Dear Marriage Supporter,
Late yesterday Alabama Supreme Court Justice Roy Moore issued an order preventing state judges from granting marriage licenses to same-sex couples until the full state Supreme Court can consider the implications of the US Supreme Court's decision in the Obergefell case purportedly redefining marriage.
I went on Megyn Kelly's "The Kelly File" show last night on Fox to defend Alabama's action and fought hard against the illegitimate and anti-constitutional ruling of the Supreme Court in Obergefell. I compared it to the Dred Scott decision upholding slavery, and the Buck v Bell ruling allowing forced sterilization of the mentally ill. And I pointed out that if we surrender important principles and values to five unelected judges on the Supreme Court, then we will have surrendered democracy itself.
Here's a link to the interview.
While I respect Megyn Kelly, she unfortunately articulated the pervasive, but wrong-headed, legal concept of judicial supremacy — that a decision of the US Supreme Court "settles" an issue and that everyone must act accordingly. There is no constitutional basis for this approach.
The US Supreme Court decision in Obergefell was anti-constitutional and illegitimate. They invented a right to same-sex 'marriage' out of thin air. There is nothing in our nation's laws, history or constitution that requires states to redefine marriage. The Supreme Court does not have the power to force the other branches of government to act, nor do they have the power to create positive law.
Under normal circumstances, the other branches of government, other federal courts, and the states will move to adjust their laws and practices to conform with a ruling of the US Supreme Court. However, when the Court issues an obviously erroneous ruling — as they did in Dred Scott, Buck and now in Obergefell — the other branches of government and the states must determine how to respond.
Over 70 prominent legal scholars have examined the issues in the Obergefell ruling and they have advised states to continue to uphold their state laws and state constitutional provisions regarding marriage.
Alabama, and other states, must review the decision to determine how it impacts their state constitutional definition of marriage. The litigants to the Obergefell case do not live in Alabama and the case that the Supreme Court considered did not arise from Alabama. Chief Justice Moore has suspended the issuing of same-sex marriage licenses in order for the state Supreme Court to decide for itself how to react to the Obergefell ruling.
I've been encouraged by some of the positive emails I received from NOM members right after I appeared on Megyn Kelly's show. One person wrote, "I wanted to compliment Mr. Brown regarding his appearance last night on the 'Kelly File'. What a strong commanding performance. Not an easy thing to accomplish as he was facing such a formidable presence in Megyn. He poignantly addressed her opposition with such skill & panache."
The US Supreme Court did not settle the issue of marriage. This decision remains up to the people of America, acting through their elected officials.