Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses.  And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  In a March 2015 opinion  in  this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API,  the court, without Justice Moore and over a dissent by Justice Shaw held  that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment.  A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.


First, he provides a "statement of nonrecusal."  He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."  

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it.  He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third,  Chief Justice Moore's opinion is the major, if not majority opinion. 

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes.  It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order.   He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."  

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil."  They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

 [footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point.  But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

Could this part of the saga be concluded?


Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink


Full disclosure, I am a friend of Chief Justice Moore and he credits me and my endorsement and media blitz in 2012 with his victory. I served as an an Alabama Circuit Judge for 18 years. I also was harassed and persecuted by the Alabama Judicial Inquiry Commission because of my support for Judge Moore and my personal political views. They are a corrupt body, highly political, which uses its power to go after its enemies and help its friends. I finally retired last year rather than continue to fight them.
Marbury v. Madison was the most famous case establishing judicial review, not “Judicial Supremacy”. There were cases before Marbury and Marbury wasn’t cited for nearly 70 years. Using outright dishonesty, which would have result in our disbarment. From Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed . 60 (1803):
“Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” (my emphases)
5 U.S. 133, 178

Bad cases make bad law. The infamous Little Rock school desegregations case culminated in the Opinion of Cooper v. Aaron, 358 U.S. 1 (1958) where the Supreme Court claimed that Marbury had established the doctrine of “Judicial Supremacy”.
From Cooper v. Aaron:
“What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 133, that ‘It is emphatically the province and duty of the judicial department to say what the law is.’
This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” (my emphasis).
Cooper v. Aaron, 358 U.S. 1, 18
Notice there are no quotation marks around the underlined portion? That is because it is from Joseph Story. How easily are people fooled or allow the public to be fooled.? The statement that the decisions are respected? Just like Lincoln respected Dred Scott? Just like most of the Senators and House members from the South, not to mention the White population, respected Brown v. Board of Education. How about the respect give to Roe v. Wade, Bush v. Gore, or Citizens United. None of the cases were respected generally/ The Senators and House members issued the “Southern Manifesto” calling the Brown case an “illegal power grab by the Supreme Court”. But, the Cooper v. Aaron case was the ultimate power grab in 1958.
From Story’s Commentaries on he Constitution of the United States:

§ 386. We find the power to construe the constitution expressly confided to the judicial department, without any limitation or qualification, as to its conclusiveness. Who, then, is at liberty, by general implications, not from the terms of the instrument, but from mere theory, and assumed reservations of sovereign right, to insert such a limitation or qualification? We find, that to produce uniformity of interpretation, and to preserve the constitution, as a perpetual bond of union, a supreme arbiter or authority of construing is, if not absolutely indispensable, at least, of the highest possible practical utility and importance.
Commentaries on the Constitution of the United States (1833)
Chapter IV Interpreter 359; Story, Joseph, Boston, Hilliard, Gray, and Company; Cambridge [Mass.] Brown, Shattuck, and Co
Re-read Marbury, you will not find anything remotely similar to what Story claims and what SCOTUS asserted in Cooper v. Aaron
I won’t even comment on the absurdity of using the 14th Amendment to “incorporate” the Bill of Rights against the States, then stretching that to include the “right” of same sex couples to marry. The 14th Amendment didn’t even allow former male slaves the right to vote, then fr federal courts to stretch that to include “rights” for gay couples, transgender person, etc.
With all due respect, I recently retired after being elected four times to the circuit court bench and law professors (whom I often debate on gun rights) are, like the media, totally out of touch with mainstream America.

Posted by: Judge Rusty Johnston | Jun 3, 2016 12:23:17 AM

Of course Alabama federal judge Callie V. S. Granade would disagree, and did:
As do many others.

Posted by: Ruthann Robson | Jun 4, 2016 10:00:45 AM

Rusty -- not sure which mainstream America you're living in, but in this one, marriage equality polls something like 55%-35%. Not surprising this might look different in Alabama -- y'all didn't manage to take your miscegenation prohibitions off the books until 2000 -- but most of the country is comfortable with the court taking on an active role to prevent states from screwing members of marginalized groups.

Posted by: Nate Treadwell | Jun 4, 2016 12:21:03 PM

Webmaster: You may see two partial submissions, as after I would write a few lines those lines would disappear. I finally decided to just draft this in Word and try to paste it in at one time.

Where is the rational argument supported by facts, legal and or historic citations? All that I see is biased personal opinions.

Many disagree with Judge Granade also. But first to my contention that Cooper v, Aaron was an unconstitutional power grab, resulting in Judicial Supremacy, inconsistent with 150 years of law and the legal spirit of this country. Professor Lee J. Strang writes in the Essay, “State Court Judges Are Not Bound by Non originalist Supreme Court Interpretations” referring to “Cooper v. Aaron”:

“To reach this literally unprecedented conclusion, the Court articulated a
syllogism that equated its interpretations of the Constitution with the
Constitution itself.20

This conventional view offers little-to-no space for federalism to
operate in the context of state courts. Indeed, that’s the conventional view’s
whole point. One of the Cooper Court’s goals was to eliminate state officer
interpretative independence.

The Cooper Court was famously short on justification for its
momentous assertion.21 As with many other instances where the Warren
Court made bold claims with, at best, modest argumentative support,
scholars since Cooper have offered different justifications to support
Cooper’s conclusion.22”
Strang, Lee J. "State Court Judges are Not Bound by Non Originalist Supreme Court Interpretations." FIU Law Review 11 (2016): 327. 330.

Further, Professor Strang points out something often overlooked by lawyer and totally overlooked by the public, the difference between SCOTUS Opinions and SCOTUS Orders. Orders, of course are binding only on the parties before the Court, while Opinions may serve as strong precedent for the next similar case which comes before a court.

I am also friends with Judge Grenade, but she is a liberal judicial activist who assisted and guided the Searcy case in a way that I have seen few judges do. I disagree with the inflated opinion of her power as a U.S. District Court Judge covering one third of the state.

When I practiced law, I was involved in a case filed in the Southern District in which we sought to preserve the status and physical security of all ballots in all 67 Alabama Counties. We moved that a Defendant class be named consisting of the sheriff, probate judge, and circuit clerk (the election board) or their designee if on the ballot. Judge Alex T. Howard could not be convinced and ordered us to personally serve all of the defendants, just over 200 people. We did that in a little over three days at a cost of well over $10,000. But all of the defendants were before the Court.

For 90% of the Searcy case, there was one probate judge as the defendant and the attorney general, who had nothing to do with issuing marriage licenses. Motions were continually made by plaintiff’s counsel to hold the 66 other probate judges, who were not parties to the lawsuit, in contempt for failure to do this or that. Finally, near the end of the case, Judge Grenade, suggested in an order, that the plaintiffs should file a motion to certify a defendant class which was done, after the trial, thus they had no input as to anything. All that this case succeeded in doing is having one-third of the probate judges stop selling marriage licenses to anyone.

Before Obergerefell, Plaintiffs’ counsel and Judge Granade seemed to think every official in the State of Alabama was bound to follow the edicts of Judge Granade. I commend for your review and excellent article in the Vanderbilt Law Review which supports my position.
Frost, Amanda. "Inferiority complex: should state courts follow lower federal court precedent on the meaning of federal law?." Vanderbilt Law Review 68.53 (2015).

Frankly, “Nate” your comment adds nothing to the discussion, is insulting to Alabama and also to me: “Rusty -- not sure which mainstream America you're living in, but in this one, marriage equality polls something like 55%-35%. Not surprising this might look different in Alabama -- y'all didn't manage to take your miscegenation prohibitions off the books until 2000 -- but most of the country is comfortable with the court taking on an active role to prevent states from screwing members of marginalized groups.” Will you be comfortable if SCOTUS
begins protecting the most marginalized group in America-supporters of the Confederate Battle Flag? I suspect not.
You are attempting to mislead people into believing that Alabama enforced the Alabama Constitutional provisions banning marriages between different racial groups, which the State ended soon after Loving v. Virginia. In order to remove a constitutional provision, it must be put on a statewide referendum. Provisions declared unconstitutional are put up occasionally. Since they are not being enforced and buried in the Constitution, most people don’t see a need to spend money to do this so delicate flowers won’t see it and be offended, since there was a note which stated it had been held to be unconstitutional.

Out of the Constitutional Law classrooms, there is an increasing debate over what to do about SCOTUS and their un-checked powers and unchallenged Judicial Supremacy. The total reshaping of society, is power they never had and were never supposed to have.
Roosevelt III, Kermit. "Judicial Supremacy, Judicial Activism: Cooper v. Aaron and Parents Involved." . Louis ULJ 52 (2007): 1191.

A progressive has to be honest and admit that they are not satisfied with 9 un-elected judges deciding just about every major issue, rather than the branches most democratically elected. If so, you must still be happy about Bush v. Gore, Burwell v. Hobby Lobby, and Citizens United v. FEC. Because if the right (of which I am not a member) gets a couple of new members of the SCOTUS, you will regret the power that they have acquired.

The scheme envisioned by the Framers of checks and balances has not functioned since the 17th Amendment when the State legislatures were taken out, as the fourth check on the power of the other three branches,

Posted by: Judge Rusty Johnston | Jun 26, 2016 9:41:23 PM

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