Staver Demands That the Alabama Supreme Court Ignore Marriage Ruling

The Alabama Supreme Court is still considering whether or not to spark a constitutional crisis by ordering state officials to ignore the Supreme Court’s ruling requiring states to recognize and legalize same-sex marriages. Mat Staver, the dumbest lawyer in America not named Larry Klayman, has filed a brief demanding that they do exactly that.

Asked by the Alabama Supreme Court for advice on what to do next on same-sex marriage, two conservative advocacy groups in the state have urged both direct and indirect resistance to the Supreme Court’s ruling mandating a constitutional right for gays and lesbians to wed. The state court, the groups argued, has the constitutional power to refuse even to accept what the Justices have done, and has a constitutional duty to insulate state officials from legal risk if they do not obey the decision based on a religious objection.

The thirty-three-page brief was filed on Monday by the Alabama Policy Institution, a think tank, and by the Alabama Citizens Action Program, an inter-denominational church support group, which earlier had persuaded the state’s highest court to block all of the state’s sixty-eight probate judges from issuing any marriage licenses to same-sex couples, even though all of them were under an order to do so by a federal judge in Mobile. Depending on what the state court now does, it could set up a new federal-state collision that potentially could go to the Supreme Court. Lower federal courts could take direct action against state trial court judges, but only the Supreme Court could review a decision by the Alabama Supreme Court on a federal constitutional issue.

But the two organization leading the challenge before the state court used a combination of arguments — points made by the dissenting Justices in the Obergefell decision on the errors they found in the majority ruling, the protests of the Rev. Martin Luther King, Jr., against “unjust laws,” and a series of Wisconsin Supreme Court rulings defying the Supreme Court in a mid-nineteenth-century runaway slave case — to persuade the state judges to treat the Obergefell ruling as not binding on them.

Aside from reciting at length from the Obergefell dissenters, the brief was focused heavily on the back-and-forth decisions of Wisconsin’s highest state court and the Supreme Court, over the power of a state court to order the release of an abolitionist, Sherman M. Booth, from federal custody on charges related to his role in arranging the freedom of a runway slave from Missouri. The slave was never recaptured, but the Supreme Court, in the unanimous decision in Ableman v. Booth, ruled that the state court had no power to interfere with the prosecution of Booth.

The Alabama groups’ brief noted that the state supreme court refused to accept the Supreme Court’s decision: “In the nearly 157 years since the U.S. Supreme Court’s purported reversal [of two state court rulings], the Wisconsin Supreme Court has never filed or accepted the U.S. Supreme Court’s mandates.” What the state court did, the brief asserted, was done “in fidelity to the U.S. Constitution.”

Yes, they had to go back to 1854 to find a case in which a state Supreme Court defied the U.S. Supreme Court and it was in a case involving runaway slaves, which has nothing at all to do with the current situation. There is, of course, a far more obvious and accurate comparison involving a state refusing to follow a federal court order that required them to recognize someone’s equal rights: George Wallace refusing to follow the court’s desegregation orders, using virtually identical arguments to the ones Staver uses now. But they don’t want to make that accurate comparison, for obvious reasons, so they had to go back another century to find a totally different case to justify their position.

By the way, the Wallace situation did not end well for the state of Alabama. And it will not end well for them if they attempt yet again to defy the Supreme Court.

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What Are Your Thoughts?leave a comment
  • Jared James

    Warning signs you may be about to do something direly stupid: you deliberately seek out advice from Liberty Counsel, the Thomas More Law Center, or the ACLJ.

    Knows the signs, people.

  • Jared James

    Warning signs you may be about to do something direly stupid: you deliberately seek out advice from Liberty Counsel, the Thomas More Law Center, or the ACLJ.

    Knows the signs, people.

  • D. C. Sessions

    Doesn’t 1854 predate the 14th Amendment?

  • D. C. Sessions

    Doesn’t 1854 predate the 14th Amendment?

  • Al Dente

    Not surprisingly, the SCOTUS decision in Ableman v. Booth, 62 U.S. 506 (1859) said that the Wisconsin Supreme Court’s decision did not supersede decisions of federal courts. The Supreme Court held that under the Constitution, the federal courts have the final power to decide cases arising under the Constitution and federal statutes, and that the States do not have the power to overturn those decisions. Thus, Wisconsin did not have the authority to nullify federal judgments or statutes.

    Booth was arrested and held in the US Customs House in Milwaukee. He was broken out by civilian supporters but was later rearrested and held in a federal prison until President Buchanan, as one of his last acts in office, remitted Booth’s fines (he was being held for non-payment of the fines) which freed him.

  • Al Dente

    Not surprisingly, the SCOTUS decision in Ableman v. Booth, 62 U.S. 506 (1859) said that the Wisconsin Supreme Court’s decision did not supersede decisions of federal courts. The Supreme Court held that under the Constitution, the federal courts have the final power to decide cases arising under the Constitution and federal statutes, and that the States do not have the power to overturn those decisions. Thus, Wisconsin did not have the authority to nullify federal judgments or statutes.

    Booth was arrested and held in the US Customs House in Milwaukee. He was broken out by civilian supporters but was later rearrested and held in a federal prison until President Buchanan, as one of his last acts in office, remitted Booth’s fines (he was being held for non-payment of the fines) which freed him.

  • llewelly

    I see it as an attempt to associate lgbt rights advocates with slavers.

    As a legal tactic, I think it is doomed to waste a huge amount of time and money.

    But as a fundraising tactic, I am afraid it will work.

    The state will come out of this with less money, and the conservative bigot organizations with more money.

  • llewelly

    I see it as an attempt to associate lgbt rights advocates with slavers.

    As a legal tactic, I think it is doomed to waste a huge amount of time and money.

    But as a fundraising tactic, I am afraid it will work.

    The state will come out of this with less money, and the conservative bigot organizations with more money.

  • kantalope

    As if we needed more reasons to point and laugh at Alabama.

  • kantalope

    As if we needed more reasons to point and laugh at Alabama.

  • Pierce R. Butler

    Asked by the Alabama Supreme Court for advice on what to do next …

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body (except perhaps the national supreme court)? This might make sense if they needed something clarified on non-legal – e.g., medical – questions, but didn’t they just admit advertise their own incompetence here?

  • Pierce R. Butler

    Asked by the Alabama Supreme Court for advice on what to do next …

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body (except perhaps the national supreme court)? This might make sense if they needed something clarified on non-legal – e.g., medical – questions, but didn’t they just admit advertise their own incompetence here?

  • colnago80

    Re Pierce R. Butler @ #6

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body (except perhaps the national supreme court)?

    Obviously for the purpose of sharing any blame if their decisions head south.

  • colnago80

    Re Pierce R. Butler @ #6

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body (except perhaps the national supreme court)?

    Obviously for the purpose of sharing any blame if their decisions head south.

  • whheydt

    Re: colnago80 @ #7…

    Nice turn of phrase. If the decision “heads south” (from Alabama), one must only ask…How long can it tread water?

  • whheydt

    Re: colnago80 @ #7…

    Nice turn of phrase. If the decision “heads south” (from Alabama), one must only ask…How long can it tread water?

  • dingojack

    In this case: this far south.

    😉 Dingo

    ———

    “‘Cause it was Fiesta, and we were so gay…” (Don’t tell the Donster)

  • dingojack

    In this case: this far south.

    😉 Dingo

    ———

    “‘Cause it was Fiesta, and we were so gay…” (Don’t tell the Donster)

  • Jeremy Shaffer

    Yes, they had to go back to 1854 to find a case in which a state Supreme Court defied the U.S. Supreme Court and it was in a case involving runaway slaves, which has nothing at all to do with the current situation.

    Reaching embarrassingly far into the past before finding something brag-worthy (and, even then, just barely) is becoming common among Republicans. It was bad enough when Rand Paul tried to school black students of one college on MLK’s political affiliation- to a resounding and war warranted “No shit, Sherlock!”. Hell, judging by his opt-repeated claims, even our most recent troll didn’t seem to grasp the timeline had advanced past the late 1960’s.

    On my FB wall a few months ago all the (sadly many) conservative members of my family were sharing some info-graphic supposedly providing a comprehensive list of all the good Republicans have done for the U.S. like crazy. It was always without comment but even so you could hear the chuckled “checkmate, liberals!” and premature celebrations the argument had finally been won. I’m not sure where they drudged it up but they didn’t like it when I pointed out that a) it only listed 3 items and b) the most recent one was the passage of the 15th Amendment, which was 145 years ago in 1870 (IIRC). In fact, all three had taken place in just over a single decade in the later part of the 19th century and they, living in the early 21st century, seriously thought they were making a valid point.

  • Jeremy Shaffer

    Yes, they had to go back to 1854 to find a case in which a state Supreme Court defied the U.S. Supreme Court and it was in a case involving runaway slaves, which has nothing at all to do with the current situation.

    Reaching embarrassingly far into the past before finding something brag-worthy (and, even then, just barely) is becoming common among Republicans. It was bad enough when Rand Paul tried to school black students of one college on MLK’s political affiliation- to a resounding and war warranted “No shit, Sherlock!”. Hell, judging by his opt-repeated claims, even our most recent troll didn’t seem to grasp the timeline had advanced past the late 1960’s.

    On my FB wall a few months ago all the (sadly many) conservative members of my family were sharing some info-graphic supposedly providing a comprehensive list of all the good Republicans have done for the U.S. like crazy. It was always without comment but even so you could hear the chuckled “checkmate, liberals!” and premature celebrations the argument had finally been won. I’m not sure where they drudged it up but they didn’t like it when I pointed out that a) it only listed 3 items and b) the most recent one was the passage of the 15th Amendment, which was 145 years ago in 1870 (IIRC). In fact, all three had taken place in just over a single decade in the later part of the 19th century and they, living in the early 21st century, seriously thought they were making a valid point.

  • John Pieret

    Pierce R. Butler

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body

    Actually these groups were parties to the original action that resulted in the order to the probate judges not to issue SSM licenses. It is more than arguable that they should not have been allowed to inject themselves into the issue but, having allowed them to do so, it was proper to ask them “what now?” after Obergefell.

  • John Pieret

    Pierce R. Butler

    Why the hell should a state supreme court, supposedly the authoritative voice on legal issues, formally seek assistance on legal issues from any outside body

    Actually these groups were parties to the original action that resulted in the order to the probate judges not to issue SSM licenses. It is more than arguable that they should not have been allowed to inject themselves into the issue but, having allowed them to do so, it was proper to ask them “what now?” after Obergefell.

  • Nick Gotts

    Jeremy Shaffer@10,

    Michael Egnor’s a member of your family???!! How do you cope with something like that?

  • Nick Gotts

    Jeremy Shaffer@10,

    Michael Egnor’s a member of your family???!! How do you cope with something like that?

  • sigurd jorsalfar

    I demand that all courts everywhere, and all of you, disregard higher court rulings that I disagree with. If any of you end up being fined or having to go to jail over it, hey, that’s a price I’m willing to pay.

  • sigurd jorsalfar

    I demand that all courts everywhere, and all of you, disregard higher court rulings that I disagree with. If any of you end up being fined or having to go to jail over it, hey, that’s a price I’m willing to pay.

  • abb3w

    One potential upside of this is that there might eventually be a case where the SCOTUS explicitly rules that state apex courts are subordinate to all federal courts regarding questions of the Federal Constitution, thereby putting an end to this particular bit of cargo cult law.

    (Though that phrase may overstate matters; it’s possible that the SCOTUS would agree with the state on this, on some “original jurisdiction” argument.)

  • abb3w

    One potential upside of this is that there might eventually be a case where the SCOTUS explicitly rules that state apex courts are subordinate to all federal courts regarding questions of the Federal Constitution, thereby putting an end to this particular bit of cargo cult law.

    (Though that phrase may overstate matters; it’s possible that the SCOTUS would agree with the state on this, on some “original jurisdiction” argument.)