By David Tulis
A high view of federalism as he structure of American government. A high view of marriage as the building block of society. These are two graces that emerge in an opinion from the supreme court of Alabama that upholds states’ rights and defies gay theory as promoted by the U.S. monolith.
The 148-page opinion by the justices of the Alabama court does not include input from the state’s chief justice, Roy Moore, who recused himself from the proceedings as he has been dealing with media and handling the political side of court’s pro-government argument.
The court’s arguments coincide with those of the federal court of appeals in Cincinnati, which says states have the authority to determine marriage law without federal intervention and that marriage is no offense to the 14th amendment due process clause in the federal constitution. They also coincide with the argument of local economy, which says Christianity provides the best analysis of marriage, the blessings of children and family, and the necessity for law to account for the claims of nature upon the human body (gay theory rejects nature in favor of sexual license).
In its mandamus ruling, the court halts probate judges in the state from issuing Jim-Joe marriage licenses. If they continue, they impose “an expansive and overnight revolution in countless areas of caselaw and statutory law” that contemplates the traditional definition of marriage. If not barred, mixed unions in Alabama would have disturbed laws of inheritance and the distribution of estates, the administration of estates, postmarital support, custodial and other parental rights as to children and their adoption.
Flatly contradicting U.S. trial judge
Alabama is rightly not impressed by the expansive meaning given to the term “supremacy” as regards the Washington government. It holds that since state and federal courts are independent, “state courts may interpret the United States Constitution independently from, and even contrary to, federal courts.” Federal district judge Callie Granade has no authority over the Alabama high court. “[I]n determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority,” (quoting Glass v. Birmingham So. R.R., 905 So. 2d 789, 794 (Ala. 2004)). Except for the U.S. supreme court, Yankee court opinions are “persuasive” but not “binding authority.”
The court recounts what has happened:
The United States District Court for the Southern District of Alabama has declared that Alabama’s laws that define marriage as being only between two members of the opposite sex — what has been denominated traditional marriage — violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
The judges defend the state’s marriage regime because to see it overturned by a federal trial judge would create legal chaos. A whole range of state and federal legal rights depend on marriage, and if marriage is overturned, “then those rights and obligations do not apply” that are “basic to the well-being of society” as marriage has a “basic position in society’s hierarchy of values.”
Marriage laws DO NOT discriminate
Marriage is equally available to members of either sex, so Alabama’s marriage law does not discriminate based on sex.
All men and all women are equally entitled to enter the institution of marriage. Only by redefining the term “marriage” to mean something it is not (and in the process assuming an answer as part of the question), can this statement be challenged. Put in the negative, traditional-marriage laws do not discriminate on the basis of gender because all men and all women are equally restricted to marriage between the opposite sexes.
Yes, marriage is a fundamental right, the federal supreme court ruled. But it is referring to marriage in the traditional sense, the Alabama court says. The long-time legal recognition of marriage is recorded in many decisions.
In Griswold, the Court stated that marriage is “a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” 381 U.S. at 486. In Meyer, the Court recognized that “the right of an individual … to marry, establish a home and bring up children” is protected by the Due Process Clause. 262 U.S. at 399.
The justices accuse Judge Granade and the gay lobby of circular reasoning, presuming that marriage necessarily is defined to include gays, then expressing indignation that states “ban” gay marriage. The court finds
what the federal district court has done is to declare an entirely new concept of “marriage” a fundamental right under the guise of the previously understood meaning of that institution. It is, plainly and simply, circular reasoning –- it assumes the conclusion of the matter, i.e., that marriage as newly defined is a fundamental right, in the premise of the question without acknowledging that a change of terms has occurred.
Gay theory is at bottom dishonest, intellectually cheating and acting like a bully. The court says this operation is called “smuggling,” which “implies that an argument is tacitly
importing something that is left hidden or unacknowledged — some undisclosed assumption or premise.” A professor cited in the brief calls such a tactic “illicit” when making an undisclosed premise. “As one federal appeals court judge has noted: ‘To now define the previously recognized fundamental right to ‘marriage’ as a concept that includes the new notion of ‘same-sex marriage’ amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end.’”
The court puts its finger on why LGBTQ theory presses smuggling into service. “Proponents of the new definition of marriage do not want to have to defend the premise behind their change of definition because doing so would necessarily require the introduction of legislation to effect the change rather than a court order. *** [T]he new definition of marriage put forward by proponents of same-sex marriage carries implications that proponents themselves either do not believe or do not want explicitly revealed at this time because they know that a large majority of the populace is not ready to accept those implications.”
Family law on a Christian basis
The Alabama jurists are plain-spoken men, and honest readers of the historical record of humankind. They explain marriage warrants constitutional protection because of “the characteristic that has remained unchanged throughout history: marriage has always been between members of the opposite sex.”
The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children. Marriage demonstrably channels the results of sex between members of the opposite sex — procreation — in a socially advantageous manner. It creates the family, the institution that is almost universally acknowledged to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.
Local economy in favor
The family is the source of government and democratic ideals, the judges aver. “The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society…. [A]s part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family.”)
The decentralized structure of the family is always resisting of top-down tyrannical superstates such as that in the former Soviet Union or the United States today. Though the family lost ground in the 19th and 20th centuries, they will always exhibit a built-in protection of the future as personified in children. “The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of [the] commanding problems ***. In short, government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by State law.” (internal quotes and punctuation omitted)
The high court in Alabama is of like mind with the sixth federal circuit court of appeals, which upheld largely the same position in favor of marriage and federalism. Please pray for a favorable spirit at the marriage hearing before the U.S. supreme court in April. An opinion is expected in June.
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