“Same-sex” Marriage Case Isn’t Over


Foundation for Moral Law, a Montgomery-based legal
foundation that defends the
right to acknowledge God and the duty to
interpret the Constitution as written,
says a local case involving same-sex
marriage is not over, because the issue of
retroactivity has not yet been

In 2011 Paul Hard and David Fancher
went through a same-sex marriage
ceremony in Massachusetts and returned to live
in Alabama. On 1 August 2011
David Fancher was killed in an accident involving
a UPS truck. UPS paid a
settlement to the Fancher estate, but Hard was not
allowed to collect a
spousal share of the estate because, according to the
executor, Alabama law
did not recognize same-sex marriage and Hard was
therefore not a spouse. On
Hard’s behalf the Southern Poverty Law Center filed
suit against the State
of Alabama to have Alabama’s Sanctity of Marriage
Amendment declared

But a further complication arose.
Patricia Fancher, the mother of David
Fancher, retained the Foundation for
Moral Law to intervene in the case.
Although she had a loving relationship with
her son, she said she did not
want his name used to advance the cause of
same-sex marriage. In October
2014 Hard, Fancher, and the State of Alabama
each filed a motion for summary
judgment, which Judge Watkins put on hold until
the U.S. Supreme Court
decides the issue.

After the Supreme Court struck
down same-sex marriage laws, Hard asked the
District Court to rule on his
motion for summary judgment. But in a motion
filed yesterday, the Foundation
raised the question of whether the Supreme
Court’s same-sex marriage decision
is retroactive as to past relationships,
especially as to those which ended
years, not months ago.

Foundation Executive Director Matthew Kidd stated,
“The issue is not whether
someone may marry a member of the same sex today.
The issue is whether a
court may or should look back four years and recognize a
marriage that was
not legally valid. Of course, if the marriage is recognized
it will only
cause further economic harm to a family which has already lost one
its own.
And if recognized, this man will be awarded an entire spousal share of
wrongful death proceeds which would be unjust even under
circumstances considering the two were ‘married’ less than 3 months.”

Foundation President Kayla Moore added, “It is outrageous that
unelected lawyers on the U.S. Supreme Court think they can invalidate
constitutional amendment adopted by 81% of Alabama voters in 2006, on
flimsy ground that violates a so-called ‘right’ found nowhere in
Constitution. It adds insult to injury to contend that this
‘right’ should be applied retroactively to matters that should have
settled long ago.”



I was wrong.

Perhaps I was naïve, but I really believed Justice Kennedy when he wrote in the Windsor decision, “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” I thought he would say the states have a right to determine whether same-sex marriage will be legal or illegal within their respective jurisdictions.

But instead, the Court used an illegitimate means to reach an unconstitutional result that allows invalid unions for the perpetration of immoral conduct.

Illegitimate means? Two Justices participated in this ruling who by all reasonable standards should have recused. Both Justice Ginsburg and Justice Kagan performed same-sex weddings, and Justice Ginsburg even performed a same-sex wedding after the oral arguments took place and made statements to the effect that same-sex marriage is a constitutional right. She clearly had her mind made up and could not consider this case objectively, and therefore she should have recused. In my 45-year legal career I’ve never seen a case in which the facts more clearly called for recusal, and yet Justices Kagan and Ginsburg refused to recuse. If they had recused, the vote would have been 4-3 to uphold the Sixth Circuit and the same-sex marriage laws of Michigan, Ohio, Kentucky, and Tennessee. If only Justice Ginsburg had recused, the vote would have been 4-4 which would have affirmed the Sixth Circuit decision. Justice Scalia said in dissent, fn 22, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. Because of these illegitimate means for putting together a five-vote majority, the decision deserves neither respect nor recognition.

Unconstitutional result? Nothing in the Constitution either explicitly or implicitly recognizes a right to same-sex marriage. The key language of Justice Kennedy’s opinion says “The generations that wrote and ratified the Bill of rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.” That in itself would be dangerous, but as Justice Scalia noted in dissent, “The ‘we,’ needless to say, is the nine of us” — a majority vote of nine lawyers, unelected and holding office virtually for life. The effect of Justice Kennedy’s ruling is that federal judges are no longer bound by the plain wording of the Constitution as understood and intended by its Framers, but rather are free to make the words of the Constitution mean anything they want them to mean. Thomas Jefferson wrote in the Kentucky Resolves, “In questions of power, then, let no more be said of confidence in man, but bind him down from mischief with the chains of the Constitution.” The purpose of the Constitution was to define and restrain government power, not to allow federal judges to roam at large in the trackless fields of their own imaginations.

Invalid unions? From the beginning of time, the laws of nature and of nature’s God have been very clear: marriage is between a man and one woman. Genesis 1-2 tells us that God established marriage between a man and a woman, and the laws and customs of nearly every society past and present have recognized only male/female unions as marriages. I question whether any agency of human government has the authority to re-define an institution established by God. But at the very least, such social upheaval should be by the people through their elected representatives, not by a 5-4 vote of an unelected Court.

Immoral conduct? The Bible forbids homosexual conduct, as have the laws of nearly all societies throughout history. God’s moral law does not change with time and place, with opinion polls, or even with court decisions. Isaiah 5:20: “Woe unto them that call evil good, and good evil.”

Because the Obergefell decision is an illegitimate means of reaching an unconstitutional result to establish invalid unions for the perpetration of immoral conduct, this decision should not be accorded the force and effect of law. Other branches and levels of government should interpose on behalf of the people they represent, to preserve for their people the right and power to define marriage in accord with the laws of nature and of nature’s God. This should be done by legal means if possible, but if that is not possible, “We must obey God rather than men.” (Acts 5:29).

John Eidsmoe, Senior Counsel
Foundation for Moral Law
29 June 2015