like the nation’s first Covenant Marriage law.

(Via FRC’s Washington Update. Tony Perkins’ Washington Update is written with the aid of FRC senior writers.)

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