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Ala. Supreme Court Orders Halt to Same-Sex Marriages

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By Mark Wilson, Esq. on March 04, 2015 1:55 PM

Just when you thought it was safe to get a same-sex marriage in Alabama, the Alabama Supreme Court -- and not just Chief Justice Roy Moore -- issued a 148-page opinion yesterday ordering some of the state's probate judges not to issue marriage licenses to same-sex couples.

The petition for a writ of mandamus was brought by the State of Alabama, along with another probate court judge, and asked for "a clear judicial pronouncement that Alabama law prohibits the issuance of marriage licenses to same-sex couples."

Traditional Marriage

That's exactly what the State of Alabama got. The court's reasoning centered on whose law they had to follow, anyway. In a move that harkens back to certain things that happened about 150 years ago or so, the court said that Alabama probate judges are obligated to follow only Alabama law, "except to the extent that that duty may be altered or overridden by the United States Constitution."

The court insisted that Alabama probate judges weren't bound by the decision of the federal district court that decided in January that Alabama's same-sex marriage prohibition violated the federal Constitution. As a result, the Alabama Supreme Court took it upon itself to independently analyze the federal court's decision, sort of sua sponte certifying a question to itself.

Citing to a journal "whose purpose is to advance a religiously informed public philosophy for the ordering of society," the court concludes that "marriage is a 'prepolitical' 'natural institution' 'not created by law.'" (If that were the case, though, then why are we talking about it in a court of law?) By placing marriage in a sacred space outside the boundaries of human law, the court is able to throw up its hands in futility and say, "It was like that when we got here."

Of course, "marriage" is a complex institution that isn't simply the foundation of "the family," as the Alabama Supreme Court claims. It's also the foundation of certain property laws, and for much of human history, it was a property arrangement between the bride and groom's parents; the bride and groom themselves weren't involved in the process. Marrying a person whom you choose is a relatively recent concept, like the idea that children shouldn't be forced to work for adults.

But traditions change. It may surprise the Alabama Supreme Court to learn that poor children are no longer able to work in factories for a pittance. What a restraint on trade! (Thanks, Obama.)

Whose Jurisdiction Is It, Anyway?

So does a federal district court order bind a state? This argument actually has merit. According to Moore's Federal Practice, "A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case." The U.S. Supreme Court affirmed this proposition in a footnote in Camreta v. Greene. (Though the state supreme court then claimed that not even the Eleventh Circuit's interpretation of federal constitutional questions is binding on Alabama. This dodgy conclusion is supported by two concurring -- that is, non-binding -- opinions from two U.S. Supreme Court cases.)

Finally, conducting its own review, the Alabama Supreme Court found that Alabama's "more than rational bases" support the law's validity. And, if you don't buy that, you might buy the argument, imported from the Sixth Circuit's opinion in DeBoer v. Snyder, that clearly the U.S. Supreme Court, in all those marriage decisions, was talking about "traditional marriage"; i.e., the marriage of one man and one woman (notwithstanding, of course, that at least one of those cases dealt with the marriage of one man one woman of different races, which was not cognizable as "marriage" at the time).

Only one justice dissented, emphasizing that the Alabama Supreme Court doesn't have jurisdiction to hear the case, as it should have been heard by an intervening state appellate court.

Still confused? So is everyone else.

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