51 of 67 judges reject Joe-Jim marriages as desired by U.S. judge

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Families and defenders of marriage rally at the capitol building in Montgomery, Ala., Saturday. (Photo Sanctity of Marriage Alabama on Facebook)

Families and defenders of marriage rally at the capitol building in Montgomery, Ala., Saturday. (Photo Sanctity of Marriage Alabama on Facebook)

Defenders of marriage are glad to hear of probate judges in Alabama declare they will not recognize dude-dude unions as marriage in a Saturday demonstration in Montgmery. (Photo Sanctity of Marriage Alabama on Facebook)

Defenders of marriage are glad to hear of probate judges in Alabama declare they will not recognize dude-dude unions as marriage in a Saturday demonstration in Montgmery. (Photo Sanctity of Marriage Alabama on Facebook)

A public official's oath of office to uphold his state constitutition is sufficient basis for him to refuse to disobey opinions from judges in alien jurisdictions. (Photo Sanctity of Marriage Alabama on Facebook)

A public official’s oath of office to uphold his state constitutition is sufficient basis for him to refuse to disobey opinions from judges in alien jurisdictions. (Photo Sanctity of Marriage Alabama on Facebook)

By David Tulis

Many probate judges in Alabama are caving in to an opinion from a U.S. district court judge that these Alabama judges’s boss, chief justice Roy Moore, says they are to resist.

By the end of the first day of uproar in the former member of the Confederacy, 51 of 67 judges indicated they will not recognize poofter unions as marriage, in light of state law, ABC news said. The conflict in Alabama between state constitution and state law and federal judicial opinions is escalating this week as probate judges across the state are granting marriage licenses to people of the same sex.

Probate judges in urban counties — those surrounding Huntsville, Montgomery, Mobile — are complying with the opinion of U.S. district court judge Callie V.S. Granade. But in dozens of other counties, the judges who issue and record marriage licenses are refusing to marry the likes of Jim Strawser and partner John Humphrey.

Reportedly a majority of the state’s counties, as served by probate judges, are refusing to recognize poofter unions sought by litigation through federal courts. At least eight probate judges have accepted legal representation of Mat Staver of Liberty Council, the public interest law group.

Moore cites constitutional structure

Alabama is resisting federal encroachment upon marriage by making appeal to the constitutional structure of American government which is divided among state and federal authority, with the autonomy of the people and their rights given short shrift by both jurisdictions. Alabama is the more respectful of the constitutional rights of the citizenry, denying U.S. hegemony over marriage, which the U.S. supreme court in the Windsor case overturning DOMA in part (the Defense of Marriage Act) says is a matter of state, not federal, government.

Judge Moore has advised Gov. Robert Bentley that he should defend the state’s offices and its constitutional government. But Mr. Bentley said piously Monday he “will follow the rule of law *** and allow the issue of same-sex marriage to be worked out through the proper legal channels.”

Judge Moore defends a biblical and constitutional definition of marriage, and says the federal judge’s opinion has no power over the state’s probate judge because it is addressed solely to attorney general Luther Strange. In a Feb. 3 memo, Mr. Moore emphasizes the state’s division of power and says the U.S.’s order is upon Mr. Strange and does not bind probate judges in any way. “The federal court in Mobile has no authority to ignore the internal structure of state government. How a state government structures its powers is ‘a decision of the most fundamental sort for a sovereign entity.’” Judges, he rightly says, are bound by constitutions and competent to decide matters independently and “even contrary to the decisions of federal courts.”

“I hear people saying that I need to be on the right side of history,” says probate judge John Enslen of Elmore County. “My reply to that is this: In the end, God is always on the right side of history. It was Sodom and Gomorrah that were on the wrong side of history.

“I think redefinition of the word ‘marriage’ is not found within the powers designated in the federal government,” Judge Moore said. “Do they stop with one man and one man or one woman and one woman? … Or do they go to multiple marriages or marriages between men and their daughters or women and their sons?”

Oaths and perjury fears

In Hamilton County, Tenn., county clerk Bill Knowles is considering his own position vis a vis the prospect of an opinion deconstructing marriage and pretending to overturn marriage in all 50 states. If the U.S. supreme court opines that Joe-Jim marriages are a constitutional right, how will Mr. Knowles act?

The main defense against either a federal district court, a federal court of appeal or the U.S. supreme court is the U.S. and state constitution, the power of the oath of office to uphold said constitutions, and the fear of perjury.

Mr. Knowles as county clerk obtains his authority from TCA chapter 18. Before 1978, his office was that of county court clerk, but is now just “county clerk.” One of his job is to keep an accurate record of marriages (TCA 18-6-109).

To register, in a well-bound book, the names of the parties, and the date of the issuance of a marriage license, and to copy immediately, under or opposite thereto, the return of the proper functionary who solemnized the rites of matrimony, with the date thereof, and file and retain the license and return thereof in such clerk’s office.

The idea of “registering” and “issuance” and “copying” documents pertaining to marriage is, perhaps, a petty one, that of scrivener or law clerk. But they are also vital and pertaining to facts as opposed to opinion or argument. Marriage licenses and recording marriages are substantial bodies of fact and cannot be misrepresented, misrecorded or misreported for any purpose. County clerks have authority to “take affidavits and administer oaths” and “attest the same under the officials seals,”  Their records, their taking the oaths of others, their making at a term’s start oaths to uphold the constitution of Tennessee place them at a high level. So high and so important is their work that they cannot falsify a record without violating their oaths, and committing a positive crime of malfeasance subject to the charge of perjury.

Under state and federal law, “knowledge of the falsity of the statement at the time it is made is an essential element of the crime of perjury.” Tennessee clerks, as they watch with worry the conflict over constitutional government in Alabama, might be wise to review the perjury provisions in state law that in this matter don’t oppress them, but act as a hedge about them and their offices. Intending to honor God and government, clerks should consider that telling the truth avoids perjury, and that the truth of their office is to record lawful marriages under state law, and not ersatz couplings by queer passionistas.

Sources: American Jurisprudence 2d, Tennessee Code Annotated, title 18

Sandhya Somashekhar and Robert Barnes, “Alabama judge stakes out defiant stance against same-sex marriages,” Washington Post, Feb. 9, 2015

Enjoli Francis, “Most Alabama Counties Defy Feds by Blocking Gay Marriage,” ABC News, http://abcnews.go.com/US/alabama-37th-state-sex-marriages/story?id=28836644

Kent Faulk, “Alabama probate judges refusing to issue marriage licenses to same-sex couples could face sanctions,” Birmingham News, Feb. 7, 2015. http://www.al.com/news/birmingham/index.ssf/2015/02/alabama_probate_judges_who_ref.html#incart_related_stories

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