How can the Federal Government force the State of Alabama to accept same sex marriage?
In 1996 the Defense of Marriage Act was passed by Congress, which stated that States did not have to accept same sex marriages performed in States that allowed such. Section 3 placed into law a non-recognition of same-sex marriage for all federal purposes, which included governmental employee insurance benefits, social security survivors' benefits, bankruptcy, immigration, and the filing of joint tax returns. This also excluded same-sex spouses from the laws that protect families of federal officers, laws that consider financial aid eligibility, and Federal ethics laws, which apply to traditional spouses. It seems that some of the issues of same sex marriage had arisen involving inheritance by same sex spouses and children of “adoptive” parents in same sex marriages since only a single parent was recognized.
In 2011 the Obama administration said that they would no longer defend DOMA cases. In the 2013 case of United States v. Windsor, it was ruled by the United States Supreme Court that Section 3 was unconstitutional. The Due Process Clause of the Fifth Amendment was used to nullify Section 3 of DOMA. The Fifth Amendment reads as follows,
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor
shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
In 2006, 81% of Alabama voters voted in favor of the Alabama Sanctity of Marriage Amendment. It reads;
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special
interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and
welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties
is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have
occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be
considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a
marriage or other union replicating marriage
Alabama has been one of fourteen states that does not recognize same sex marriage. Two Mobile women who were married in California and have a son via a sperm donor had sued in Federal Court because only one parent was recognized as being a parent. U.S. District Court Judge, Callie V.S. Granade (who was supported by Alabama’s current Senators and appointed by President George W. Bush) ruled that the Alabama statutes violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
The Clause reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Justice Granade immediately issued a 14-day stay to allow Alabama time to respond but felt the stay should not be lengthy in time. Alabama Chief Justice Roy Moore has pledged to fight the Federal ruling. The Alabama Probate Judges Association has taken the position that the case only applies to the plaintiffs in the case and that the Probate Judges Association should allow only the plaintiffs to be recognized as spouses. Montgomery County Probate Judge Steven Reed has stated that he will issue marriage licenses to same sex applicants if allowed to do so.
One must realize that the substantive portion of the Due Process Clause of the 14th Amendment has been used in cases since the late 1800’s involving contracts, President Wilson’s involvement in railroad strikes, and as a basis for a right to privacy for legalizing abortion in the 1973 U.S. Supreme Court case, Roe v. Wade.
Regardless of the writer’s or readers opinion on the matter, a heavy handed Federal judiciary that overrides a vast majority of the voters of a State was not the intent of the Framers of the United States Constitution. Prior to World War I, most citizens identified themselves as citizens of their State and only after the terrible national war did citizens begin in unison to consider themselves Americans.
I am an Alabamian and I expect the Federal Judiciary to consider the will of Alabamians over their own bias.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.
"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."
Ronald A. Holtsford, Esq.
Ronald A. Holtsford, LLC
7956 Vaughn Road, Box #124
Montgomery, AL 36116
As an update, a three judge panel of 11th Circuit Federal Court of Appeals has lifted the stay as of Tuesday, 03 February 2015. Attorney General Strange continues to appeal the decision. Short of a new stay, gay marriages may be performed as early as Monday, 09 February 2015.