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NY Times Columnist: Alabama Chief Justice Roy Moore is Right on Same-sex Marriage Ruling

Alabama Chief Justice Roy Moore

Alabama Supreme Court Chief Justice Roy Moore, who has instructed his state’s probate judges to follow the state constitution and issue marriage licenses only to man-and-woman couples, is right about the limited reach of a federal judge’s order that sought to impose same-sex marriage in the state.

That’s according to a left-leaning writer in the left-leaning New York Times who is founder of Slate’s women’s section, DoubleX; has been a Soros media fellow; and has appeared in Oprah Winfrey’s magazine.

Her name is Emily Bazelon, a graduate of Yale Law School.

In her article, “In Sort-of-Defense of Roy Moore,” she endorses Moore’s argument that the order from U.S. District Judge Callie Granade does not bind probate judges in his state, who are the only ones to issue marriage licenses.

Moore previously pointed out that the probate judges were not part of Granade’s case, so she could not impose an order on them. The defendant in the lawsuit was the state’s attorney general, who is not allowed to issue marriage licenses.

“Roy Moore is right that on its face, Granade’s order doesn’t require state probate judges all over Alabama – who weren’t named in the case Granade heard – to issue marriage licenses,” Bazelon wrote. “Granade merely instructed Alabama’s attorney general not to enforce the state’s same-sex-marriage ban.”

Granade has admitted she could not order a probate judge to issue a license to the defendants, because he wasn’t a party to the case.

So her solution was to reopen the case after it had been concluded, add the probate judge’s name to the list of defendants and then issue an order against him.

Liberty Counsel is fighting on behalf of Alabama residents to protect their constitution, and Founder Mat Staver noted it’s another way Granade went too far.

“A single federal judge does not have jurisdiction over all probate judges,” he said, describing it as basic jurisdictional issues.

And, he said, they cannot issue orders against those who are not part of cases.

On this topic, Staver said the probate judge actually could raise an appeal should he choose, because being added as a defendant later, he was not allowed to present a defense.

“It goes to show you this judge is careless about following the Constitution,” he said. “In fact, she could care less.”

In Alabama, voters by a margin of about 4-1 defined marriage as the union of one man and one woman. But Granade ordered same-sex couples have a right to marriage, as judges in 25 other states also have done.

But Moore pushed back, telling Alabama judges to follow their own state constitution and not the federal judge. He also argued it was an infringement of state sovereignty, and there was no foundation in the U.S. Constitution giving Washington authority to redefine marriage. And, he noted, state judges have a responsibility equal to federal courts to interpret the U.S. Constitution, and the ultimate decider is the U.S. Supreme Court.

Bazelon agreed with Moore, but then said that the U.S. Supreme Court “makes law for the country.” She pointed out that district courts usually don’t “make” laws for entire states.

However, the U.S. Constitution provides that Congress writes the laws, the executive branch carries them out and the judicial branch enforces them.

“That’s the problem,” said Staver. “Federal judges don’t make the law. They are supposed to interpret the law. … They have gone far beyond their delegated authority.”

Bazelon said she understood Moore’s “frustration” and noted the confusion that has resulted from the federal judge’s order.

“If you don’t care much about process, then you probably don’t care that Moore has a point. … The objections Moore is raising are shared on the United States Supreme Court by Clarence Thomas and Antonin Scalia – and not only because the two conservatives have opposed same-sex marriage; they are fighting over a change in the definition of marriage, yes, but also over how that change is being made.”

The fact that higher courts refused to stay Granade’s order means, she wrote, “gay marriage is becoming more and more entrenched before the Supreme Court rules on it.”

“The court is creating, or allowing lower courts to create, facts on the ground that favor one side in the gay-marriage case it has agreed to hear.”

Bazelon said there no constitutional rule that requires the Supreme Court to go along with the rising number of states that have legalized same-sex marriage.

“But the momentum starts to seem inexorable. And to the extent the Supreme Court is encouraging this, it’s not really a good thing, because courts aren’t supposed to tip their hands in advance of ruling,” she said.

When the court declined to extend a stay on Granade’s order, Justice Thomas said: “In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question.”

Meanwhile, Christian evangelist Franklin Graham, who heads both the relief and development group Samaritan’s Purse and the Billy Graham Evangelistic Association, weighed in on the Alabama dispute.

His Facebook posting takes the dozens of orders from mostly federal judges across the country who have imposed same-sex marriage on populations that voted against the idea and puts them in perspective.

“No earthly court has jurisdiction over the infallible Word of God,” he said.

“I applaud Justice Moore and the many Alabama judges who are upholding the biblical definition of marriage between a man and a woman,” Graham said.

Liberty Counsel has submitted a mandamus action to the state Supreme Court, which has ordered probate judges to respond by Wednesday on the issue of whether they should be ordered not to issue same-sex “marriage” documentation.

“Although it is full of rhetoric about tolerance and equal rights, the [‘gay marriage’] agenda is anything but tolerant,” said Staver. “Christians and people of faith and values have been silenced through ‘hate speech’ laws. Now, magistrates, pastors, bakers, photographers, business owners, event planners and others are being forced against their will to celebrate and assist in something against their deeply held religious beliefs.”

The lawsuit stated: “While the federal court orders require that defendants make marriage licenses and marriage ceremonies available to same-sex couples, they do not require that every magistrate in the state be compelled to perform such ceremonies under threat of suspension, termination or even criminal prosecution. Any number of accommodations can be made for magistrates who object to issuing marriage licenses for a same-sex union.”

In Alabama, some of the judges have granted same-sex marriage licenses, others have granted the licenses but refused to perform ceremonies and some have closed their office.

The Liberty Counsel action was brought on behalf of the Alabama Citizens Action Program and the Alabama Policy Institute.

The state Supreme Court ruling on Friday said: “The respondents [the probate judges] are ordered to file answers, and, if they choose to do so, briefs, addressing issues raised by the petition, including, but not limited to, any issue relating to standing or other relating to this court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition.”

It set a deadline of 5 p.m. Wednesday.

“The only remedy to this lawlessness is mandamus relief, an order from the Alabama Supreme Court to command probate judges to perform their ministerial duty not to issue marriage licenses to same-sex couples,” Staver concluded.

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NY Times Columnist: Alabama Chief Justice Roy Moore is Right on Same-sex Marriage Ruling


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