January 6, 2016

Alabama chief justice defies Supreme Court gay marriage ruling, forbids clerks to issue licenses

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Supporters and opponents of same-sex marriage hold signs on the steps of Jefferson County Courthouse in Birmingham, Ala., onFebruary 9, 2015. Now Alabama chief justice Roy Moore is banning clerks from issuing same-sex marriages licenses. Photo courtesy of REUTERS/Marvin Gentry

Supporters and opponents of same-sex marriage hold signs on the steps of Jefferson County Courthouse in Birmingham, Ala., onFebruary 9, 2015. Now Alabama chief justice Roy Moore is banning clerks from issuing same-sex marriages licenses. Photo courtesy of REUTERS/Marvin Gentry

(RNS) Alabama’s probate courts may not issue marriage licenses to same-sex couples, the chief justice of the Alabama Supreme Court has ordered.

Chief Justice Roy Moore ruled Wednesday (Jan. 6) that Alabama’s Marriage Protection Act, which bars such unions, remains “in full force and effect” despite a June ruling by the U.S. Supreme Court that struck down similar laws banning same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, according to USA Today.

“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Moore wrote in the order.

Alabama is faced with conflicting rulings, between an earlier decision of Alabama’s Supreme Court and the U.S. Supreme Court’s decision in Obergefell v. Hodges, Moore wrote. Until the Alabama court acts to resolve the conflict, its earlier decision stands, Moore wrote.

This is not Moore’s first attempt to blur church-state boundaries. He was Alabama’s chief justice in 2003, when a state judicial panel removed him because he refused to obey a federal judge’s order to remove a 5,200-pound granite Ten Commandments monument from the lobby of the Alabama Judicial Building. But he was re-elected to the post in 2012.


RELATED STORY: ’10 Commandments judge’ Roy Moore wins his old job back


In the same-sex marriage showdown, Moore does not have the authority to override higher courts, Scott McCoy, a senior staff attorney for the Southern Poverty Law Center, told Reuters news service.

“Chief Justice Roy Moore today issued a dead letter,” said McCoy. “This is Moore yet again confusing his role as chief justice with his personal anti-LGBT agenda.”

Reaction on social media was swift and contrary. LGBT voices knocked Moore:

But Christian supporters were vocal about supporting the chief justice:

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  • George Nixon Shuler

    there are many scoundrels in the world today, but in American political theatre there are none quite as blackhearted and self-aggrandizing while exploiting the rubes quite as shamelessly as the disgraced jurist Moore. This is but the latest chapter of his long, sordid, and evil career.

  • Larry

    So Roy Moore has become the 21st Century version of George Wallace. Someone who steadfastly abuses their official power to uphold bigotry and discrimination.

    How he can remain on the bench despite flagrantly violating his oath of office to the Constitution of the United states in such a fashion, speaks badly for the Alabama electorate.

    His orders to the probate court have no legal power, but acquiescence on the matter is just as damming towards them. By claiming they have no choice but to follow a clearly improper and illegal order, is nothing more than feckless plausible deniability.

  • Jack

    Obviously he’s going to lose, but this is what happens when the majority on the highest court in the land thinks it would be….. supremely cool to be a legislature. Well, it isn’t cool, whether the issue is gay marriage or some pet issue of conservatives. A century ago, a conservative SCOTUS was doing the same thing, knocking down liberal laws the majority didn’t like, even though those laws were perfectly constitutional.

    Roy Moore is Roy Moore….little needs to be said…. but the clowns of the SCOTUS majority opened the door for such antics.

  • Bob

    He must be up for reelection this year, and trying to raise campaign funds.

  • Ben in Oakland

    One judge at least told him to take a flying leap.

  • Jack

    Larry, nobody is denying the right to judicial review, the right of courts to review whether laws are constitutional. What’s being denied is the notion that any and every SCOTUS ruling is an accurate ruling, simply by virtue of its occurrence. Based on that sort of thinking, the idea of a reversal would be out of bounds. Dred Scott, Plessy v. Ferguson, and other atrocious rulings would forever be on the books.

    The great temptation of any judge is to rule not in accordance with whether a law is constitutional, but whether a law is in agreement with that judge’s personal beliefs or politics.

    That’s a very live issue and to deny it is to deny reality.

    Having a judicial temperament means having the mental and emotional discipline and restraint to rule that a law is constitutional even when one absolutely despises that law, or unconstitutional even when one absolutely loves it.

    Those who are incapable of that don’t belong on the bench.

  • Jack

    The other possibility – he’s trying to distract attention away from his son’s drug charges, and the fact that ‘Raise up a child in the way he should go…’ didn’t really work out too well in his family.

  • Shawnie5

    When one leaves RNS for several weeks and then returns, the ignorance that abounds here strikes one in the face like a sudden downpour.

    Here is what the father of the Constitution had so say about judicial activist “making law” under the cover of “common law:”

    “Whether the common law be admitted as of legal or constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power…A discretion of this sort has always been lamented as incongruous and dangerous…The committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn by all candid and accurate inquirers into the subject.” (cont.)

  • Shawnie5

    (cont.) “It is, indeed, distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law…a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not…be thrown upon the Constitution, on those who framed or on those who established it, than such a supposition would throw on them.” –The Writings of James Madison, 1790-1802

    Indeed. But of course, “candid and accurate inquirers into the subject” are in short supply here.

  • Ben in oakland

    Jack, as I said, and which you don’t answer, marriage wasn’t redefined. Gay people were.

    the only redefinition that came at all from a legal standpoint– and that is the only one that matters to me– was that man and woman became two people. Not one heterosexual marriage has been harmed or changed by virtue of my marriage. So to argue that I am redefining marriage is meaningless. Marriage itself has not changed culturally from what it means, but another cateory of people have gained access to the institution and to the set of legal, moral, and yes, faith based obligations, benefits, rights, and responsibilities.

    My family, children, life, love, faith, citizenship and assets are every bit as important as yours, Newt Gingrichs, or any other person who thinks that somehow, I’m not really deserving of what is available to formicating and adulter former republican congressmen, childless conservative bloviators, or multiply married evangelicals.

  • Billysees

    Ben made this comment and it needs to be repeated because of its ‘truthful simplicity’ —

    Marriage itself has not changed culturally from what it means, but another category of people have gained access to the institution and to the set of legal, moral, and yes, faith based obligations, benefits, rights, and responsibilities.

    Especially — …another category of people have gained access to the institution…

  • Jay

    Jack, who wrote, “this is what happens when the majority on the highest court in the land thinks it would be….. supremely cool to be a legislature,” obviously misunderstands the Constitution of the United States and the role of the Supreme Court of the United States.

    This is what happens when you have a theocratic demagogue as Chief Justice of the Alabama Supreme Court.

  • Ken

    Judge Moore is a living example of the passive resistence practiced by white lawmakers after the passage of civil rights laws in the 1960s. He is the George Wallace of our time. It is the shame of Alabama that this guy has been re-elected to office. On the other hand, a few runs for governor by Moore have been easily defeated, so the folks in Alabama should get credit for that.

  • None of the SCOTUS justices forced Moore, or anyone else, to do anything. They did what they did of their own volition.

  • For all the Right’s bellyaching about gay marriage, not one Rightist anywhere has explained to me exactly how s/he is harmed if a couple of gays somewhere get married.

    It’s not as though they’re being forced into gay marriages against their will. It’s not as though heterosexual marriages have been made illegal. Their own lives haven’t been altered by the arrival of gay marriage. All that’s happened is that gays can now get married, whereas they hadn’t been able to, previously.

    That is all that’s happened. That it has, has harmed no one, AFAIK. It has benefited gays, of course, since they now have a freedom they hadn’t before, but that’s it.

  • These Christians are demanding Leviticus be followed:
    “Homosexuals are to be put to death” – Yahweh (LEVITICUS 20:13)

    But they also claim JESUS eliminated LEVITICUS with the New Testament!
    SO THEY CAN GO TO RED LOBSTER AFTER THEIR PROTEST!

    “Anyone who eats shellfish shall be put to death” – Yahweh ( LEVITICUS 10:11)

    Funny how God’s only important laws are the ones you decide to follow!
    What an incredibly selfish bunch of nonsense.

  • Jack

    Ben, words have meaning & marriage, being a word, is capable of redefinition. It has been redefined.

    But who does the redefining? In democracies, it’s the people, through custom, evolution of usage, or in the case of a legal term like “marriage,” legislation.

    Many people back gay marriage but oppose the SCOTUS ruling. If you care as much about who decides as how things are decided, this should interest you.

    If you don’t care, here’s what you’re saying:

    “I don’t care how we get to gay marriage. All I care about is getting there.”

    Understood. But imagine if every issue, not just issues affecting you personally, were decided thusly.

    Put another way, I care about many issues, some of which affect me personally. But more than getting my way on any of them, what I care about most is continuing to live in democratic society, even when things don’t go my way. That’s why, for me, process matters. I have no choice but to care about it.

  • Jack

    Jay, you misunderstand. I don’t like Judge Moore. But when SCOTUS makes bone-headed decisions based on what it likes or what it thinks other people like, as opposed to whether something is actually constitutional, guess what? It gives the Judge Moores of life a platform.

    Is that what you want?

  • Jack

    Of course they did, PsiCop. But whenever SCOTUS makes such decisions, it plays right into his hands. It hands him a propaganda tool he otherwise would not have had.

  • Richard Rush

    The definition of marriage has not been changed by SCOTUS. Their decision merely extended marriage rights to people who had been unconstitutionally excluded. Men have always had the right to marry the person they wanted to spend the rest of their lives with, and so have women, but when that person was of the same gender, they were denied marriage for no rational reason whatsoever.

  • George Nixon Shuler

    The alternative would have been to deny rights, so, a known grandstander’s actions are no fault of anyone but himself. This is exactly the reasoning used by an abusive spouse who backhands his or her spouse and then goes, ‘See what you made me do!” In both cases the victim is blamed for his or her own suffering. Moore is just one of the latest bullies to use this strategy.

  • Jack

    Well, Billysees, Ben’s response is a thoughtful reply, a heck of a lot better than the nonsense elsewhere on this thread. Unlike other replies, the problem here isn’t intellect — it’s that the task at hand is seemingly impossible.

    The word, “marriage,” is about people and any definition will unavoidably include some and exclude others.

    With the new definition established by SCOTUS last June, gay couples are included, but not a gay or straight relationship involving more than two people. Are people who are in polygamous relationships and who wish to be married seeing their right to equal protection under the law violated?

    Somehow I don’t think Ben is tossing and turning in his sleep, tormented by the thought that these folks are still excluded, as are a host of other people in other types of relationships.

    The point is that marriage, like any other word, is subject to redefinition and has in fact been redefined by SCOTUS.

  • George Nixon Shuler

    Moore is a political animal, of that there can be no doubt. I have a friend who was a waitress at a fancy steakhouse in Montgomery right near the Capitol building and she said one time Moore came in at 9:55 PM with an entourage of 12 (get the symbolism, yuk yuk), just five minutes short of the posted closing time at 10:00 PM, and they sat around talking and joking long after the meal was finished and the staff was past ready to lock up for the night. Then Moore was presented the bill, paid for it with plastic, and left a tip of…zero. That story is certainly not at odds at all with his public persona. This is just the latest episode in this man’s quest to be as reprehensible as he can be.

  • Jack

    Moore seemingly does cross the line into what theologians condemn as “theonomy”, but again, SCOTUS has just opened a gap the size of several Mack trucks that really opens the door to all sorts of responses.

    The best antidote to extremism of any kind is for mainstream institutions like the United States Supreme Court to behave themselves. When they don’t, demagogues are given a foothold. When people who are selected to run mainstream institutions are themselves about as mainstream as Jack the Ripper on crack, it inspires people on the opposite extreme and gives them a new lease on life.

  • George Nixon Shuler

    what’s redefinition? You redefine yourself by parting your hair on the other side. Institutions are constantly being redefined. the President promised a “fundamental transformation” of America when elected in 2008. With the appointments of Sotomayor and Kagen, in this small corner of America at least, that has happened with the concurrence of the vast majority. That is why, whenever anyone badmouths Obama, I always point out how he appointed Sotomayor and Kagen. Had a Republican gotten in, our rights would be meaningless. Our freedom hangs by a thread. Hell, if Carson or Cruz got in either one of them would appoint Moore in a heartbeat.

  • Larry

    “Third, a common SCOTUS error has been to depart too far from the intent of constitutional drafters. Both conservative & liberal courts have done this.”

    Wrong! The purpose of SCOTUS rulings is not to enforce an orthodoxy based on 18th century political philosophy, but to address present concerns in light of constitutional issues.

    The intent of constitutional drafters or the drafters of any given law is never controlling authority. At best it is influential authority.

    “Founder intent” as it is used now, is an intellectually dishonest thought experiment where one tries to divine the intention of drafters beyond the language of the text and its application. Where one pretends the 14th Amendment never happened nor any case law ever existed.

    It is especially inapt when the subject is civil liberties. The founders did not have a particularly developed sense of them compared to modern lawmakers.

  • George Nixon Shuler

    Wallace eventually made peace with Alabama’s African-American community and would not have won his fourth term without their support. I guess lightning could strike twice and Moore could repent of terrible misdeeds toward LGBTs, but I’m not holding my breath expecting it.

  • Jack

    Richard, of course they changed the definition. Marriage is not just a thing….it’s a thing that’s about people.

    The definition of words can and does change over time…..the question here is who gets to do the redefining.

  • George Nixon Shuler

    Exactly why gay marriage is not despite claims of right-wing Christians, prohibited by Christianity. Thank you.

  • Larry

    SCOTUS did exactly what it should do. Take a law and discuss its merits in light of the 14th Amendment. They found no merits to it and struck it down.

    Moore can’t justify his behavior in light of the decision. The judge is simply trying to pretend SCOTUS said something else. He is just one of a whole bunch of government officials who still want to cling to the notion that their bigotry must be given color of law.

    If you (or any of the rest of the anti-gay crowd) can’t cough up rational and secular justification why a gay marriage ban had to stay on the books, why anyone believe SCOTUS should have let it stay?

  • Larry

    “The word, “marriage,” is about people and any definition will unavoidably include some and exclude others. “

    And without rational and secular reasons to exclude others, there is no justification for banning marriage for certain people.

    So your “definition argument” is missing an important element. You have to justify why things are defined as they are and must stay so.

    “Are people who are in polygamous relationships and who wish to be married seeing their right to equal protection under the law violated? ”

    Nope, but thanks for showing how monumentally desperate your arguments have become. Polygamy and incest are banned due to a host of rational and secular justifications (details provided upon request). None exist for banning gay marriage.

  • Jack

    Just to be clear, the mainstream Christian teaching about Leviticus and Old Testament law is that as a body, it is not for today. It was fulfilled in Christ.

    Law refers to both teaching and penalties.

    For Christians, the specific law as a system has passed away but the teachings behind the law are still relevant.

    Thus the specific penalties for not honoring parents are not for today, but the teaching that parents be honored remains.

  • Jack

    No, George, law entails a teaching and a penalty. When a specific body of law is done away with, the specific penalties are disabled but that doesn’t necessarily mean the teaching behind the law is done away with.

    As for marriage, it’s the opposite of how you’ve portrayed it. In the Bible, the first union that God blessed was that between those who are portrayed as the original parents of humanity — a particular man and a particular woman. Later on in the Bible, God apparently allowed polygamy or certainly didn’t seem troubled by it. Noticeably absent was mention of same-sex marriage.

    Beyond the Bible, it doesn’t seem to have occurred to any civilization, no matter its view on homosexuality — restrictive or permissive — that marriage must include same-sex unions. This is very striking, because plenty of societies were absolutely fine with homosexuality itself and plenty of societies had many prominent people who were openly gay.

  • Ben in oakland

    Jack, you are quite right. I’m not losing any sleep over the problems had by polygamous units. If they have a case, they are welcome to make it, raise money, influence legislatures, fund political campaigns, and take it to court. And if they can raise the issue and present it to me, I’ll be happy to reconsider at that point. So far, I haven’t seen a single argument made in good faith in support of polygamy. It’s always one just like yours– well if blAh-blAh, then why not blah-blah?

    I’m not losing sleep over it because it isn’t my issue. My issue is and always has been legalized discrimination against gay people, our lives, and families, and legislated inequality between gay people and straight people. The Obergefell decision eliminated one more barrier to ending legal discrimination, ending legal bigotry, ending legislated inequality. Just like ending gay only sodomy laws. dO you disagree with that, or agree that my private, consensual behavior is a crime.

  • Ben in oakland

    Again, Jack, this is a question which you simply refuse to deal with. Richard stated it in yet another way.

    It is not marriage that has been redefined,countless the sole meaning of marriage is that a penis and a vagina are legally and/or religiously joined.

    It is gay people that have been redefined. If male-female couples have been excluded from marriage, had any of their marital duties changed, or if it has had the slightest demonstrable effect on any heterosexual marriage, you might have a pointt,

    But it hasn’t and doesn’t.

  • Jack

    Wrong, George. I see the SCOTUS ruling as a wrong decision which has the added disadvantage of re-empowering someone like Judge Moore.

    Great job, SCOTUS….a bad ruling in itself, opening the door to a demagogue.

  • Jack

    Ben, your premise, that the context for the absence of gay marriage across time and place has been the devaluing of gay people, is refuted by history.

    It is based on the unspoken premise that the idea that gay people should be treated equally is a uniquely modern idea. That premise is contradicted by the fact that across the world, in ancient times, as long as 20, 30, and 40 centuries ago, homosexuality was not only tolerated, but celebrated.

    The contrast between common acceptance throughout recorded history of the equality between heterosexuals and homosexuals and the complete absence of gay marriage or even calls for gay marriage throughout that same history suggests the obvious. The felt need for gay marriage is a uniquely modern phenomenon that has more to do with modernity itself than anything else. To present it as the fulfillment of an age-old longing, and its absence as the result of some bigoted, monstrous injustice, is to revise history.

  • Jack

    Put another way, there is little evidence throughout history that the universal absence of gay marriage across time and place was seen by anyone, gay or straight, as an injustice visited upon gay people. This, again, appears to be a uniquely late-20th-century western notion, and again, bears no connection to how well or how badly gays were or have been treated today or yesterday, in our culture or in any culture.

  • Ben in oakland

    And you just created a perfect straw man. I made no such claims.

    There is some evidence that gay marriage has been a reality. Not a lot, but some. The rites of sergius and bacchus, the status of the ‘aikane in Polynesia, evidence of same sex nuptials in Greece and Rome, comrade loves of the samurai. Very likely that what evidence there was was systematically destroyed lest morality actually take precedence.

    But wait! You are arguing from silence, which is something that you told me just a few days ago that I must not do.

    There is no evidence, in the entire history of the world, until about 150 years ago, that women were ever considered to be the legal, social, and moral equals of men. Yet here we are.

    The premise that gay people should be treated equally to straight people in law and society is indeed a modern idea. For 2000 years, Religious people felt fine about executing us. Funny how things change.

    Come up with some reasons why it shouldn’t change.

  • Larry

    “….context for the absence of gay marriage across time and place has been the devaluing of gay people, is refuted by history.”

    Which stopped being true once homosexuality was no longer a criminal act, when being gay was no longer grounds for losing custody of children, when homosexuality was no longer grounds for military discharge, when DOMA was stricken down, and when several states and countries recognized legal rights of gays to marry.

    “It is based on the unspoken premise that the idea that gay people should be treated equally is a uniquely modern idea.”

    Which makes it appropriate to change laws discriminating against them here and now. Its called progress. We recognize they are a group subject to irrational (and religious based) discrimination and cannot justify reasons for such things at present.

    Tradition and history make a poor basis for laws. Without some legitimate purpose, there is no reason to keep them. Especially when discriminatory.

  • Larry

    “….context for the absence of gay marriage across time and place has been the devaluing of gay people, is refuted by history.”

    Which stopped being true once being gay was no longer a criminal act, when being gay was no longer grounds for losing custody of children, when being gay was no longer grounds for military discharge, when DOMA was stricken down, and when several states and countries recognized legal rights of gays to marry.

    “A uniquely modern idea” makes it appropriate to change laws discriminating against them here and now. Its called progress. We recognize they are a group subject to irrational (and religious based) discrimination and cannot justify reasons for such things at present.

  • Shawnie5

    Wrong. “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
    –Thomas Jefferson, letter to William Johnson, June 12, 1823.

    Further: “The improvements made by the dead form a charge against the living who take the benefit of them. This charge can no otherwise be satisfied than by executing the will of the dead accompanying the improvements.” –James Madison to Thomas Jefferson, Feb. 4, 1790.

    As for a “developed sense of civil liberties” that the founders supposedly didn’t have…neither did the author of the 14th: “The Fourteenth Amendment…does not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.” –John Bingham, H.R. No. 22.

  • Jack

    Ben, let’s be clear. I am not arguing that the absence of gay marriage in history is an argument against gay marriage today. I am arguing that the absence of gay marriage in history, even in societies that celebrated homosexuality, is an argument against the idea that not having gay marriage is itself an act of bigotry and that having gay marriage is the righting of a historic wrong.

    Note the difference between that and, for example, the abolition of laws against sodomy or in some societies, cohabitation, or the advancement of laws that secure the rights of gay people in housing, employment, and other arenas. Such instances are unmistakable victories against bigotry and discrimination.

    Gay marriage is not an inevitable extension because marriage was never defined or felt in such a way and its absence across time and place had nothing to do with bigotry or second-class status.

    Perhaps we’ll just have to agree to disagree on such matters.

  • Jay

    The Supreme Court did not rule in Obergefell on the basis of what it likes or does not like. It ruled on the basis of the equal protection and due process clauses of the Constitution of the United States. I suggest that you read the eloquent majority opinion authored by Justice Anthony Kennedy and joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor.

  • Jack

    Ben, that’s simply not the case. The idea that gay people should be treated equally is not a specifically modern contention, the evidence being that in many ancient societies, that is exactly how they were treated. The high status of gay people in many ancient societies speaks for itself.

  • Jack

    Larry, correct me if I’m wrong, but if you read the strings of posts, the immediate issue is not whether gay marriage is a good idea or not. It’s mainly whether SCOTUS should be making that decision or whether it should be the people through their legislators. It’s whether the reasoning behind the decision passed constitutional muster.

    Put another way, again, plenty of people are for gay marriage but against the SCOTUS ruling, for the same reason that plenty of people are pro-choice on abortion but against Roe v. Wade.

    If you can’t understand how or why either stance is logically possible, you don’t understand how American constitutionalism works.

  • Jack

    George writes, “had a Republican gotten in, our rights would be meaningless. Our freedom hangs by a thread.”

    Now that’s an extremist left position if ever there was one.

    You sound a lot like people I know who parrot the extreme right and voice exactly the same concerns.

    Earth to George Nixon Shuler:

    No matter who wins in 2016, the Republic will survive.

    It’s the crazies on both sides who whip themselves and their ideological cohorts into a frenzy, convincing themselves that if the other side gets in, Armageddon is nigh.

    Not quite…..

  • larry

    Got anything coming from a time after we stopped considering human beings chattel property? 🙂

  • Jack

    Larry, again, the argument as I understand it is procedural — ie not how to decide but who gets to decide?

    Applied to marriage, the people through their legislatures get to decide. If they want gay marriage, they should have it. If they don’t want gay marriage, they should not have it. Under the Constitution, they have a right to choose. It is your burden to show otherwise. It’s your burden to show where in the Constitution it says the matter is out of their hands. It is your burden to show how a handful of justices, rather than 300 million Americans in their respective states operating through their elected reps, gets to snatch that choice out of their hands.

    Instead, the justices have decided. And what they’ve decided is now the law of the land and should be obeyed. Moore is hence wrong, dead wrong. We are a law-abiding people.

    But that doesn’t mean their decision was the right one.

  • Shawnie5

    Jay, in Obergefell the opinion mentioned both due process and equal protection but did not coherently tie the decision to either one. It completely ignored a half a century of 14th Amendment jurisprudence (particularly the “suspect classifications” area that the pro-ssm camp was so anxious to get a declaration on). About the only thing we can say about it with any certainty was that Kennedy voted for it because he didn’t want gay people to be “cold and lonely.” And while everyone is entitled to their own personal sentiments, this is hardly the sort of thing that a Supreme Court justice is expected to bring into the process of Constitutional interpretation.

    Most people who consider Obergefell “eloquent” have no real background in Constitutional jurisprudence. Those who do, even those who are in favor of the ultimate outcome, find it a logical disaster.

  • larry

    “Applied to marriage, the people through their legislatures get to decide. If they want gay marriage, they should have it.”

    1. ALL discriminatory laws are passed by a majority through the legislatures. So obviously that isn’t true. It makes no difference that the majority of voters wanted it. It violated the rights of gays in a way which could not be justified.

    2. The subject of the SCOTUS case was not a law granting gay marriage, but a ban on it. So you still have to justify why the ban had to exist. The burden of justifying bans on behavior and limits to rights is on the government. Your attempt to reframe the issue is dishonest.

    3. Since you will never cough up rational and secular purposes behind gay marriage bans, you can’t form a reasonable basis for why SCOTUS was wrong to shoot them down.

  • Richard Rush

    Jack, your invoking of history, as if it is a relevant basis for rejecting societal changing decisions made today, is not valid. If anything, history demonstrates why things needed to change in order to eliminate the oppression and savage barbarity that once defined the quality of human life. If we felt compelled to continue the way things were through most of human history, we would be living under an absolute monarchy in bed with religion, women would be utterly powerless, most of us would be peasants, some of us would own slaves, and advocating democracy would probably result in the death penalty.

  • larry

    Not at all. The proponents of the gay marriage ban couldn’t even cough up a rational basis for the law. You can’t come up with one either.

    Kennedy voted the way he did because he built upon his previous decisions. He could not find any legitimate reasons for gays to be banned from the military, criminalized, or denied government benefits. Shooting down laws which banned gay marriage fit in well with the reasoning of the prior case law on the subject of discrimination against gays.

    So instead of wasting everyone’s time on nonsense claims as to why you don’t like Obergfell, why don’t you try to answer the question all those gay marriage ban supporters could not:

    Why should a gay marriage ban be legal?

  • Wrong! Bans on activities and limits to civil liberties have always put the burden of justifying them on the government. All 14th Amendment equal protection cases have taken such a stance.

    “The idea that a court in 2015 can suddenly find on a particular issue an equal protection claim that no prior generation of judges even thought about in the entire history of the United States of America …”

    Brown v. Board of Ed was exactly such a decision. So no. You are wrong about that as well. You are also ignorant of the backlog of related cases going from 2003 from which Obergfell built upon. So you can’t even keep the facts straight here.

    If gay marriage bans are so worthy of enshrinment in law, why are you so afraid to give rational and secular justifications for them? Oh right, because there are none. There is no conceivable reason to ban gay marriage other than bigotry. But you don’t want to admit that openly. So you are left with a ton of half arguments and nonsense.

  • “It’s like saying that because knuckle-dragging bigots used bogus states rights arguments to deny the civil rights of black people, that invalidates the concept of states rights.”

    For the most part it did! States rights arguments could not be taken seriously on the subject of civil liberties after the 14th Amendment.

    At this point the only conclusion to make is, you are just a dishonest bigot. One of the knuckledraggers you described back 2 generations ago. Someone who is too afraid to give the real reason why you thought gay marriage had to be banned by law. You have made it clear with such a parade of evasion. You can’t even remotely pretend such laws had reasonable merit.

  • Jack

    No, Ben, reread the posts and their progression. You’re ignoring the many cultures throughout history that treated gays equally in every way. The point is that even in those societies, where gays were disproportionately represented among the educated elite, there was not even a hint of a clamoring for gay marriage. We have plenty of writing from those societies on every issue imaginable, including sex and marriage and being gay. Not a peep about gay marriage.

    The link between the absence of gay marriage and a presence of bigotry was zero. One thing had nothing to do with the other. If it did, then, again, we would expect to see some evidence of a push for it in the most tolerant of ancient societies. What we see is nothing like it.

    Again, gay marriage is a uniquely modern cause, related to the unique aspects of modernity.

  • Jack

    Richard, I never said or implied that the absence of gay marriage in history is an argument against the acceptance of gay marriage today. Reread the various posts and see for yourself. I said that the absence of gay marriage in history cannot be attributable to the presence of bigotry because in much of the ancient world, such bigotry was simply not there. In much of that world, again, homosexuality was celebrated and accorded equal status.

  • Richard Rush

    Jack,

    “Marriage is a state issue . . .” That’s NOT true for the major aspects of marriage. SCOTUS’ Loving v. Virginia decision overturned all prohibitions by states on interracial marriage. And Utah would not have become a state if they had not submitted to the Federal government’s demand that a ban on polygamy be written into the State’s Constitution.

    It would interesting to see how quickly the Federal government would act if a state required, for example, all couples to be medically certified as fertile in order to be issued a marriage license. Of course, that would rule out same-sex marriages.

  • Shawnie5

    The difference in Loving vs Virginia is, of course, that the 14th Amendment was expressly intended to address race: “If the rebel States would make no denial of right to emancipated citizens no [fourteenth] amendment would be needed.” — John Bingham

  • Shawnie5

    One doesn’t opt out of proper legal analysis in a Supreme Court opinion and trust a previous trend to fill in the blanks. Each case has a unique set of facts and stands on its own.

    As for “why a gay ban should be legal,” the proper question is why it should NOT be legal. The SCOTUS held in 1993 that any conceivable basis for a law is sufficient, even if it was not the actual basis. Everybody feels differently about this, but my own opinion is that ssm jeopardizes the rights of children to be raised by their own natural biological parents if at all possible. The introduction of gay marriage makes it far more likely that surrogacy bans in various places (including your own state) will be overturned, leaving women and children vulnerable to exploitation. Indeed, just hours after Obergefell came down there were calls for “family equality” next: http://www.latimes.com/opinion/op-ed/la-oe-nejaime-gay-marriage-decision-does-not-solve-everything-20150628-story.html

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  • Jay

    So interesting to see how people like Shawnie5 and Jack are so contemptuous of bedrock constitutional principles like equal protection under the law even as they no doubt love to pretend that they live in a nation with liberty and justice for all. Their apparent love of majoritarian tyranny is such that it would be an interesting experiment if we could put their marriages to a popular vote or allow majorities to determine whether people of their particular faith or color could be barred from serving in the military or from adopting children. Subjecting groups of people to disparate treatment has wreaked enormous damage both to members of those groups and to the nation itself. Thank goodness that Justice Kennedy and his collegues in Obergefell actually take seriously the notion that individuals are entitled to the equal protection of the law and that groups cannot constitutionally be discriminated against because of the religious bigotry of others.

  • Jack

    Way not to go, pseudo-Jack.

  • Larry

    Of course in both cases, the states could not cough up a legitimate purpose served by the laws banning marriage between those affected.

    “that the 14th Amendment was expressly intended to address race”

    And this is why “drafter intent” is such a non-starter when it comes to interpretation and use. It allows people to engage in thought exercises to divine the intent of the lawmakers (ie make up nonsense) to limit interpretations of legal text, far beyond what could be stated in a plain reading of it. Which is why it is a tool of intellectually dishonest types like Scalia and Thomas.

    Nowhere in the 14th Amendment is race specifically mentioned as a sole factor, nor has “equal protection under the law” ever been so severely circumscribed in practice.

    The irony being, that had the anti-gay bigots left well enough alone and not passed legal bans (as a way to stem inevitable popular votes favoring it), gay marriage would not be nationwide for at least another decade or…

  • Larry

    I have been correcting you the entire time. You just haven’t bothered to notice.

    ” It’s whether the reasoning behind the decision passed constitutional muster.”

    If you can’t even come up with legitimate rational and secular reasons behind the gay marriage bans, you can’t possibly make a good faith argument concerning whether a decision to strike them down passed constitutional muster.

    “plenty of people are for gay marriage but against the SCOTUS ruling”

    Cite one.

    “for the same reason that plenty of people are pro-choice on abortion but against Roe v. Wade”

    Cite one of them as well

  • Larry

    “As for “why a gay ban should be legal,” the proper question is why it should NOT be legal.”

    Wrong, the state legislatures instituted bans on the activity. A ban requires the burden to be put on the state to justify it. If bans on gay marriage are so constitutionally sound, you would not be so evasive here as to try to shift burdens here?

    It should be a no-brainer if such a reasonable rational and secular justification existed. But your answer pretty much makes the answer clear. None exists. Hence the evasion.

    “but my own opinion is that ssm jeopardizes the rights of children to be raised by their own natural biological parents if at all possible.”

    OK, that “reason” is just too ridiculous for words.

  • Shawnie5

    “A ban requires the burden to be put on the state to justify it. in your opinion.” Who told you that? There is no special standard of review for bans.

    “OK, that “reason” is just too ridiculous for words.” Perhaps in your opinion, But every proposition you’ve offered here has been just exactly backward and wrong. Why should anyone care what you find ridiculous?

  • Shawnie5

    “… it is a tool of intellectually dishonest types like Scalia and Thomas.” As well as the founding fathers, who have now been vindicated in their pessimism about the ability of the people to hold on to the republic they had been bequeathed.

    “…nor has “equal protection under the law” ever been so severely circumscribed in practice.” If it had not been so expressly circumscribed, and by the same generation which enacted it, the 19th Amendment would never have been necessary to give women the vote. If the 14th was not intended to deal with gender, then it was not intended to deal with ssm.

    You see, Larry, the Constitution is a social contract among the people. Where a contract is ambiguous, parol evidence us brought in to ascertain the contracters’ intent. To impute a meaning to any Constitutional provision that the people did not agree on and vote for amounts to denial of legislative representation — which is exactly why we fought a revolution.

  • Jack

    Larry and friends do have it exactly backwards and the reason is obvious: They’re looking at substance and not process. They can’t or won’t distinguish between what a policy decision should be and who should be making the decision. They wanted gay marriage and they didn’t care who did or didn’t have the authority under the Constitution to make it happen.

    That’s why they keep pestering constitutionalists to state what they have against gay marriage. They can’t get it through their heads that whether one is for or against gay marriage and whether SCOTUS’ ruling for gay marriage was correct are two separate questions. You can be for gay marriage and still be against the ruling, but for unprincipled and cynical ideological fanatics who care little about constitutional jurisprudence, such a position is perplexing. They think everyone is as they are — consumed by outcome and not process, and believing the ends justify the means.

  • Jack

    Larry, even you know that’s silly. When something is abused, that presumes there is a normal and legitimate use for it which has been perverted by the abuse. The answer is to stop the abuse not discontinue the legitimate use.

    You really seem uncomfortable with American constitutionalism. As I’ve said many times, you’d probably be more happy in a more centralized country like France or some other state in Old Europe.

  • Jack

    The problem, Shawnie, is, of course, that you’re exposing Larry and friends to the common-sense interpretive notion of original intent — which is like exposing vampires to sunlight.

    Now you see what you’ve missed in your absence — a surreal sea of bedlam filled with stranglers of logic bobbing up and down.

    The good news is that these sea creatures are confined to these boards.

    The bad new is that some of them vote.

  • Jack

    To interpret any example of communication, written or oral, without good-faith inquiry into the intent of the communicator, is not only absurd but dishonest.

    If you don’t believe that, Larry, then watch me take every subsequent word and sentence you post and interpret it irrespective of your intent, no matter how obvious.

  • Shawnie5

    Indeed, Jack. Depressing beyond words to come back and witness the same hapless products of a reality show/video game/fast food culture, in desperate need of remedial reading, trying to discuss such a fine product of educated and moral men as our Constitution. Washington foresaw our times so well: “The blessed Religion revealed in the word of God will remain an eternal and awful monument to prove that the best Institutions may be abused by human depravity; and that they may even…be made subservient to the vilest of purposes. Should hereafter those who are entrusted with management of this government, incited by the lust of power overleap the known barriers of this Constitution and violate the inalienable rights of humanity, it will only serve to show that no amount of words however provident and sacred, can be formed to stand against the sweeping torrent of boundless ambition on one side aided by the sapping current of corrupted morals on the other.”

  • Shawnie5

    BTW, Jack, you might want to check out Preston Sprinkle’s blog at Patheos sometime. I always look forward to his posts as I agree with him more than with any other blogger I’ve come across. It’s much better managed, and the trolls are better-mannered and sometimes actually make an attempt at supported argumentation.

  • Shawnie5

    Funny indeed to hear some of them carry on about “due process” while having no conception of what “process” is or why it is crucial.

  • Shawnie5

    Sure. Everything said surrounding the drafting and enactment of the 14th, including Bingham’s statement above, comes after that time. That hardly matters, though. The principles of constitutional interpretation, exercised within the framework of separation of powers, do not change because amendments have been added. They are simply applied to the amendments themselves.

  • Shawnie5

    “If we could put their marriages to a popular vote or allow majorities to determine whether people of their particular faith or color could be barred from serving in the military or from adopting children.” That is exactly what happened…first when we enacted the 1st amendment along with the constitution, and second when we ratified the 14th Amendment. That is what amendments are all about, making things unconstitutional which previously were not, or vice versa. I have no contempt at all for equal protection — as it was voted upon and enacted by the people.

  • Jack

    A prescient George Washington indeed, Shawnie. It was as though he was listening to the goose-like honking of Larry and friends heard faintly from a far-distant future — and shuddering as he saw them pecking away at the Constitution far off in the distance.

  • Jack

    Supported argumentation?

    What a concept, Shawnie.

    Maybe I’ll check out that blog.

    The tradeoff, of course, is that unless we return here on occasion, the inmates will assume full control of the asylum.

    In addition, watching them flail away at George Washington, James Madison, John Adams or making them look more like goose-stepping commissars or late 1960s refugees is faintly amusing.

  • Larry

    Its tough to pretend I am arguing with an intelligent person when they are so willing to ignore a century and a half of legal precedence and reasoning to make a patently dishonest point. So I won’t.

    If you can show me a single Equal Protection case that was before the Federal court system where the court claimed it ONLY applied to racial inequality I might not consider your point complete nonsense. But that won’t happen.

    Its amazing what kind of contortions you have to go through in order to avoid the ramifications of a fairly comprehensive Supreme Court decisions.

    Of course the Constitution must be construed as narrowly as possible if one is trying to justify discriminatory legislation which lacks any and all rational and legitimate purpose. Anything to avoid discussing the actual merits of a law. BTW your “biological parent” argument is one of the least honest and most insane things said on this thread so far. That is saying a lot.

  • larry

    Still can’t answer the question. You are doing your best (which is still pretty damn ridiculous and dishonest) to oppose a decision striking down a law. But you can’t even discuss said law on its own merits. That is silly.

    SCOTUS has the power to strike down laws which violate constitutional principles. If one can’t show why a given law adheres to such principles, they can’t argue why it should have stay on the books.

    You obviously are too afraid to say why you think Gay marriage bans needed to stay. Why they were somehow necessary. We know the answer is nothing which could possibly meet constitutional muster.

    I don’t know which is more silly, your arguments here or that you think everyone else is so brain damaged that they would not smell the bovine effluence wafting from them.

  • Shawnie5

    “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.” –The Slaughter-House Cases, 83 U.S. 36 (1873).

    “Of course the Constitution must be construed as narrowly as possible if one is trying to justify discriminatory legislation.” It need not be narrowly construed if it is evident that those who enacted it intended it to be construed broadly. But we DO know the intent behind the 14th.

    “BTW your “biological parent” argument is one of the least honest and most insane things said on this thread so far. That is saying a lot.” So you opined before. You still haven’t, however, demonstrated why your utterly uninformed opinion matters.

  • Jack

    Shawnie, what we’re seeing here is pure sophistry on parade. We are treated to an avalanche of rhetoric, marshalled to support a predetermined conclusion, rather than fidelity to the actual written text and its meaning in terms of historical intent and context. The result is the creation, ex nihilo, of an unconditional right that is found or implied nowhere in the Constitution or the minds of either the Framers or, in this particular case, the drafters of the amendment in question.

    This is not just a constitutional problem, but frankly a moral and ethical one. It involves the unprincipled willingness to use the 14th Amendment as a tool for what one wants, rather than interpreting it honestly and faithfully.

    The lie is justified as a means to right a perceived wrong or to advance a vision of social justice, but a lie remains a lie, and principled people reject this cynical approach as an assault on honesty and reality.

  • Shawnie5

    “…they are so willing to ignore a century and a half of legal precedence and reasoning to make a patently dishonest point.” BTW, it was Justice Kennedy, not I, who ignored a century and a half of legal precedence and reasoning on equal protection (although I’ll agree that it was for an extremely dishonest purpose). First by ignoring the SCOTUS of the years immediately following the 14th’s ratification in confining its application to that which the people actually voted for, and then by ignoring the much hazier jurisprudence involving suspect classes and levels of scrutiny that has grown up around it in modern times. But of course the founders foresaw the “overleap of the known barriers of the Constitution,” incited by the lust of power” of those entrusted with its management and “prompted by the supineness or venality of their constituents” as Washington so accurately phrased it.

  • Shawnie5

    “It involves the unprincipled willingness to use the 14th Amendment as a tool for what one wants, rather than interpreting it honestly and faithfully.”

    Exactly, Jack. It is Jefferson’s “squeezing or inventing meaning from the text” in order to suit the whims of Washington’s “venial constituency,” and all in contravention of the Constitution’s prescribed amendment process by which the venial constituency may legitimately make those changes if they so strongly desire them and have done so many times already.

  • Jack

    In other words, Shawnie, the Framers foresaw the Larrys of this world, not just the barkers on the sidelines (Larry and friends) but the ones who would attain the actual power to make mince meat of the text in service to their own ideology or their immediate and narrow wants.

  • Shawnie5

    Pretty much. No wonder they were such pessimists — but unfortunately it seems one can seldom go wrong underestimating human virtue and intelligence.

  • Jack

    And of course, this is one of the many empirical proofs for the Gospel, and the broader Biblical view of fallen humanity — a view that, not coincidentally, most of the Framers embraced to one degree or another.

  • Shawnie5

    Precisely. Which is why even the least orthodox among them did not believe that the average citizen could handle the kind of freedom being given them by the Constitution without the restraining and tempering influence of religion. This is the exact reason why Madison, for one, was so zealous about separation of church and state. Religion needed to be as pure as possible in order to nourish public virtue and responsibility, and established religion is usually corrupt and ineffective.