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Alabama Chief Justice Roy Moore

Alabama Supreme Court Rejects U. S. Supreme Court’s Marriage Opinion

Montgomery, AL – Friday, in a 170-page ruling, the Alabama Supreme Court rejected the U.S. Supreme Court’s marriage opinion by issuing its own Judgement in favor of Liberty Counsel’s Petition for Mandamus. In the petition, Liberty Counsel demanded on behalf of its Alabama clients – Alabama Policy Institute (“API”) and Alabama Citizens Action Program (“ALCAP”) – that the state’s probate judges obey Alabama’s Constitution and laws. On March 4, 2015, the Alabama Supreme Court ordered the probate judges to immediately cease issuing same-sex marriage licenses.

“The ruling last year by the Alabama Supreme Court was historic, and is one of the most researched and well-reasoned opinions on marriage to be issued by any court in the country. Today’s opinion by the Alabama Supreme Court calling the U.S. Supreme Court’s marriage opinion ‘illegitimate’ will be remembered in history like the ‘shot heard around the world,'” said Mat Staver, Founder and Chairman of Liberty Counsel.

Following the June 26, 2015, U.S. Supreme Court’s 5-4 Obergefell opinion on marriage, the Alabama Supreme Court requested the parties to file additional briefs. Today, the Alabama Supreme Court issued its final Judgement, thus affirming and implementing its March 4, 2015 opinion.

“The Alabama Supreme Court has openly rejected the U.S. Supreme Court’s 5-4 marriage opinion, labeling it ‘illegitimate’ and without legal or precedential authority. This is a clear victory for the rule of law and an historic decision by the Alabama Supreme Court. The Judgement makes permanent the Alabama Supreme Court’s order prohibiting probate judges from issuing marriage licenses to same-sex couples. The Alabama Supreme Court has rejected the illegitimate opinion of five lawyers on the U.S. Supreme Court,” said Staver.

Chief Justice Roy Moore and Justice Tom Parker issued concurring opinions openly criticizing the U.S. Supreme Court marriage opinion. Using Supreme Court Chief Justice John Robert’s term of “five lawyers” when referring to the Supreme Court Obergefell opinion, Alabama Chief Justice Roy Moore wrote a blistering 105-page concurring opinion:

  • Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.
  • I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefell is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution.
  • Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefell is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution.
  • The Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act.
  • I submit that our Founders knew a lot more about freedom than [Justice Kennedy’s opinion] indicates. They secured the freedoms we enjoy, not in judicial decrees of newly discovered rights, but in the Constitution and amendments thereto. That a majority of the Court may identify an “injustice” that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment.
  • Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it.
  • Novel departures from the text of the Constitution by the Court are customarily accompanied by pretentious language employed to conceal the illegitimacy of its actions. Justice Scalia in his Obergefell dissent refers to this abandonment of “disciplined legal reasoning” as a descent into “the mystical aphorisms of the fortune cookie.”
  • Some of the ostentatious phrases used in the majority opinion [are] more suitable to a romance novel.
  • The majority seeks to invoke the grief, sorrow, and compassion associated with a Greek tragedy. Riding a tidal wave of emotion, the ensuing tears and pathos then suffice to fertilize a new constitutional right nowhere mentioned in the Constitution itself.
  • Abandoning the role of interpreting the written Constitution, the majority has instead decided to become the supposed “voice” of the people, discerning the people’s sentiments and updating the document accordingly. The function of keeping the Constitution up with the times, however, has not been delegated to the Court — or to Congress or the President; that function is reserved to the states under Article V.
  • Historically, consummation of a marriage always involved an act of sexual intimacy that was dignified in the eyes of the law. An act of sexual intimacy between two men or two women, by contrast, was considered “an infamous crime against nature” and a “disgrace to human nature.” Homosexuals who seek the dignity of marriage must first forsake the sexual habits that disqualify them from admission to that hallowed institution. Surely more dignity attaches to participation in a fundamental institution on the terms it prescribes than to an attempt to wrest its definition to serve inordinate lusts that demean its historic dignity.
  • A “disgrace to human nature” cannot be cured by stripping the institution of holy matrimony of its inherent dignity and redefining it to give social approval to behaviors unsuited to its high station. Sodomy has never been and never will be an act by which a marriage can be consummated.
  • Government exists to secure that right. Because liberty is a gift of God, it must be exercised in conformity with the laws of nature and of nature’s God.
  • Liberty in the American system of government is not the right to define one’s own reality in defiance of the Creator. . . . But the human being, as a dependent creature, is not at liberty to redefine reality; instead, as the Declaration of Independence states, a human being is bound to recognize that the rights to life, liberty, and the pursuit of happiness are endowed by God. Those rights are not subject to a redefinition that rejects the natural order God has created.
  • Citing Genesis 2:24 — The Obergefell majority’s false definition of marriage arises, in great part, from its false definition of liberty. Separating man from his Creator, the majority plunges the human soul into a wasteland of meaninglessness where every man defines his own anarchic reality. In that godless world nothing has meaning or consequence except as the human being desires. Man then becomes the creator of his own reality rather than a subject of the Creator of the Declaration.
  • This false notion of liberty, which permeates the majority opinion in Obergefell, is the ultimate fallacy upon which it rests. In a world with God left out, the moral boundaries of Scripture disappear, and man’s corrupt desires are given full rein. The end of this experiment in anarchic liberty is yet to be seen. The great sufferers will be the children — deprived of either a paternal or a maternal presence — who are raised in unnatural families that contradict the created order.
  • The invocation of “equal dignity” to justify the invention of a heretofore unknown constitutional right is just another judicial mantra to rationalize the invalidation of state laws that offend the policy preferences of a five-person majority.
  • The majority opinion in Obergefell represents the culmination of a change in our form of government from one of three separate-but-equal branches to one in which the judicial branch now exercises the power of the legislative branch.
  • The Obergefell majority, presuming to know better than the people themselves how to order the fundamental domestic institution of society, has usurped the legislative prerogatives of the people contrary to the Ninth and Tenth Amendments.
  • In short, the majority acts not as a court of law but as a band of social revolutionaries. The Chief Justice, amazed at this presumption, exclaims: “Just who do we think we are?”
  • The Chief Justice’s quotation of Justice Curtis’s Dred Scott dissent merits serious consideration. If acquiescence to Obergefell indicates that “we have no longer a Constitution,” then the legitimacy of Obergefell is subject to grave doubt. If five Justices of the Supreme Court may at will redefine the Constitution according to their own policy preferences, the mechanism of judicial review, designed originally to protect the rights of the people from runaway legislatures, has morphed into the right of five lawyers to rule the people without their consent.
  • Indeed, as the Chief Justice warns, the plenary power the majority asserts to redefine the fundamental institutions of society offers no assurance that it will not give birth to yet further attacks on the social order.
  • If, as the Chief Justice asserts, the opinion of the majority is not based on the Constitution, do state judges have any obligation to obey that ruling? Does not their first duty lie to the Constitution?
  • The right to change the form of government in this country belongs to the people themselves through the amendment process, not to judicial oligarchs.
  • These metaphors identify the essence of the majority’s actions: an illegal displacement and usurpation of the democratic process. Chief Justice Roberts accuses the majority of imposing “naked policy preferences” that have “no basis in the Constitution.” Accordingly, the majority’s “extravagant conception of judicial supremacy” is “dangerous for the rule of law.” The unmistakable theme that emerges from these critiques is lawlessness.
  • Justice Scalia also emphasizes the revolutionary character of the majority’s assault on the social order — elevating the “crime against nature” into the equivalent of holy matrimony. This decision, “unabashedly not based on law,” represents a “social upheaval” and a “judicial Putsch.” Justice Alito sounds the same themes. The Court has not unwittingly tread into forbidden territory; instead, it has acted “far beyond the outer reaches” of its authority, boldly trampling the right of the people “to control their own destiny.”
  • For the last 50 years, the Supreme Court has consistently misused the Fourteenth Amendment to destroy state laws that protect the marital relation and its offspring. Obergefell is the latest fruit of this corrupt tree (refer to Matthew 7:17-18).
  • Truly, the less basis the majority has for its innovations upon the Constitution, the grander is the language employed to justify them, as if high-blown rhetoric could compensate for the absence of constitutional substance.
  • Obergefell is but the latest example of the Court’s creation of constitutional rights out of thin air in service of the immorality of the sexual revolution. Like Roe, Obergefell is no more than “an exercise of raw judicial power … an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
  • Amendments to the Constitution are the business of the people pursuant to Article V; they are not the business of the Court under Article III. Truth may not always be clearly seen, but the majority’s reasoning should not blind us to the reality that the Court seems determined to alter this nation’s organic law.
  • The definition of marriage as the union of one man and one woman has existed for millennia and has never been considered an “ill tendency.” By contrast, the Court’s attempt to redefine marriage is “a dangerous fallacy which at once destroys all religious liberty.”
  • The Obergefell majority, conspicuously overlooking the “essential and historic significance” of the connection between religious liberty and “supreme allegiance to the will of God,” failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.
  • Religious liberty, however, is about more than just “teaching” and “advocating” views of marriage. The majority condescendingly approves religious speech against same-sex marriage but not religious practice in conformity with those beliefs. As Chief Justice Roberts states in his dissent: “The First Amendment guarantees … the freedom to ‘exercise’ religion. Ominously, this is not a word the majority uses.”


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