The BLOG: Faith and Law

State Supreme Court: SCOTUS majority marriage opinion is ‘illegitimate decision’ (but still law?)

The Supreme Court of Alabama today issued a long-awaited decision in Ex Parte State of Alabama, which concerns whether Alabama probate judges are at liberty not to issue marriage licenses to same-sex couples. The court decided to dismiss all petitions and motions in the case. By dismissing (as opposed to denying the motions on the merits), the court avoids creating new precedent on the precise reach of the decision of five justices of the U.S. Supreme Court to redefine marriage in the case Obergefell v. Hodges. And justices concurring in today’s decision insist that the Obergefell decision is judicial overreach. Yet they order a judgment of dismissal, nonetheless.

Of the concurrences, Chief Justice Moore’s is likely to receive the most attention. But Justice Parker’s should be read. Obergefell, Parker opines, “is a decision not based on law, but on the bare majority’s philosophy of life.” The Obergefell majority’s assertion of the power to redefine marriage is not law but “judicial despotism.”

Justice Parker is not alone in this view. The Chief Justice of the United States, John Roberts, noted in his Obergefell dissent the precedents for the majority’s opinion in the Court’s earlier decisions in Dred Scott v. Sandford and Lochner v. New York, two decisions that are widely viewed among legal scholars as cases of judicial usurpation.

(Political scientist Matthew Franck noted the analogy to Dred Scott before the Court reached its decision in Obergefell, which drew the attention of a prominent comedian and some rather nasty temper tantrums.)

President Lincoln famously took the position that the Dred Scott decision was not law for him; the judgment in the case bound the parties to the case but the Court’s redefinition of “person” and “property” did not bind the President. In his First Inaugural Address, he argued:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Lincoln recognized that the Court’s assertion of power in Dred Scott, if left unchallenged, would result in rule by judges. And that would be the end of the rule of law.

Obergefell conclusively demonstrates that the rule of law is dead,” declaims Justice Parker in today’s opinion. I know Justice Parker. He is a student of law and a thoughtful judge. He is careful with his choice of words. The recurrence in his opinion of words such as “despotism” and “tyranny” calls to attention an important question: Where is the law in Obergefell?

I’ve noted elsewhere that the Obergefell majority grounded its decision on the long-discredited doctrine of Maynard v. Hill which, like the Dred Scott decision, ratified the sovereignty of positive lawmakers in the states to create and destroy all the rights and duties of marriage, parentage, and slavery. Those are not precedents of which the Obergefell majority should be proud, yet those are the precedents that the majority found “more instructive” than the fundamental law reflected in our nation’s history, conscience, and traditions. The foundation of Obergefell is not law; the decision rests on judicial will.

Yet it remains the case that the Supreme Court of Alabama is not the President of the United States. The Supremacy Clause does not give the U.S. Supreme Court any greater power or duty to obey the Constitution than the President has. But it does establish that laws of the United States are superior to laws of the several states.

There is an asymmetry here. The Supreme Court of Alabama today has shown far more fidelity to the rule of law than five members of the Supreme Court of the United States showed in Obergefell.

Adam J. MacLeod

Adam J. MacLeod

Adam J. MacLeod is a member of the Maine and Massachusetts (inactive) bars and an Associate Professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press) and dozens of articles in journals in the United States, United Kingdom, and Australia, many of which can be accessed at his website.