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Category Archives: Law

The Alabama Supreme Court Battle

The US Supreme Court has set a precedent upholding the right of states to define marriage as the union of husband and wife. All federal and state judges—including those in Alabama—are bound by that precedent.

148044182In a recent post for the Public Discourse, NOM Chairman Dr. John Eastman outlines the underlying questions and facts that current developments in Alabama are bringing to the surface. When Alabama Supreme Court Chief Justice Roy Moore ordered probate judges to withhold issuing marriage licenses to same-sex couples, news stories abounded with accusations of discrimination on the part of Chief Justice Roy. After all, a federal district judge had already declared that the law defining marriage as between a man and woman is unconstitutional: surely Moore’s stance would be swiftly dismissed.

rmooreHowever, while same-sex marriage proponents cried “injustice” the entire Alabama Supreme Court ratified Chief Justice Moore’s stance with a 7-1 ruling. As same-sex marriage proponents continue to accuse Alabama of unconstitutional actions, Dr. Eastman reminds us that we have not one, but two judicial systems in America, and explains why a single order by a federal judge does not decide what the Constitution “really” says.

Federal courts exist side by side with state courts, and both have a duty to follow the US Constitution. Indeed, as Article VI of the Constitution makes clear, “All . . . judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Decisions of the lower federal courts—what the Constitution calls “inferior courts”—are not binding on the state courts. If the lower federal courts in a state interpret the Constitution in a way that conflicts with the interpretation adopted by the state courts, neither decision has binding effect on the other.

While a federal district court order declaring a state law unconstitutional and enjoining its enforcement can have statewide effect if there is a statewide official involved in the case before the court, that order can only bind the defendants named in the suit, their officers and agents, and “other persons who are in active concert or participation with” them, as specified in the Federal Rules of Civil Procedure. The order cannot bind people not before the court or acting in concert with them.

Under Alabama law, probate judges—who are responsible for issuing marriage licenses in Alabama—are judicial, not executive officers, and are entirely independent of the executive branch of government. Therefore, the order issued to the Attorney General of Alabama did not and could not bind probate judges.

479208815Dr. Eastman also explains that it was not Chief Justice Moore who failed in his duty, but Judge Callie S. Grande, the federal district judge who struck down the Alabama law defining marriage as between one man and one woman:

...the ethical considerations that led some to chastise Chief Justice Moore were misdirected. It is federal district judge Callie Granade who acted lawlessly by failing to follow existing Supreme Court precedent that remains binding on her. Indeed, were Chief Justice Moore to follow Granade’s order, he would be violating his duty to comply with the binding authority of the Supreme Court, in deference to a lawless order by a single federal trial court judge. In a well-reasoned and lengthy opinion adopted by a 7-1 vote, the Alabama Supreme Court has concluded just that.

You can read Dr. Eastman’s powerful article here, which not only explains what is happening in Alabama, but why states have every right to define marriage as the union of one man one woman.

National Organization for Marriage Commends Alabama Supreme Court For 7 - 1 Ruling Upholding Traditional Marriage

FOR IMMEDIATE RELEASE: March 4, 2015
Contact: Elizabeth Ray or Matille Thebolt (703-683-5004)


"The Alabama Supreme Court is exactly correct that no federal judge has the power to order a state to issue illegal marriage licenses. Other states should follow suit." — Brian Brown, NOM president —

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Washington, D.C. — The National Organization for Marriage (NOM) today commended the Alabama Supreme Court for ordering state officials to cease issuing marriage licenses that are illegal under state law, and thus defied a federal judge who is attempting to impermissibly impose her views of marriage on the people of Alabama.

"We praise the justices of the Alabama Supreme Court who have ruled in overwhelming fashion that the laws of Alabama defining marriage as the union of one man and one woman must be followed by state officials," said Brian Brown, NOM's president. "A single federal judge does not have the authority to force a state to redefine marriage and it's high time that out of control judges were put in their place. We call on other states to similarly order their state's officials to enforce state marriage laws."

Brown noted that the US Supreme Court has never ruled against traditional marriage laws and that binding Supreme Court precedence exists (Baker v Nelson) specifically upholding state laws defining marriage as the union of one man and one woman.

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To schedule an interview with Brian Brown, president of the National Organization for Marriage, please contact Elizabeth Ray, [email protected], or Matille Thebolt, [email protected], at 703-683-5004.

Paid for by The National Organization for Marriage, Brian Brown, president. 2029 K Street NW, Suite 300 Washington, DC 20006, not authorized by any candidate or candidate's committee. New § 68A.405(1)(f) & (h).

The People of Nebraska Deserve Their Day in Court

Americans may disagree on a whole host of issues, including and especially when it comes to the marriage debate, but commitment to the democratic process is critical. What's happening in Nebraska is detrimental to Americans, and to our nation, long-term.

Nebraska's StatePaper.com explains:

GettyImages_137442741[Federal judge Joseph Bataillon] is being asked by seven same-sex couples to issue a preliminary injunction, declaring that they all have a right to be married in the State of Nebraska. They have asked further that the court should order the State of Nebraska and its various agencies, including county clerks, to immediately issue marriage licenses to these couples and to alter the law in Nebraska to allow all same sex couples to be married immediately, even before Nebraska gets its day in court and this matter is tried in the traditional way.

Getting your day in court is important. There are many procedures, such as requiring witnesses to testify under oath, using the power of a subpoena to require people to give you honest evidence and make statements under oath before a trial, and making sure the matter before the court fully heard with live persons and not just lawyer-crafted written statements, affidavits and declarations.

So, now Judge Bataillon is considering the matter and has told everyone he will issue his ruling soon. No trial, no get your “day in court” with all the protections of a fair and equal process leading up to trial. Just consider and decide the issue before a trial.

How can that even happen? How can a judge rule before a full and fair trial?

Read the full editorial at StatePaper.com.

Conservative Panel Appointed to Hear Gay Marriage Cases in 5th Circuit

The 5th Circuit Court of Appeals today announced on their website the justices selected to hear the appeals of lower court rulings on gay marriage cases from Texas, Mississippi and Louisiana. The panel consists of Judges Patrick Higginbotham of Dallas, Jerry Smith of Houston and James Graves Jr. of Jackson, Miss. Higginbotham and Smith are conservative judges appointed to the bench by President Reagan, while Graves is an Obama appointee. Marriage supporters tell NOM they are encouraged by the panel.

GavelThe panel will hear an appeal next week from state officials in Texas and Mississippi where lower federal court judges overturned state marriage amendments defining marriage as the union of one man and one woman. The same panel will hear an appeal from gay couples in Louisiana who were rebuffed by a federal judge in their attempt to redefine marriage in that state.

The 5th Circuit is one of the most conservative in the country. If they vote to uphold traditional marriage laws, as many observers expect, they will join the 6th Circuit which issued a similar ruling this past October. The US Supreme Court is now considering taking the 6th Circuit case, something that NOM has called upon them to do. The first opportunity for the SCOTUS justices to take the case will be in their conference scheduled for January 9th.

Arkansans Voted to Repeal Bad "Civil Rights" Law

This week, the citizens of Fayetteville, AR voted to repeal a "civil rights" ordinance that had raised concerns about wedding vendors and others being targeted for harassment and punishment for declining to celebrate same-sex 'marriages,' among other worries.

Ryan Anderson at The Daily Signal explains:

Wedding_PhotographerAmong other things, the law [Ordinance 119] made it a crime for citizens to engage in what the government deemed to be “discrimination” based on real or perceived sexual orientation and gender identity. Concerns were raised about wedding vendors and “discrimination” based on sexual orientation, as well as bathroom policies and “discrimination” based on gender identity (particularly transgender individuals—which bathrooms must biological males who identify as women, and biological females who identify as men, be allowed to use).

[...]

Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation or contracting.

And so, on Tuesday of this week, the citizens of Fayetteville rightly acted and voted to repeal Ordinance 119.

Anderson points out that this case highlights why laws such as the Marriage and Religious Freedom Act, sponsored by Representative Raul Labrador of Idaho, are needed to protect citizens against such overreach by government pushing radical agendas with regard to marriage and family.

"Judicial Humility and Respect for Citizens"

Over at The Daily Signal, Ryan Anderson takes a look at the important decision by the U.S. Court of Appeals for the 6th Circuit yesterday.

ScaleRyan notes that "judicial humility and respect for citizens lie at the heart of the opinion," quoting:

A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states.

Ryan goes on to comment:

Ultimately, the 6th Circuit ruled that it would not usurp the authority of the American people to discuss, debate and make marriage policy. The ruling argued that change could come in one of two ways: through a judicial usurpation of politics or through the political process. And the court rightly refused to take the former course. It would leave to the people the question of whether to take the latter.

The court argued that it “is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” No, judges alone should not have this discussion—all Americans should.

Read his whole piece for a richer understanding of this landmark ruling.

"Government should respect the rights of all citizens."

In The Daily Signal, Ryan Anderson of Heritage writes:

It’s hard to imagine a more bedrock American right than being free to live according to your religious convictions. The very idea of being forced to violate your beliefs seems unthinkable.

Unless you happen to believe that marriage refers exclusively to the union of a man and a woman. Because more and more often, the government is penalizing and coercing those who simply wish to be free to live in accordance with that belief.

[...]

[B]ecause various state and local governments have passed laws creating special privileges based on “sexual orientation and gender identity” (dubbed SOGI) [...] government harassment is likely to increase. For it treats the belief that marriage is the union of a man and woman as if it were insidious discrimination.

But it shouldn’t. Even if the government recognizes same-sex relationships as marriages, it need not and should not require any third party to recognize a same-sex relationship as a marriage. Government should respect the rights of all citizens.

Indeed, a form of government respectful of free association, free contracts, free speech and free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage.

Read the rest here.

Volokh on Coeur d'Alene Ordinance: "Inconsistent with the Free Speech Clause and the Idaho RFRA"

UCLA Law Professor and Washington Post blogger Eugene Volokh has posted an analysis of the controversy surrounding the Hitching Post Wedding Chapel in Coeur d'Alene, Idaho.

If you haven't heard about the outrageous case, click here for more information.

The basic situation is this, as explained by Alliance Defending Freedom, one of whose allied attorneys will be representing the couple that runs the chapel:

City officials told Donald Knapp that he and his wife Evelyn, both ordained ministers who run Hitching Post Wedding Chapel, are required to perform such ceremonies or face months in jail and/or thousands of dollars in fines. The city claims its “non-discrimination” ordinance requires the Knapps to perform same-sex wedding ceremonies now that the courts have overridden Idaho’s voter-approved constitutional amendment that affirmed marriage as the union of a man and a woman.

Silenced

As ADF Senior Legal Counsel Jeremy Tedesco notes, "Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here – and it’s happened this quickly."

Volokh, in his piece, seems to agree with ADF that "he city is on seriously flawed legal ground." He writes:

The First Amendment protects the right to speak the words in a wedding ceremony — words that have deep meaning to many officiants as well as to the parties — and the right to refrain from speaking the words. A system which secures the right to spread religious and moral messages inherent in the wedding vows must also guarantee the right not to convey those messages (including the message of approval of the wedding inherent in the act of officiating at it) in contexts that the officiant thinks unholy and immoral rather than sacred and right.

187643976We hope and pray that the Knapps are successful in their lawsuit. But the fact that such a lawsuit is needed at all is a sobering reminder of why we must continue to fight to roll back the damaging and unconstitutional imposition of same-sex 'marriage' that has been forced on so many States' citizens by ideologically-driven and unconscionable judges playing to a powerful special interest group.

More than the definition of marriage is at stake: the fundamental contours of our democratic republic, such as the right to self-determination and the rights of religion, speech, and assembly imbricated in the First Amendment, are also at risk of being radically redefined.

"Putting to Rest a Bad Argument"

Sherif Girgis, one of the co-authors of What is Marriage? Man and Woman: A Defense, opines at Public Discourse about a "bad argument" that needs to be put to rest - namely, the argument that "laws defining marriage as a male-female union should be treated as forms of sex discrimination".

Girgis writes:

126982681The Supreme Court closely scrutinizes policies involving racial, sexual, and other "suspect" classifications. But unlike almost every other classification imaginable, marriage laws use a criterion necessarily linked to an inherently good social purpose that we didn't just invent. This criterion isn't truly suspect and shouldn't get heightened scrutiny.

[...]

The primary question regarding the definition of marriage is not whether any particular class of individuals (gay, straight, male, female) has a special link to the common good, but whether certain couples do. And it shifts the burden of proof onto those who would find no such link.

Read Girgis's whole outstanding essay today.

"This Isn't How the Constitution Works"

In The Daily Signal, Ryan Anderson looks at the latest "evolution" on the issue of same-sex 'marriage' undergone by President Obama, and explains why with recent waves of political 'evolutions' and activist judicial rulings, "we’re not only redefining marriage, we’re redefining our Constitution." He writes:

Constitution“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” Obama told the New Yorker.

This is a case study in how liberals “evolve” on policy. First they embrace a policy change. If they can’t convince a majority of Americans to vote for their preferred policy, they discover that the Constitution requires their preferred policy. So, according to the Obama of today, the Obama of early 2012 held an unconstitutional view of marriage. Or, perhaps, it wasn’t unconstitutional back then but it is now.

But this isn't how the Constitution works.

[...]  Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution [emphasis added].

Read the rest here.

Christian Bakers Face Increasing Fines for Standing by Beliefs on Marriage

You may remember the story of Aaron and Melissa Klein, the Christian bakery owners in Oregon who declined to make a wedding cake for a same-sex couple last year.  Not only have they been forced to close their successful family business, but they are now facing hundreds of thousands of dollars in fines. The Kleins ascertain that the $150,000 fine would be enough to completely bankrupt the couple and their 5 children.

The penalty hit the couple after they were found “guilty” of violating the same-sex couple’s civil rights, but what about their own civil rights? During an interview with the The Daily Signal, Aaron Klein said that he believed that he was “well within” his legal rights to decide not to take the couple’s business, citing his belief that marriage can only be between a man and a woman.

In an excerpt from ChristianNews, Klein recounts the interaction that led to this heavy fine being levied on him:

Melissa Klein“My first question was what’s the wedding date,” Klein told television station KTW in Portland. “My next question was [the] bride and groom’s name. … The girl giggled a little bit and said, ‘It’s two brides.’”

He stated that he then informed the women that the bakery does not make cakes for homosexual events.

“I apologized for wasting their time and said that unfortunately, we do not do same-sex marriages,” Klein explained.
The women then left Sweet Cakes upset about the incident, and later, one of them filed a complaint with the state.

But Klein states that he regularly serves homosexuals. He believes that there is a difference between serving homosexuals in general, and having to personally facilitate same-sex ceremonies, which is an act of participation.”

“I have customers come in almost on a weekly basis that are homosexual,” he said. “They can buy my stuff. I sell stuff. I talk with them. That’s fine. … This was not the first time we’ve served these girls.”

“We were being asked to participate in something that we could not participate in,” Klein’s wife, Melissa, noted.

In January, the Oregon Bureau of Labor and Industries (BOLI) announced that it had concluded that the Klein’s broke the law when they declined to make the cake.”

The same-sex couple in question subsequently filed a civil rights complaint against the couple, ignoring the fact that the Kleins had filled other orders for the woman who had requested the “wedding” cake. Other homosexual activists also reacted with bitterness, threatening emails, harassment of their vendors, as well as ransacking the Klein’s bakery truck.

But when the Kleins appeared at the Value Voters Summit earlier this month, they were anything but bitter. Melissa Klein even broke down in tears when she described how special the process of making wedding cake is to her:

“For me personally, when I would sit down with [a customer], I just would want to know everything about her wedding,” she tearfully stated ... about the intimate involvement she would have in the matter if she accepted the order. “I’d want to know about the flowers, her dress, the centerpieces, her colors, the way her hair is going to be. I would even want to talk about ‘where are you going on your honeymoon?'”

The couple posted the following message on Facebook:

“Our culture has accepted 2 huge lies. The first is that if you disagree with someone’s lifestyle, you must fear or hate them. Second is that to love someone means that you must agree with everything they believe or do. Both are nonsense. You don’t have to compromise convictions to be compassionate.

Sweet Cakes Facebook Message

It is tragic to see our government employing discrimination in the name of “anti-discrimination.”

Aaron and Melissa are true champions of the freedom of religion, and are an inspiring example of how in our morally unstable country, we're often faced with the choice to do either what is right or what is easy. Bravo to the Kleins for courageously defending marriage as the union between one man and woman.

Senator Cruz: "This is Judicial Activism at its Worst."

Today Senator Ted Cruz (R-Texas) released a strongly worded statement following the news of the Supreme Court's decision to deny requests from five States to review lower court decisions striking down their marriage definitions.

The statement reads, in part:

Broken Legal SystemThe Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible. By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.

This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.

[...]

Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.

Read the entire thing here at the Senator's website.

We thank Senator Cruz for his strong leadership on this issue, and we hope that he and his colleagues in Congress will continue to work to right the wrong done by activists judges and by the Supreme Court's misguided choice to ignore the issue.0

Ryan Anderson: "This is an unfortunate setback for sound Constitutional self-government"

Ryan T. Anderson at The Daily Signal comments on today's move by the Supreme Court to decline hearing appeals to cases overturning the marriage laws in several states.

He writes:

Ryan AndersonToday the U.S. Supreme Court declined to review appeals from Utah, Oklahoma, Virginia, Indiana and Wisconsin on the definition of marriage. This means that lower court rulings that struck down state marriage laws will now go into effect, forcing the redefinition of marriage in these states, and potentially in other states in the 4th, 7th, and 10th circuits.

This is an unfortunate setback for sound Constitutional self-government and a setback for a healthy marriage culture.

The truth of the matter is that the marriage laws in these five states—as in many states across our nation—are good laws that reflect the truth about marriage. Frequently they were passed with overwhelming democratic support. The Supreme Court should have reviewed these cases and should have upheld the authority of citizens and their elected representatives to make good marriage policy. Instead, the Supreme Court left standing bad rulings from lower federal courts that usurped authority from the people by striking down good laws.

Ryan ends with a call to action which we all must hear, and heed!

Declining to review these cases does not speak one way or the other to the merits of the cases. But it does leave in place bad rulings from lower courts—and it will make it harder for courts to do the right thing in the future.

Nevertheless, as citizens, we must rally in support of our constitutional authority to pass laws making marriage policy. We must insist that law and culture promote the truth about marriage [emphasis added].

[SOURCE].

NOM Keeping Up Fight for the People of Oregon

Oregon State CapitolOregonians have been so far shamefully denied their fundamental rights and role as citizens in a self-determinative democracy by a system of judicial tyranny run amok, but NOM is continuing our fight there to get the people of Oregon their day in court and ensure that they values are represented in the matter of how marriage is defined.

OregonLive reports:

Despite a string of legal defeats, the National Organization for Marriage is continuing its battle against the May 19 federal court decision overturning Oregon's ban on same-sex marriage.

Two weeks after a three-judge panel of the Ninth Circuit Court of Appeals rejected the group's attempt to intervene in the case, the National Organization for Marriage on Wednesday asked the full Ninth Circuit Court to reconsider the decision.

You can read the rest of the article here.

ICYMI: Slovakia Amends Constitution to Protect Marriage

SlovakiaThe Slovakia National Council voted June 4 to define marriage as the unique bond between one man and one woman in its Constitution. The amendment states, "it will be impossible for the rights and duties associated with marriage to be conferred in any way other than a legally recognised union between a man and a woman."

One hundred and two lawmakers supported the marriage amendment and 18 voted against it.

This should put to rest some of the silly claims that we've lost the marriage fight in the United States and abroad.  Slovakia's newest Constitutional amendment is evidence of the support that marriage enjoys.

Croatian voters similarly protected the definition of marriage back in 2013.