Judge Enslen pointed out, "Despite the June 26, 2015, ruling by the Supreme Court of the United States in
Obergefell v. Hodges, the issuance of same-sex marriage licenses in Alabama... remains illegal and unconstitutional in the State of Alabama." "Born solely from a strained interpretation of the U.S. Constitution, the new same-sex marriage license is a child of the federal government, not the State of Alabama." Judge Enslen argued that Alabama could constitutionally recognize same-sex marriages from states whose legislatures had recognized such purported unions, or a license created under the authority of the United States by Congress, but there is no constitutional provision forcing Alabama to act and issue same-sex licenses, merely because the five-justice majority in Obergefell issued its opinion.
Judge Enslen adds his voice to that of Judge Nick Williams. Last month Judge Williams filed a
motion and
memo to the Alabama Supreme Court, arguing "the Obergefell decision is wholly lacking in lawful Supreme Court authority," because "the United States Constitution defines the powers of the federal government, and gives no branch of the federal government power to redefine marriage." "The Fourteenth Amendment never withdrew from the various states the authority to maintain Natural Marriage as an exclusively monogamous heterosexual institution," Judge Williams argued.
Citing the example of Abraham Lincoln and the Wisconsin Supreme Court, both of whom ignored the U.S. Supreme Court on the issue of slavery, Judge Williams called for the Alabama Supreme Court to "recognize the historic moment to return balance to our system of federalism and restrain lawlessness," by doing its duty in response to the "judicial power grab of five lawyers" - "a naked judicial claim" "fundamentally at odds with our system of government" - and recognizing that it is "not bound by decisions of the United States Supreme Court where it acts outside its authority and legitimacy."
"Conscientious objection based on deeply held religious beliefs is an unalienable human right that must be protected," said Mat Staver, Founder and Chairman of Liberty Counsel.
Liberty Counsel does not represent Judges Enslen or Williams, but represents the Alabama Policy Institute, the Alabama Citizens Action Program, and their Alabama members in related proceedings before the Alabama Supreme Court.
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Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.
