Marcy 14k 2015

Alabama stands as the only state to reject a federal court ruling on its definition of marriage, but an advocate of traditional marriage says what’s happening in that state ought to give the Supreme Court pause before issuing any sweeping rulings on the issue.

In 2013, the high court ruled the federal government cannot deny benefits to same-sex couple who are legally married in the states where they live in the case of Windsor v. United States. Federal judges around the country have used that decision to declare traditional marriage amendments and laws in many states to be unconstitutional. No state refused to comply until Alabama’s supreme court ordered probate judges not to issue marriage licenses to same-sex couples.

Family Research Council senior fellow Peter Sprigg said the actions ought to convince the Supreme Court to tread lightly when it considers whether states have the right to define marriage only as the union of one man and one woman.

“I would hope that that lesson would be one more thing that would chasten the Supreme Court a bit and make them reluctant to overturn not just the laws but the constitutions of a majority of U.S. states on the issue of marriage,” said Sprigg, a defender of traditional marriage.

With Alabama as precedent, Sprigg said the Supreme Court may be in for a big surprise if it legalizes same-sex marriage nationwide and expects states to fall in line.

“I think what is happening in Alabama shows that the federal courts, including the U.S. Supreme Court, should not necessarily operate on the expectation that everyone on the state level will simply roll over and play dead because a federal court expresses its opinion on this issue,” Sprigg said.

“There are limits to how much the courts can impose their will simply by virtue of their prestige and so forth when they’re clearly going beyond anything found in the text of the Constitution,” he said.

Listen to the WND/Radio America interview with Peter Sprigg:

But is the Alabama Supreme Court operating within its powers or is it going rogue? Sprigg said most people assume any federal court trumps a state supreme court, but that’s not the case.

“They both have an independent authority to interpret the federal Constitution,” he said. “It is not as though because the federal district court is a federal court, that its interpretation of the U.S. Constitution is considered inherently superior to the Alabama state courts.”

Another problem for same-sex marriage supporters is how they challenged the law in Alabama. They sued the state attorney general, but Sprigg said marriage is under the purview of the judicial system.

“In Alabama, that responsibility is delegated to the probate judges,” he said. “Probate judges are not officers of the executive branch, like the attorney general. They are officers of the judicial branch, and they are under the immediate supervision of the Alabama Supreme Court.

“So the Alabama Supreme Court, based on its own interpretation of the U.S. Constitution and based on its own authority to supervise the probate judges, has ordered them not to issue marriage licenses to same-sex couples.”

The Supreme Court will hear oral arguments in Obergefell v. Hodges on April 28. The case centers not only on whether states can craft their own definitions of marriage but whether they must recognize same-sex marriage legally performed in other states.

Sprigg not only contends the Constitution is on the side of traditional marriage advocates. He said legal precedent is as well, despite the flurry of lower-court rulings in favor of same-sex marriage.

“I think people who believe that the Windsor case is going to dictate the outcome of this case are mostly people who haven’t actually read the Windsor decision,” Sprigg said. “That decision was premised on the assertion of the court that the Defense of Marriage Act constituted an unconstitutional federal interference with state definitions of marriage.”

Sprigg said while that rationale worked against traditional marriage supporters two years ago, it now helps make their case that states can define marriage as the union of a man and a woman.

“If that same principle is applied in the current case, that the federal government has an obligation to respect states’ definitions of marriage, then this time it would mean that the federal government, in this case the Supreme Court, has to respect states that have chosen to define marriage as the union of one man and one woman,” he said.

Federal judges have not cited that language in their decisions. Sprigg admitted Justice Anthony Kennedy’s majority opinion also provides some ammunition to same-sex marriage backers in this and other cases.

“Justice Kennedy’s opinion did include some rather sweeping language about the dignity and respect that should be afforded to same-sex couples who are married according to the laws of the state and the harm to their children of denying them that recognition and so forth,” he said. “That’s the language of Windsor that the other side chooses to refer to instead.”

Sprigg said there’s a simple reason why that language should not matter as much in the current case as the right of states to define marriage for themselves.

“It’s not a legal, constitutional finding. It’s more an expression of personal opinion,” he said. “I’m hopeful, and perhaps it’s naive for a conservative to be hopeful of this, but I’m still hopeful that the court will show respect for the text of the Constitution and for its own substantive prior precedents and uphold the states’ powers to define marriage.”

The vast majority of court watchers expect the June decision to legalize gay marriage in at least the four states involved in Obergefell v. Hodges, if not the entire nation. In addition to the string of court wins for same-sex marriage advocates, there are four reliable liberal justices on the court, and Justice Kennedy has consistently written opinions that advance the cause.

Sprigg said Kennedy is key, but he might not be the only hope for traditional marriage forces to find five justices to side with their arguments.

“I’m not ruling out the possibility that one of those who is considered more liberal might actually exercise some judicial restraint on this and come our way. But I think most of the money is on Justice Kennedy being the deciding vote,” said Sprigg, dismissing speculation that Chief Justice John Roberts might also side with the liberals in this case.

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