By David Tulis

In a bid to uphold Alabama’s marriage law and end confusion among probate judges, Alabama’s chief justice and court system administrator, Roy Moore, has ordered marriage to be upheld.

The four-page order Jan. 6 reiterates Alabama’ biblical and historic position on marriage and says that “an elementary principle of federal jurisdiction” is that federal opinions such as its pro-gay Obergefell ruling applies only to those party to it, and are not binding.

In other words. Obergefell applies to Michigan, Kentucky, Ohio and Tennessee, in the sixth circuit of the U.S. court of appeals, but not to Alabama.

In other words, Obergefell is not binding on any state except those party to that litigation, which ended in June 2015 with an opinion that deconstructs marriage and ordains homosexual unions be included in the concept of human marriage.

Judge Moore’s directive is not an opinion on litigation on appeal, but an administrative order to officials in Alabama who issue licenses for state-created marital unions. Probate judges are ordered to certify and recognize marriages between one man and one woman only, in light of the state’s marriage law.

Marriage an ancient truth

Supreme Court and the Alabama Supreme Court for authority. In 1885 the Supreme Court of the United States described marriage as “‘the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.’ Murphy v. Ramsey, 114 U.S. 15, 45. The Alabama Supreme Court similarly stated that ‘[T]he relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness.’ Goodrich v. Goodrich, 44 Ala. 670, 675 (1870).”

Prior to the Yankee court’s Obergefell opinion, the Alabama judicial system had worked to clarify that the people’s marriage protection amendment is indeed law in that state. On March 3 and 12 the Alabama supreme court declared probate judges have a ministerial duty “not to issue any marriage license contrary to [the Sanctity of Marriage Amendment or the Marriage Protection Act]. Nothing in the United States Constitution alters or overrides this duty.”

After Washington published Obergefell v. Hodges on June 29, Alabama’s high court asked for briefs in the active case defending Alabamians’ marriage law, Ex parte State ex rel. Alabama Policy Institute. Probate judges acted in a decidedly mixed fashion to Obergefell. “Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State” (italics added).

Protest against Judge Moore’s ruling was swift. Judge Steven Reed of Montgomery County probate court called the order a charade and that he would reject it. Said Sarah Warbelow, legal director of  Human Rights Campaign, “Roy Moore is obstructing same-sex couples’ access to marriage, which they are constitutionally guaranteed.” Federal attorneys in Mobile said Obergefell is “the law” and that government officials are “free to disagree with” this law “but not to disobey it.”

Limited scope of Obergefell

Alabama relies on what some might term a technical reason for rejecting Obergefell. And that is the limited scope of any opinion of the federal government’s judicial branch. “‘A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.’ Martin v. Wilks, 490 U.S. 755, 762 (1989). ‘[N]o court can make a decree which will bind anyone but a party … no matter how broadly it words its decree.’ Alemite Mfg. Corp. v Staff, 42 F.3d 832, 832 (2d Cir. 1930). See also Rule 65, Fed R. Civ. P., on the scope of an injunction.”

Judge Moore cites federal court rulings since Obergefell suggesting its limited scope. “The United States District Court for the District of Kansas was even more explicit: ‘While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses ….’ Marie v Mosier, 2015 WL 4724389 (D. Kan. August 10, 2015).”

Chief Justice says he doesn’t presume to know how the full Alabama court will rule on pending matters. “Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in [Alabama Policy Institute] and the decision of the United States Supreme Court in Obergefell.”

Interposition

These actions are consistent with the doctrine of the lesser magistrate: That is, a civil authority or magistrate may lawfully and in good faith resist, reject, nullify and freely oppose lawless or evil edicts from afar, whether from those acting within their lawful jurisdiction or not.

Alabama says the federal high court has no subject marriage jurisdiction over marriage, which as recently as Windsor it said is the exclusive provenance of the states. Lacking that jurisdiction, Alabama declares, the U.S. and its branches are helpless to redefine marriage and so oppress and wrong the people.

Sources: Administrative order of the chief justice of the Alabama supreme court

Alan Blinder, “Top Alabama Judge Orders Halt to Same-Sex Marriage License,” New York Times, Jan. 6, 2016