State's High Court Resists Federal Judicial Frolic

You don't need Law In the Catacombs to update you on the Alabama showdown over jurisdiction and homosexual marriage. That news is in all the major media, albeit slanted in favor of the homosexuals and their confederates on the federal bench. One notable exception is WORLD magazine, which has done a superb job (below) of explaining this rapidly developing story in Alabama and elsewhere in the states.

Before I address the controversy, I would like to point out something that you may have missed: Alabama Chief Justice Roy Moore, who launched this story when he ordered his state's probate judges not to issue marriage licenses to same-sex couples despite a federal district judge's order that they do so, recused himself from the Alabama Supreme Court proceedings that led to today's order.

Go ahead and look "recuse" up, whether in a generic dictionary or a specialized legal dictionary. And when you find it, please make a photocopy for President Obama's appointees on the U.S. Supreme Court.

Section 455(b)(3) of Title 28 of the U.S. Code states that judges must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”

Justice Elena Kagan, whom emails establish was deeply involved in Obamacare strategy sessions while she was solicitor general (perfectly proper, by the way) should have recused herself from the Supreme Court's deliberations and vote on Obamacare after she joined the court. It was, in fact, mandatory under Section 455(b)(3). That she didn't can only be described as lawlessness.

Hats off to Alabama Chief Justice Roy Moore who holds passionate views on the subject matter of this legal controversy but felt ethically obligated to recuse himself from participation as an impartial jurist.

Now to the controversy at hand: federal district judges are not viceroys. Constitutionally, their courts are established and can be abolished by Congress. Have you heard anything out of the Federal District Court for the Panama Canal Zone lately? Congress can limit or remove their jurisdiction (and should seriously consider doing so, to restrain the recent judicial frolics that imposed Sodomite marriage despite direct legislation to the contrary).

So it is not heedless of the Rule of Law for state courts to dispute federal district judges' authority to impose their extralegal social experiments on unwilling sovereign states. It is perfectly reasonable and, in my view, long overdue.

Neither does the Alabama order defy the U.S. Supreme Court, which had an opportunity to decide the Alabama homosexual marriage issue but declined to take it up. Its members can hardly complain now when the state courts adjudicate it. It (the U.S. Supreme Court) can't delegate its authority to a frisky federal district judge in Montgomery, and there's no indication that it tried to do so.

Enjoy this WORLD article, a rose among the thorns.

Alabama Supreme Court: Stop issuing same-sex marriage licenses

MARRIAGE

By THE EDITORS

Posted March 3, 2015, 08:45 p.m.

The Alabama Supreme Court is taking on the federal judiciary, ordering the state’s probate judges to stop issuing marriage licenses to same-sex couples.

In January, a federal judge struck down the state constitutional amendment approved by voters in 2006 that defines marriage as between one man and one woman. The U.S. Supreme Court declined to issue an emergency stay of that ruling, allowing same-sex marriage to begin on Feb. 9.

But Alabama Chief Court Justice Roy Moore ordered the state’s probate judges not to follow the federal court order, declaring it did not have the authority to overturn a state law. Most judges followed Moore’s order until another federal judge said they didn't have to.

Amid the confusion, the Alabama Policy Institute and the Alabama Citizens Action Program asked the state’s Supreme Court to step in. In tonight’s ruling, from which Moore recused himself, the justices said the U.S. Constitution couldn’t alter the judges’ duty to administer state law. It also accused the federal court, based in Mobile, of using “sleight of hand” to legalize same-sex marriage against voters’ wishes.

The confrontation in Alabama will end up at the U.S. Supreme Court, where the nation’s top justices already are scheduled to hear another set of same-sex marriage cases later this year. So far the 6th U.S. Circuit Court of Appeals is the only federal court to uphold state marriage laws, although several cases are moving through other appeals districts that might also end up siding with the states.

The state of marriage

Until 2003, same-sex marriage was illegal in all 50 states. But a lot has changed in the last decade. After the U.S. Supreme Court overturned a portion of the federal Defense of Marriage Act in 2013, judges have followed suit by overturning state laws protecting marriage between one man and one woman. Cases challenging those laws have been filed in all states that have them.

The map below shows the state of marriage in each state, with more details about each one listed below.

• Alabama—Voters approved constitutional amendment defining marriage as between a man and a woman in 2006; a federal judge struck it down in January 2015. The U.S. Supreme Court declined to extend a two-week stay, and counties began issuing marriage licenses Feb. 9. State Supreme Court ordered judges to stop issuing marriage licenses on March 3.

• Alaska—Passed the first voter-approved constitutional marriage amendment in 1998, which a federal judge overturned in October 2014.
• Arizona—Marriage amendment passed in 2008; federal judge overturned it in October 2014.
• Arkansas—Marriage amendment passed in 2004; county circuit judge overturned it in May 2014. State Supreme Court stayed the ruling pending appeal. Federal court overturned amendment in November 2014.
• California—Marriage amendment, called Proposition 8, passed in 2008; federal judge overturned it in 2010. Ruling did not go into effect until the Supreme Court upheld it in 2013.
• Colorado—Marriage amendment passed in 2006; state judge struck it down in July 2014. A federal judge followed suit later that same month.
• Connecticut—State Supreme Court legalized same-sex marriage in 2008.
• Delaware—State statute legalized same-sex marriage in 2013.
• Florida—Marriage amendment passed in 2008. Circuit judge ruled in 2014 same-sex couples could marry in the Florida Keys. Another circuit judge issued a similar ruling for Miami–Dade County. Then a federal judge struck down the amendment, and the Supreme Court denied a request for an emergency stay.
• Georgia—Marriage amendment passed in 2004; it still stands.
• Hawaii—State statute passed in 2013 legalized same-sex marriage.
• Idaho—Marriage amendment passed in 2006; federal judge overturned it in May 2014. The 9th U.S. Circuit Court of Appeals upheld the decision.
• Illinois—State statute passed in 2013 legalized same-sex marriage.
• Indiana—Marriage law passed in 2007; federal judge overturned it. Federal appeals court upheldthe ruling in September 2014.
• Iowa—State statute legalized same-sex marriage in 2009.
• Kansas—Marriage amendment passed in 2005; it still stands. Judge rules state must allow same-sex marriages while federal case is pending; Supreme Court upheld that ruling.
• Kentucky—Marriage amendment passed in 2004; federal judge overturned it in July 2014, but the law was upheld on appeal.
• Louisiana—Marriage amendment passed in 2004; federal judge upheld it in September 2014.
• Maine—Voter referendum in 2012 legalized same-sex marriage.
• Maryland—Voter referendum in 2012 legalized same-sex marriage.
• Massachusetts—In 2003, became the first state to issue marriage licenses to same-sex couples after a state Supreme Court ruling.
• Michigan—Marriage amendment passed in 2004; federal judge overturned it in March 2014, but it was upheld on appeal. The U.S. Supreme Court agreed in January to hear the case, and until then, the state agreed to recognize roughly 300 marriages conducted after the traditional marriage law was briefly overturned.
• Minnesota—State statute passed in 2013 legalized same-sex marriage
• Mississippi—Marriage amendment passed in 2004; overturned by federal judge in November 2014.
• Missouri—Marriage amendment passed in 2004; one county judge has ruled it is unconstitutional, and another county judge has ordered state to recognize same-sex marriages from other states.
• Montana—Marriage amendment passed in 2004; federal judge overturned it in November 2014.
• Nebraska—Marriage amendment passed in 2000; overturned by a federal judge in March, 2015.
• Nevada—Marriage amendment passed in 2002; federal judge upheld it, but the 9th Circuitoverturned it.
• New Hampshire— State statute passed in 2009 legalized same-sex marriage.
• New Jersey—State judge’s ruling legalized same-sex marriage in 2013.
• New Mexico—State Supreme Court ruling legalized same-sex marriage in 2013.
• New York—State statute passed in 2011 legalized same-sex marriage.
• North Carolina—Marriage amendment passed in 2012; federal judge overturned it in October 2014.
• North Dakota—Marriage amendment passed in 2004; it still stands.
• Ohio—Marriage amendment passed in 2004. Judge ordered state to recognize same-sex marriages performed in other states in April 2014, but that decision was overturned on appeal.
• Oklahoma—Marriage amendment passed in 2004; federal judge overturned it in January 2014. Ruling upheld by federal appeals court.
• Oregon—Marriage amendment passed in 2004; federal judge overturned it in May 2014.
• Pennsylvania—Marriage law passed by state legislature in 1997; federal judge overturned it in May 2014.
• Rhode Island—State statute legalized same-sex marriage in 2013.
• South Carolina—Marriage amendment passed in 2006. Federal judge overturned it in November 2014. Attorney general appealed to the U.S. Supreme Court but the state began issuing marriages licenses on Nov. 19.
• South Dakota—Marriage amendment passed in 2006; federal judge overturned it in January 2015 but stayed the ruling pending appeal.
• Tennessee—Marriage amendment passed in 2006; it still stands. A federal appeals court overruled a lower court judge’s order that the state must recognize three same-sex marriages performed in other states.
• Texas—Marriage amendment passed in 2005; federal judge overturned it in February 2014. Ruling stayed by the Supreme Court pending appeal.
• Utah—Marriage amendment passed in 2004; federal judge overturned it in December 2013. Ruling upheld on appeal.
• Vermont—State statute passed in 2009 legalizing same-sex marriage.
• Virginia—Marriage amendment passed in 2006; federal judge overturned it in February 2014. The 4th U.S. Circuit Court of Appeals upheld the ruling.
• Washington—Voter referendum legalized same-sex marriage in 2012.
• West Virginia—Marriage law passed by state legislature in 2000. Same-sex marriage became legal in October 2014 following the state attorney general’s decision to stop defending the law after the U.S. Supreme Court declined to review an appeals court decision in support of gay marriage.
• Wisconsin—Marriage amendment passed in 2006; federal judge overturned it in June 2014.
• Wyoming—Marriage law passed by state legislature in 1977; federal judge overturned it in October 2014.