Marriage Alabama Style

The Alabama Supreme Court issued a special ruling earlier this week, ordering probate judges around the state to stop issuing same-sex marriage licenses, according to a Mobile, AL news source at http://www.wsfa.com/story/28254303/al-supreme-court-orders-halt-to-same-sex-marriage-licenses. When the United States District Court for the Southern District of Alabama issued an order that Alabama’s marriage laws defining marriage as between one man and one woman were a violation of federal constitutional protections, they were essentially ordering the expansion of marriage in Alabama to include same-sex couples.  The Supreme Court of Alabama was not pleased to see federal usurpation of their state law, which came about by a vote of the people of Alabama, on a matter so important to state policy as marriage law.  The Court went into action.


Issuing a fascinating opinion on state domestic relations regulations of marriage which can be found at  https://acis.alabama.gov/displaydocs.cfm?no=642402&event=4AN12324A, the high court of the state  directed court clerks in Alabama not to issue marriage licenses for same-sex marriages in spite of the federal district court’s orders.  Particularly in the wake of the lack of response from the state’s Attorney General in defense of the state, the court expressed that it cannot enforce a federal law that violates Alabama state law, particularly under an area of law reserved by federal law to the states. The court discusses the lack of constitutional jurisprudence in the wave of federal rulings overthrowing state marriage law, and the problem of federal overreach.  Of particular note is an important reference (at footnote 38 of the opinion) citing Professor Craig Stern's scholarship in an article called "Things Not Nice," published by the Regent University Law Review which can be read at  http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v8/8RegentULRev1.pdf, suggesting that federal jurisprudence can happen when a thing is "not nice" according to popular opinion, and can become law by judicial fiat, rather than by a clear and accurate application of the law of the United States Constitution.  Stern writes,


“A friend of mine – law professor, counsel to a United States Senate judiciary subcommittee, later to become judge, and then federal government attorney – once tagged the contemporary mainstream of constitutional jurisprudence as "The Not-Nice School of Constitutional Law." He meant that the Constitution is taken simply to prohibit any state or federal action that is not nice. Whatever the text may actually provide, this school transforms it into an engine of political wish-fulfillment. What we don't like in government, the Constitution outlaws.”


Marriage Alabama style, however, respects state domestic regulation authority, and asserts that constitutional authority ought not be dictated by political concerns.  Learn more about why this authority is so critical to family strength at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.  Family restoration depends in large part on clear family law, which is being usurped by federal judicial fiat of marriage definitions.  Alabama has drawn a line in that sand in its decision to hold that state power regulates family law.  Marriage Alabama style respects constitutional principles, state regulatory duties, and the democratic process.

1 comment:

  1. Professor Craig Stern's article "Things Not Nice" can be downloaded at SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2574828.