By Brian Lyman
The Alabama Supreme Court on Friday dismissed motions and petitions in a lawsuit seeking to ban same-sex marriage in Alabama.
But in an unusual move, the justices filed 170 pages of opinion on the dismissal, much of it taken up with heated and angry critiques of the U.S. Supreme Court's decision in Obergefell v. Hodges last June, which struck down existing bans on same-sex marriage in the states.
"Obergefell conclusively demonstrates that the rule of law is dead," Associate Justice Tom Parker, an outspoken social conservative.
The Alabama Policy Institute (API) and the Alabama Citizens Action Program (ALCAP), later joined by Elmore County Probate Judge John Enslen -- sued to block the issuance of same-sex marriage last spring after a federal judge overturned the state's 1998 law and 2006 constitutional amendment banning same-sex marriage. The Alabama Supreme Court halted same-sex marriage licenses in March of last year but asked for new briefs in the case after the Obergefell ruling. The plaintiffs had asked the court to affirm their March ruling.
"We're disappointed," said Eric Johnston, an attorney for the plaintiffs. "What I had hoped was this court would affirm its decision, which would have required further review by the U.S. Supreme Court. They did not do that."
Most Alabama probate judges began issuing same-sex marriage licenses after Obergefell. Alabama Chief Justice Roy Moore tried to stop the practice in January, but most continued to do so, citing the U.S. Supreme Court decision.
The decision featured several unusual characteristics. Moore, who recused himself from the cases after ordering probate judges not to issue marriage licenses to same-sex couples last February, rejoined it and wrote a concurrence that was mostly a scathing attack on Obergefell, with subheads like "The Military Analogy: The Duty to Disregard Illegal Orders" and "The Fallacy of Judicial Supremacy." Moore called the decision "the corrupt descendant of the Court's lawless sexual-freedom opinions."
The Chief Justice, repeating arguments he has made in the past, maintained Alabama's 1998 law and 2006 constitutional amendment banning same-sex marriage remained in effect, despite the high court's ruling and the Alabama Supreme Court's decision.
"The Court's (Obergefell) opinion speaks repeatedly of homosexuals being humiliated, demeaned, and being denied 'equal dignity' by a state's refusal to issue them marriage licenses," Moore wrote. "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."
Moore also argued that the Obergefell decision only affected the plaintiffs who brought it, justifying the argument in part with quotes from Abraham Lincoln.
"Unless, as Lincoln taught, the 'evil effect' of Obergefell is limited to the parties in that case, the people 'have ceased to be their own rulers,' having surrendered their government into the hands of a majority on the United States Supreme Court," Moore wrote.
Groups supporting LGBT rights criticized Moore's opinion. In a statement, Richard Cohen, president of the Southern Poverty Law Center in Montgomery, renewed SPLC's calls for Moore to step down.
"The people of Alabama deserve a chief justice who understands the rule of law, who understands that he is not above the law, and who understands the proper role of state and federal courts," the statement said.
Associate Justice Greg Shaw, who wrote last year API and ALCAP did not have standing in their case, strongly criticized Moore's interpretation of the relationship between federal and state courts, and wrote that the idea that Obergefell was limited to the plaintiffs was "silly." In a footnote, Shaw wrote that Lincoln was not "a lower court judge."
"Further, I would be hesitant to cite President Lincoln as an authority for the idea that the states can rebel against the federal government," he wrote.
Other justices critiqued the Obergefell ruling. Associate Justice Mike Bolin wrote that the Obergefell ruling could "emasculate" the marriage license system in the state while suggesting same-sex marriage could be "re-evaluated and re-examined in the future."
Associate Justice Glenn Murdock argued the U.S. Supreme Court tried to change the fundamental meaning of marriage in its ruling.
"Marriage is what it is," he wrote. "No less so than any naturally occurring element on the periodic table."
Shaw, who wrote that he was "no apologist" for the U.S. Supreme Court, said the federal courts take precedence.
"Is it seriously to be suggested that a decision by the Supreme Court of Alabama issued on its own volition can override the decision in a federal court action where the parties are under the jurisdiction of the federal court?" he wrote.
Moore rejoined the opinions by saying that the Obergefell decision introduced a "new issue" that allowed him to write on the case, and cited an earlier ruling from Shaw in the matter. But Shaw wrote that he had to "take the unusual step of disassociating my prior words from his current position," writing that Moore's orders on probate judges created the situation that led to the API/ALCAP lawsuit and that judges should heed "the appearance of impropriety."
(c)2016 the Montgomery Advertiser (Montgomery, Ala.)