2:13-cv-00922 #65

1
IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

PAUL HARD, )
)
Plaintiff, )
)
v. )
)
ROBERT BENTLEY,in his official ) Civil Action No.:
capacity as Governor of the State of ) 2:13-CV-922-WKW-SRW
Alabama, et al., )
) Defendant Pat Fanchers
Defendants. ) Motion for Summary Judgment
)

Defendants Motion for Summary Judgment
Defendant Pat Fancher, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, moves for a summary judgment in her favor on grounds that there is no
genuine dispute of material fact and the Defendant is entitled to a judgment as a matter of
law.
In support of her motion, the Defendant joins with, incorporates, and relies on the
memorandum of law filed by Alabama Governor Robert Bentley and Alabama Attorney
General Luther Strange. Defendant Fancher, by and through her legal counsel, has also
prepared her own memorandum of law stating arguments she believes are indispensable
to this Courts consideration of this matter. Defendant Pat Fanchers memorandum of
law in support of this motion for Summary Judgment is filed contemporaneously
herewith.
Narrative Statement of Undisputed Facts
1. Pat Fancher is the Mother of the deceased, David Fancher.
Case 2:13-cv-00922-WKW-SRW Document 65 Filed 10/01/14 Page 1 of 7
2

2. David Fancher died on August 1, 2011 and a wrongful death action was brought
against certain parties by the administrator of his estate, Mr. Rick Lohr.
3. That wrongful death action has been resolved and funds from that action are now
being held in trust pending the outcome of this Courts decision in this matter.
4. Under current Alabama law Pat Fancher is classified as the next of kin and is due
to receive those funds held in trust.
5. Plaintiff Paul Hard claims he is the spouse of the deceased and has asked this
Court to strike down Alabamas laws regarding marriage and grant an injunction
preventing Pat Fancher from receiving more than half of the proceeds from the
wrongful death action brought on behalf of David Fanchers estate.

Pat Fanchers position and expressed legal interest under Current Alabama Law.

Neither the institution of marriage nor acts of homosexuality are recent
inventions. However, the notion of redefining marriage as anything other than the union
of man and woman are unprecedented in all of human history. Acts of homosexuality
have been viewed negatively by many cultures in human history and embraced by others,
but no known civilization has redefined marriage to include members of the same sex.
This concept is unique to the generation of mankind that now inhabits our world.
Ms. Pat Fancher believes that God defined, designed, and destined the family as
the basic building block of society, a society on which all systems of order are based. As
such she has strongly held personal beliefs on the issue of Gods design for marriage and
same sex marriage. Ms. Pat Fancher believes that this nations laws should reflect the
moral basis upon which the nation was founded. Furthermore, she believes that the
3

ancient roots of the common law, the pronouncements of the legal philosophers from
whom this nations Founders derived their view of law, the views of the Founders
themselves, and the views of the American people as a whole from the beginning of
American history, at least until very recently, have held that homosexual conduct is
immoral and should not be sanctioned by giving it the official state sanction of marriage.
Pat Fancher is the mother of the deceased, David Fancher. Under current
Alabama law regarding intestate succession Ms. Fancher is the next of kin and mother to
David Fancher. Plaintiff Hard requests in the Prayer for Relief of his Complaint that this
Court issue an injunction without regard to the state of Alabamas Marriage Protection
Act or the state of Alabamas Constitutional Provisions regarding the sanctity of
marriage. This requested injunction asks this Court to prevent the Executor of David
Fanchers estate from distributing the potential wrongful death proceeds to David
Fanchers mother, Pat Fancher, and give over one half of those proceeds to Paul Hard
who alleges a claim to a spousal share. This claim is contrary to Alabama state law.
1

It is Defendant Fanchers opinion that Plaintiffs requested injunction, if granted,
will violate the millennia-old institution of marriage as ordained by God. That violation
will result in an immediate and irreparable injury to Ms. Fancher. Ms. Fancher is
concerned with the defense of the Alabama state constitutional provision and state
statute. Furthermore, Ms. Fancher is deeply disturbed that the death of her son David, is

1
Under Alabamas wrongful death statute the administrator must distribute any damages
recovered pursuant to Alabamas laws of intestate succession, even if the decedent died with a will. See
Ala. Code 6-5-410(c); see also Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993) (The damages from a
wrongful death award pass as though the decedent died without a will). According to Alabama law
regarding intestate succession Ms. Fancher is the next of kin and mother to David Fancher, now deceased.
Application of Alabama Code 43-8-42 indicates Ms. Fancher is due to receive all damages awarded in the
wrongful death action pertaining to her sons death. See Ala. Code 43-8-42 the entire intestate estate if
there is no surviving spouse, passes as followsto his parent.

4

being used by Plaintiff Paul Hard to advance the cause of same sex marriage. Ms.
Fancher deeply loved her son and he loved her. They had a close and loving relationship,
even though she had deeply held moral and religious objections to homosexuality, the
gay lifestyle, and same sex marriage. Ms. Fancher submits the following arguments in
defense of her rights and consequently the rights of every Alabama citizen.
Since the issuance of the Supreme Courts opinion in United States v. Windsor
there has been a series of judicial rulings concerning same sex marriage, most (but not
all) have struck down state laws defining marriage as a union between man and woman.
Regarding the issue of same sex marriage, many judges have voided the democratic
process and taken it upon themselves to impose their will over that of the people. While
the people of Alabama do not speak for America as a whole, they have spoken,
overwhelmingly, for the portion of this great nation we have been entrusted with.
Alabamas constitutional amendment regarding the sanctity of marriage is not the express
will of the legislature, which is elected by the people, it is the direct expression of the
peoples will by referendum; in which 81% of Alabama voters expressed their support for
traditional marriage. Ripping the democratic process from the hands of Alabama citizens
for the sole purpose of judicially legislating the recently created concept of same sex
marriage would be an egregious and appalling slap in the face of our states citizenry.
Ms. Fancher and most Alabamians believe traditional marriage is the cornerstone of
family, and consequently, of all society. If our civilization redefines Gods intended
purpose and role for family, it will weaken the very foundations of our nation.

5

Conclusion and Prayer for Relief
Defendant Fancher reiterates that in support of this Motion for Summary
Judgment, the Defendant joins with, incorporates, and relies on the memorandum of law
filed by Alabama Governor Robert Bentley and Alabama Attorney General Luther
Strange as though it were fully set forth herein. Defendant Fancher also relies on her
own memorandum of law, filed herewith, stating arguments she believes are
indispensable to this Courts consideration of this matter.
Premises considered, Defendant Pat Fancher asserts that Plaintiffs claims under
the Due Process Clause and the Equal Protection Clause fail as a matter of law.
Defendant Fancher respectfully requests that this Court grant her Motion for Summary
Judgment and preserve the institution of marriage and Defendant Fanchers lawful
interest by declaring Alabamas Marriage Protection Act and the Sanctity of Marriage
Amendment constitutional. Defendant specifically requests that this Court deny Plaintiff
Hards requested injunction pertaining to all funds from the death of Defendant Fanchers
son.

Respectfully Submitted,

/s/ Gabriel J. Smith
Gabriel J. Smith (SMI337)
Foundation for Moral Law
Attorney for Pat Fancher
Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue
Montgomery, AL 36104
gabrieljoseph.smith@gmail.com

6

CERTIFICATE OF SERVICE

I hereby certify that on this day, October 1, 2014, an exact copy of the foregoing
instrument has been served (a) through the Courts e-filing system; (b) by placing a copy
of the same in the United State Mail, postage prepaid and properly addressed; and/or (c)
by personal/firm email to the following attorneys:

SOUTHERN POVERTY LAW CENTER
David C. Dinielli
Samuel E. Wolfe
Attorneys for Plaintiff
400 Washington Avenue
David.dinielli@splcenter.org
Sam.wolfe@splcenter.org

TYRONE C. MEANS, Of Counsel
Means Gills Law, LLC
60 Commerce Street, Suite 200
P.O. Box 5058
Montgomery, Alabama 36103

OFFICE OF THE ATTORNEY GENERAL
James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General
Post Office Box 300152
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Facsimile: (334) 353-8440
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
Attorneys for the State Defendants,
Governor Robert Bentley and
Attorney General Luther Strange

ADDITIONAL COUNSEL FOR GOVERNOR ROBERT BENTLEY
David B. Byrne, Jr. (ASB-0354-R69D)
Chief Legal Advisor
Office of the Governor
Alabama State Capitol
600 Dexter Avenue, Suite NB-05
Telephone: (334) 242-7120
David.Byrne@governor.alabama.gov
7


Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DIVISION

PAUL HARD )
)
Plaintiff, )
)
v. ) CASE NO. 2:13-cv-922-WKW
)
ROBERT BENTLEY, et al., )
)
Defendants. )

DEFENDANT PAT FANCHERS MEMORANDUM OF
LAW IN SUPPORT OF HER MOTION FOR SUMMARY
JUDGMENT, AND IN OPPOSITION TO THE
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT


Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue

October 1, 2014
Case 2:13-cv-00922-WKW-SRW Document 65-1 Filed 10/01/14 Page 1 of 27
i

TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
I. THE CONSTITUTIONALITY OF ALABAMAS MARRIAGE LAWS SHOULD BE
DETERMINED BY THE TEXT OF THE UNITED STATES CONSTITUTION, THE
SUPREME LAW OF THE LAND. .....................................................................................3

II. THE ALABAMA CONSTITUTION AND STATE LAWS REGARDING THE
DEFINITION OF MARRIAGE DO NOT VIOLATE THE PRIVILEGES AND
IMMUNITIES CLAUSE, THE DUE PROCESS CLAUSE, OR THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AS
INTERPRETED BY THE UNITED STATES SUPREME COURT IN LAWRENCE V.
TEXAS AND UNITED STATES V. WINDSOR. ..............................................................6

A. According to the "Laws of Nature and of Nature's God," All men are created equal
and as either male or female..7

B. Same-sex marriage was inconceivable in Anglo-American common law...12

III. BECAUSE OF THIS HISTORY, THE JUDICIARY SHOULD EXERCISE
RESTRAINT AND NOT MAKE SAME-SEX MARRIAGE A CONSTITUTIONALLY-
MANDATED RIGHT. ......................................................................................................15

CONCLUSION ..............................................................................................................................19
ii

TABLE OF AUTHORITIES
CASES

Borman v. Pyles-Borman, No. 2014CV36, Roane County, Tennessee, August 5, 2014 ..............19

Bowers v. Hardwick, 478 U.S. 186 (1986) .....................................................................................2

District of Columbia v. Heller, 554 U.S.570, 128 S. Ct. 2783, 2788 (2008) ...................................5

Ex parte Shuttleworth, 410 So. 2d 896, 901 (Ala. 1981) (per curiam) ..........................................16

Gibbons v. Ogden, 22 U.S. 1 (1824) ............................................................................................4, 5

Graves v. OKeefe, 306 U.S. 466, 491-92 (1939) ..........................................................................20

Goodrich v. Goodrich, 44 Ala. 670, 674 (Ala. 1870) ....................................................................16

Holmes v. Jennison, 39 U.S. (14 Peters) 540 (1840) .......................................................................4

Hughes v. Hughes, 44 Ala. 698, 703 (1870) ..................................................................................16

In re Burris, 136 U.S. 586 (1890) ................................................................................................2, 6

Lake County v. Rollins, 130 U.S. 662, 670 (1889) ..........................................................................4

Lawrence v. Texas, 539 U.S. 558 (2003) ...........................................................................2, 7, 8, 15

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....................................................................4, 5

McCreary County, Ky. v. ACLU of Kentucky, 545 U.S. 844 (2005) ...............................................5

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ................................................................1

Moyler v. Moyler, 11 Ala. 620, 623 (1847) ...................................................................................16

Murphy v. Ramsey, 114 U.S. 15 (1885) ...........................................................................................6

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) .......................................2

Robicheaux v. Caldwell, Civil Action No. 13-5090 C/W, No. 14-97 and No. 14-327..................19

Smith v. Smith, 37 So. 638, 638-9 (Ala. 1904)...............................................................................16

South Carolina v. United States, 199 U.S. 437 (1905) ....................................................................5
iii

United States v. Sprague, 282 U.S. 716, 731 (1931) .......................................................................5

United States v. Windsor, 123 S. Ct. 2675 (2013) .................................................2, 6, 7, 15, 17, 19

Washington v. Glucksberg, 521 U.S. 702 (1997) ..........................................................................16

CONSTITUTIONS

U.S. Const. art. VI ....................................................................................................................2, 3, 6

OTHER AUTHORITIES

Alexander Hamilton, The Farmer Refuted, February 23, 1775 .......................................................9

Carle C. Zimmerman, Family and Civilization (New York: Harper 1947; Wilmington:
ISI Books 2007) .......................................................................................................................18

Declaration of Independence, 1776 .................................................................................................8

Defense of Marriage Act (DOMA) ...............................................................................................2, 6

Eran Shalev, American Zion: The Old Testament as a Political text from the Revolution to the
Civil War (New Haven: Yale University Press 2013) .............................................................12

Harlow Giles Unger, Noah Webster: The Life and Times of an American Patriot (John Wiley &
Sons 1998) ...............................................................................................................................15

Hebrew and the Bible in America: The First Two Centuries, Shalom Goldman, ed. (Hanover:
University Press of New England 1993) ..................................................................................12

Holy Bible, King James Version ..............................................................................................11, 12

James Iredell, Claypools American Daily Advisor, April 11, 1799 (Philadelphia); Documentary
History of the Supreme Court of the United States, 1789-1800, at 347 (Maeva Marcus, ed.,
Columbus University Press 1990) ...........................................................................................12

James Madison, Federalist No. 62. ..................................................................................................5

James. Madison, Letter to Thomas Ritchie, September 15, 1821, in 3 Letters and Other Writings
of James Madison 228, (Philip R. Fendall, ed., 1865) ...............................................................4

James Madison, Letter to Henry Lee (June 25, 1824), in Selections from the Private
Correspondence of James Madison from 1813-1836, at 52 (J.C. McGuire ed., 1853) .............4

J.D. Unwin, Sex and Culture (London: Oxford University Press 1934) .......................................17
iv

John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Grand
Rapids: Baker Book House 1987)............................................................................................12

John Eidsmoe, Historical and Theological Foundations of Law 3 vols.,
(American Vision /Tolle Lege 2012) ................................................................................. 12-14

Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding,
(San Francisco: Encounter Books 2002)..................................................................................12

Noah Websters American Dictionary of the English Language (1828) .......................................15

William Blackstone, Commentaries on the Laws of England 54, (1765) .................................. 9-13

1

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DIVISION

PAUL HARD )
)
Plaintiff, )
)
v. ) CASE NO. 2:13-cv-922-WKW
)
ROBERT BENTLEY, et al., )
)
Defendants. )

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT, AND IN OPPOSITION TO THE
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Defendant Fancher respectfully submits this Memorandum of Law in support of her
Motion for Summary Judgment and in opposition to Plaintiffs Motion for Summary Judgment.
For the reasons stated below, there is no genuine dispute of material fact and Defendants are
entitled to a judgment as a matter of law. Plaintiffs motion is therefore due to be denied and
Defendants motion is due to be granted.
___________________
INTRODUCTION
As Chief Justice John Marshall wrote for this Court in McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 407 (1819), "We must never forget, that it is a constitution we are expounding."
Across our nation numerous courts have made decisions regarding state laws defining
marriage as between a man and a woman. The decisions striking these state laws were based
upon speculative thinking and highly selective case precedents, rather than any language or
guiding principle of the United States Constitution. The Defendant urges this Court to apply the
2

first principles in this case and to embrace the plain and original text of the United States
Constitution as the supreme law of the land. U.S. Const. art. VI.
Many of the court decisions striking state laws defining marriage over the past year rest
upon a misinterpretation of the United States Supreme Courts ruling in United States v.
Windsor, 123 S. Ct. 2675 (2013). In that case, this Court struck down several provisions of the
federal Defense of Marriage Act (DOMA), declaring that "[t]he whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of the states, and not to the
laws of the United States." Windsor, 2691 (quoting In re Burris, 136 U.S. 586, 593-94). The
supreme irony of this case is that the opponents of Alabamas marriage laws are now using this
very decision (Windsor) to persuade this federal court to strike down Alabamas marriage laws
and force the State of Alabama to adopt a marriage policy favored by some federal courts.
This Court can uphold the marriage laws of Alabama without contradicting Windsor.
This Court can recognize what Justice Kennedy in Lawrence v. Texas, called choices central to
personal dignity and autonomy and the right to define ones own concept of existence, of
meaning, of the universe, and of the mystery of human life. Lawrence at 574, quoting Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992), and at the same time
recognize that this right is does not require strict or intermediate scrutiny. This Court could
conclude that there is, as Justice Blackmun said in his Bowers v. Hardwick, 478 U.S. 186
(1986), dissent, the right to be let alone, at 199, but that this general right to be let alone does
not merit strict or intermediate scrutiny except for a few narrow areas of activity. Lawrence
indeed decriminalized homosexual conduct, but decriminalizing it is a far cry from sanctioning
same-sex relationships by giving them the honored status of marriage.
3

This Court should be reluctant to give heightened scrutiny to the right of same-sex
conduct, even more so to create a right to same-sex marriage. Some believe constitutional
interpretation should reflect changing social mores. But if so, the change in social mores should
come from the citizens and work its way upward through the elected representatives of the
people at the local, state, and federal levels. Such changes should not be imposed from the top
down by the federal judiciary, especially in the absence of a clear constitutional provision.
I. THE CONSTITUTIONALITY OF ALABAMAS MARRIAGE LAWS SHOULD
BE DETERMINED BY THE TEXT OF THE UNITED STATES CONSTITUTION, THE
SUPREME LAW OF THE LAND.

Few current issues are as fraught with emotion, as well as with sincere religious and
moral conviction, as same-sex marriage. The American people, state and local governmental
entities, and state and federal courts are confused and conflicted as to what they should do and
what the Constitution allows or requires them to do.
Therefore, it is vitally important that this Court clarify the confusion and ensure that
judicial pronouncements reflect the Constitution rather than emotion or ideological positions. If
the Constitution guarantees a right to same sex marriage, the federal and state statutes must yield
to the constitutional provision unless the state shows a rational basis for prohibiting it. But, if the
Constitution does not guarantee a right to same sex marriage then the peoples selected
representatives should decide this matter with no interference from the federal judiciary.
The Constitution itself and all federal laws adopted pursuant thereto are the supreme
Law of the Land. U.S. Const. art. VI. All judges take their oaths of office to support the
Constitution itselfnot a person, office, government body, or judicial opinion. Id. The
Constitution and the solemn oath thereto should control, above all other competing powers and
influences, the decisions of federal courts.
4

As Chief Justice John Marshall observed, the very purpose of a written constitution is to
ensure that government officials, including judges, do not depart from the documents
fundamental principles. [I]t is apparent that the framers of the constitution contemplated that
instrument, as a rule of government of courts . . . . Why otherwise does it direct the judges to
take an oath to support it? Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803). James
Madison insisted that [a]s a guide in expounding and applying the provisions of the Constitution
. . . the legitimate meanings of the Instrument must be derived from the text itself. J. Madison,
Letter to Thomas Ritchie, September 15, 1821, in 3 Letters and Other Writings of James
Madison 228 (Philip R. Fendall, ed., 1865). The object of construction, applied to a
constitution, is to give effect to the intent of its framers, and of the people in adopting it. This
intent is to be found in the instrument itself. Lake County v. Rollins, 130 U.S. 662, 670 (1889).
A textual reading of the Constitution, according to Madison, requires resorting to the sense in
which the Constitution was accepted and ratified by the nation because [i]n that sense alone it
is the legitimate Constitution. J. Madison, Letter to Henry Lee (June 25, 1824), in Selections
from the Private Correspondence of James Madison from 1813-1836, at 52 (J.C. McGuire ed.,
1853).
As men whose intentions require no concealment, generally employ the words
which most directly and aptly express the ideas they intend to convey, the
enlightened patriots who framed our constitution, and the people who adopted it,
must be understood to have employed words in their natural sense, and to have
intended what they have said.

Gibbons v. Ogden, 22 U.S. 1, 188 (1824). The words of the Constitution are neither suggestive
nor superfluous: In expounding the Constitution . . . every word must have its due force, and
appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily
used, or needlessly added. Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).
5

The Supreme Court affirmed this approach in South Carolina v. United States, 199 U.S.
437, 448 (1905), declaring that The Constitution is a written instrument. As such, its meaning
does not alter. That which it meant when it was adopted, it means now. This Court reaffirmed
this approach in District of Columbia v. Heller, 554 U.S.570, 128 S. Ct. 2783, 2788 (2008):
Constitutional rights are enshrined with the scope they were understood to have when the
people adopted them. Heller, 128 S. Ct. at 2821. The meaning of the Constitution is not the
province of only the most recent or most clever judges and lawyers. We are guided by the
principle that [t]he Constitution was written to be understood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from technical meaning. United
States v. Sprague, 282 U.S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Moreover, if the Constitution as written is not a fixed legal standard, then it is no
constitution at all. By adhering to court-created tests rather than the legal text, federal judges
turn constitutional decision-making on its head, abandon their duty to decide cases agreeably to
the constitution, and instead mechanically decide cases agreeably to judicial precedent.
Marbury, 5 U.S. at 180; see also, U.S. Const. art. VI. James Madison observed in Federalist No.
62 that
[i]t will be of little avail to the people, that the laws are made by men of their own
choice, if the laws be so voluminous that they cannot be read, or so incoherent
that they cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes, that no man who knows what
the law is today, can guess what it will be tomorrow.

The Federalist No. 62 (James Madison), at 323-24 (George W. Carey & James McClellan eds.,
2001). What distinguishes the rule of law from the dictatorship of a shifting Supreme Court
majority is the absolutely indispensable requirement that judicial opinions be grounded in
consistently applied principle. McCreary County, Ky. v. ACLU of Kentucky, 545 U.S. 844, 890-
6

91 (2005) (Scalia, J., dissenting). Court rulings on this vital and controversial issue should be
decided according to the Constitution rather than according to emotion or individual ideological
preferences. The constitutional text should be the basis for the judicial analysis in this and all
other cases.
II. THE ALABAMA CONSTITUTION AND STATE LAWS REGARDING THE
DEFINITION OF MARRIAGE DO NOT VIOLATE THE PRIVILEGES AND
IMMUNITIES CLAUSE, THE DUE PROCESS CLAUSE, OR THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AS INTERPRETED
BY THE UNITED STATES SUPREME COURT IN LAWRENCE V. TEXAS AND
UNITED STATES V. WINDSOR.

The United States Supreme Court has previously held in Murphy v. Ramsey, 114 U.S. 15,
45 (1885):
Certainly no legislation can be supposed more wholesome and necessary in the
founding of a free, self-governing commonwealth, fit to take rank as one of the
co-ordinate States of the Union, than that which seeks to establish it on the basis
of the idea of the family, as consisting in and springing from the union for life of
one man and one woman in the holy state of matrimony; the sure foundation of all
that is stable and noble in our civilization; the best guaranty of that reverent
morality which is the source of all beneficent progress in social and political
improvement. (emphasis added)

Murphy, 114 U.S. at 45.
In United States v. Windsor, 133 S.Ct. 2675 (2013), the United States Supreme Court
struck down section 3 of the federal Defense of Marriage Act (DOMA), declaring that [t]he
whole subject of the domestic relations of husband and wife, parent and child, belongs to the
laws of the states, and not to the laws of the United States. Windsor, 2691 (quoting In re
Burris, 136 U.S. 586, 593-94).
The supreme irony of this case is that the opponents of Alabamas marriage laws are now
using this very decision (Windsor) to persuade the federal courts to strike down Alabamas
marriage laws and force the State of Alabama to adopt a marriage policy favored by some federal
7

courts. If Windsor is to have any status at all in its own right as a constitutional decision rather
than merely another milestone on the journey toward forcing same-sex marriage upon all fifty
states, this Court should carefully examine the portions of the decision that pertain to states
rights.
This Court can uphold the marriage laws of Alabama and other states without overruling
or modifying its decision in Windsor. This Court can do so by simply ruling that the regulation
of marriage is a matter traditionally left to the states, that the states same-sex marriage policies
require only rational-basis analysis, and that Alabama has a rational basis for its same-sex
marriage policy.
Likewise, this Court can uphold Alabamas marriage laws without violating or modifying
the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003). Although
Lawrence is commonly cited as legalizing homosexual activity, the decision is actually much
narrower than is commonly supposed. As the U.S. Supreme Court said at 578,
The present case does not involve minors. It does not involve persons who might
be injured or coerced or who are situated in relationships where consent might not
easily be refused. It does not involve public conduct or prostitution. It does not
involve whether the government must give formal recognition to any relationship
that homosexual persons seek to enter.

It would appear that the language of Windsor and Lawrence was carefully crafted to
preserve for the courts the option to stop short of a full recognition of a constitutional right to
same-sex marriage. Saying, as the U.S. Supreme Court did in Lawrence, that the state may not
prohibit private homosexual activities, is far different from saying that the state must give such
activities the official status and recognition of marriage. Saying, as the U.S. Supreme Court did
in Windsor, that Congress may not impede states that choose to legalize same-sex marriage, is
far different from saying all fifty states must adopt a uniform policy of legalized same-sex
8

marriage. And saying, as the U.S. Supreme Court did in Lawrence, that one has "the right to
define ones own concept of existence, of meaning, of the universe, and of the mystery of human
life, and concluding that this right includes the right to be left alone to do whatever one wants to
do, is far different from saying this right is entitled to the heightened protection of strict scrutiny
or intermediate scrutiny.
Before taking such a revolutionary step, this Court should consider the history and
meaning of marriage, the many state benefits associated with marriage, the unique role of
religion in marriage, and many other factors. It is one thing to take a practice that is nowhere
mentioned in the Constitution or the Fourteenth Amendment and that was strongly disapproved
at the time the Constitution was adopted and equally disapproved when the Fourteenth
Amendment was adopted, and extend to that practice constitutional protection. It is far different
to suddenly elevate that practice to the status of a preferred constitutional right and accord to it
strict or intermediate scrutiny.
The role of the Court is to expound the Constitution, not to expand the Constitution.
Before taking such a drastic and revolutionary step, this Court should consider the nature of
equal protection historically through the present.
A. According to the "Laws of Nature and of Nature's God," All men are
created equal and as either male or female.

An analysis of equal protection should start with the foundation of the American
concept of created equality. The birth certificate of the United States and the first document in
our organic law asserts the self-evident truth that all men are created equal, [and] that they are
endowed by their Creator with certain unalienable rights. Declaration of Independence (1776).
These rights were recognized by the Declaration, but they did not originate with it: The sacred
rights of mankind are not to be rummaged for, among old parchments, or musty records. They
9

are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity
itself; and can never be erased or obscured by mortal power. Alexander Hamilton, The Farmer
Refuted, February 23, 1775 (emphasis added). Such rights are natural, unalienable, and are
defined by God:
Those rights then which God and nature have established, and are therefore called
natural rights, such as are life and liberty, need not the aid of human laws to be
more effectually invested in every man than they are; neither do they receive any
additional strength when declared by the municipal laws to be inviolable. On the
contrary, no human legislature has power to abridge or destroy them, unless the
owner shall himself commit some act that amounts to a forfeiture.

1 William Blackstone, Commentaries on the Laws of England 54 (1765).
Blackstone explained further concerning the Law of Nature and the Revealed Law:
LAW OF NATURE
This will of his Maker is called the law of nature. For as God, when He created
matter, and endued it with a principle of mobility, established certain rules for the
perpetual direction of that motion; so, when he created man, and endued him with
free will to conduct himself in all parts of life, He laid down certain immutable
laws of human nature, whereby that free will is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the purport of those
laws.

Considering the Creator only a Being of infinite power, He was able
unquestionably to have prescribed whatever laws He pleased to His creature, man,
however unjust or severe. But as He is also a Being of infinite wisdom, He has
laid down only such laws as were founded in those relations of justice, that
existed in the nature of things antecedent to any positive precept. These are the
eternal, immutable laws of good and evil, to which the Creator Himself in all his
dispensations conforms; and which He has enabled human reason to discover, so
far as they are necessary for the conduct of human actions. Such, among others,
are these principles: that we should live honestly, should hurt nobody, and should
render to everyone his due; to which three general precepts Justinian has reduced
the whole doctrine of law. But if the discovery of these first principles of the law
of nature depended only upon the due exertion of right reason, and could not
otherwise be obtained than by a chain of metaphysical disquisitions, mankind
would have wanted some inducement to have quickened their inquiries, and the
greater part of the world would have rested content in mental indolence, and
ignorance its inseparable companion. As, therefore, the Creator is a Being, not
only of infinite power, and wisdom, but also of infinite goodness, He has been
pleased so to contrive the constitution and frame of humanity, that we should
10

want no other prompter than to inquire after and pursue the rule of right, but only
our own self-love, that universal principle of action. For he has so intimately
connected, so inseparably interwoven the laws of eternal justice with the
happiness of each individual, that the latter cannot be attained but by observing
the former; and, if the former be punctually obeyed, it cannot but induce the latter.
In consequence of which mutual connection of justice and human felicity, He has
not perplexed the law of nature with a multitude of abstracted rules and precepts,
referring merely to the fitness or unfitness of things, as some have vainly
surmised; but has graciously reduced the rule of obedience to this one paternal
precept, 'that man should pursue his own true and substantial happiness.' This is
the foundation of what we call ethics, or natural law. For the several articles into
which it is branched in our systems, amount to no more than demonstrating, that
his or that action tends to man's real happiness, and therefore very justly
concluding that the performance of it is a part of the law of nature; or, on the other
hand, that this or that action is destructive to man's real happiness, and therefore
that the law of nature forbids it.

This law of nature, being coeval with mankind and dictated by God Himself, is of
course superior in obligation to any other. It is binding over all the globe in all
countries, and at all times: no human laws are of any validity, if contrary to this;
and such of them as are valid derive all their force, and all their authority,
mediately or immediately, from this original. But in order to apply this to the
particular exigencies of each individual, it is still necessary to have recourse to
human reason; whose office it is to discover, as was before observed, what the
law of nature directs in every circumstance of life; by considering, what method
will tend most effectually to our own substantial happiness. And if our reason
were always, as in our first ancestor before his transgression, clear and perfect,
unruffled by passions, unclouded by prejudice, unimpaired by disease or
intemperance, the task would be pleasant and easy; we should need no other guide
but this. But every man now finds the contrary in his own experience; that his
reason is corrupt, and his understanding full of ignorance and error.

REVEALED LAW
This has given manifold occasion for the benign interposition of divine
providence; which, in compassion to the frailty, the imperfection, and the
blindness of human reason, hath been pleased, at sundry times and in diverse
manners, to discover and enforce its laws by an immediate and direct revelation.
The doctrines thus delivered we call the revealed or divine law, and they are to be
found only in the Holy Scriptures. These precepts, when revealed, are found upon
comparison to be really a part of the original law of nature, as they tend in all their
consequences to man's felicity. But we are not from thence to conclude that the
knowledge of these truths was attainable by reason, in its present corrupted state;
since we find that, until they were revealed, they were hid from the wisdom of the
ages. As then the moral precepts of this law are indeed of the same original with
those of the law of nature, so their intrinsic obligation is of equal strength and
perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity
11

than that moral system, which is framed by ethical writers, and denominated the
natural law. Because one is the law of nature, expressly declared so to be by God
Himself; the other is only what, by the assistance of human reason, we imagine to
be that law. If we could be as certain of the latter as we are of the former, both
would have an equal authority; but, till then, they can never be put in any
competition together.

Upon these two foundations, the law of nature and the law of revelation, depend
all human laws; that is to say, no human laws should be suffered to contradict
these. There are, it is true, a great number of indifferent points, in which both the
divine law and the natural leave a man at his own liberty; but which are found
necessary for the benefit of society to be restrained within certain limits. And
herein it is that human laws have their greatest force and efficacy: for, with regard
to such points as are not indifferent, human laws are only declaratory of, and act
in subordination to the former. To instance in the case of murder: this is expressly
forbidden by the divine, and demonstrably by the natural law; and from these
prohibitions arises the true unlawfulness of this crime. Those human laws that
annex a punishment to it do not at all increase its moral guilt, or add any fresh
obligation in foro conscientiae (in the court of conscience) to abstain from its
perpetration. Nay, if any human law should allow or enjoin us to commit it, we,
are bound to transgress that human law, or else we must offend both the natural
and the divine. But with regard to matters that are in themselves indifferent, and
are not commanded or forbidden by those superior laws; such, for instance, as
exporting of wool into foreign countries; here the inferior legislature has scope
and opportunity to interpose, and to make that action unlawful which before was
not so.
1

Although we are created equal, we are not created all the same, i.e., with the same
talents, skills, strength, beauty, personalities, wealth, etc. Rather, this equality speaks to our
standing before the law as equal bearers of rights. But He Who created us with such rights
defines the limits of those rights. We are told in Genesis that God created man in His own
image, in the image of God He created him; male and female He created them. . . . For this
reason a man shall leave his father and his mother, and be joined to his wife; and they shall
become one flesh. Genesis 1:27, 2:24 (King James Version).

1
1 William Blackstone, Commentaries on the Laws of England Sec. 2 (1765).

12

The law of the Old Testament established a traditional concept of marriage. (Genesis
2:18-25; Proverbs 5:18; Ecclesiastes 9:9; Matthew 19:3-9; I Corinthians 7:1-40; Ephesians 5:25 -
6:4). This same Law, summarized in the Declaration as "the laws of nature and of nature's God,"
is the only firm basis for God-given unalienable human rights and for the doctrine of equality
before the law, and is also committed to a traditional concept of marriage. The Bible has been
considered the authoritative source of morality and worldview for Western civilizations for
nearly two millennia (three millennia for the Tanakh or Old Testament), including the time
period in which the institutions of American law and government were established.
2
The
concept of being created equal cannot be properly understood without a recognition of the
laws of nature and of natures God upon which the concept of equality depends.
B. Same-sex marriage was inconceivable in Anglo-American common law.

Sir William Blackstoneof whose Commentaries on the Laws of England (1763) Justice
James Iredell said in 1799 that [F]or near 30 years [it] has been the manual of almost every
student of law in the United States
3
in his Commentaries endorsed the traditional definition of
marriage.
The colonies largely followed the Scriptures and Blackstone in their treatment of the
marriage and sexual matters. Drs. Donald Lutz and Charles Hyneman surveyed thousands of
writings by leading Americans between 1760 and 1805 -- diaries, letters, essays, treatises,
speeches, and the like -- to identify quotations and learn what sources the Framers quoted and

2
See, for example, Hebrew and the Bible in America: The First Two Centuries, Shalom Goldman, ed. (Hanover:
University Press of New England 1993); Eran Shalev, American Zion: The Old Testament as a Political text from
the Revolution to the Civil War (New Haven: Yale University Press 2013); Michael Novak, On Two Wings: Humble
Faith and Common Sense at the American Founding (San Francisco: Encounter Books 2002); John Eidsmoe,
Historical and Theological Foundations of Law 3 vols. (American Vision /Tolle Lege 2012); John Eidsmoe,
Christianity and the Constitution: The Faith of Our Founding Fathers (Grand Rapids: Baker Book House 1987).

3
U.S. Supreme Court Justice James Iredell, Claypools American Daily Advisor, April 11, 1799 (Philadelphia) 3;
Documentary History of the Supreme Court of the United States, 1789-1800, at 347 (Maeva Marcus, ed., Columbus
University Press 1990).
13

respected, and where they drew their ideas. They found that the Bible accounted for 34% of all
quotations in the Framers' writings, and the book of the Bible quoted most frequently was
Deuteronomy, the second statement of the Law. Excluding the Bible, the human authors quoted
most frequently were Baron Charles Montesquieu (8.3%) and Sir William Blackstone (7.9%).
4

A 2011 Westlaw computer search of American courts of record (state appellate courts, and all
federal courts) keying in the name "Blackstone" disclosed that thegreat commentator has been
cited in at least 20,780 cases: 6,745 cases from 1789 to 1899, 6,512 cases from 1900 to 1959,
and 7,523 cases from 1960 through 2011.
5
In the Jamestown, Virginia colony in 1611, Lord De
la Ware brought to the colony the Articles, Lawes, and Orders, Divine, Politique, and Martiall
for the Colony of Virginia; this code was based largely upon the Old Testament including the
prohibition against adultery.
6

The New England colonies mostly followed the English common law, but sometimes
they modified it to be more in accord with the Scriptures. In the year 1636 the general court
(legislature) of colonial Massachusetts established a council to draft a body of laws "agreeable to
the word of God." While awaiting the completion of this body of laws, the lower magistrates
were directed to follow such laws as were already adopted, and where no statute governed, they
were to decide cases "as near to the law of God as they can."
7
The Massachusetts Body of
Liberties, drafted by Rev. Nathaniel Ward and adopted by the general court in 1641, was based
largely upon Scripture and protected the family by providing that a wife was entitled to her

4
Donald. S. Lutz, "The Relative Influence of European writers on Late Eighteenth Century American Political
Thought," American Political Science Review 189 (1984), 189-97; Charles S. Hyneman and Donald S. Lutz,
American Political Writing During the Founding Era (Liberty Press, 1983), Vols. I & II.
5
Westlaw computer search conducted by John Eidsmoe 31 January 2011. The overwhelming majority of these
cases cite Sir William Blackstone's Commentaries, but a small proportion involve another person named Blackstone
as a party to the case.
6
Articles, Lawes, and Orders, Divine, Politique, and Martiall for the Colony of Virginia, 1611; reprinted in
Eidsmoe, Historical and Theological Foundations of Law III:1217-29.
7
Massachusetts Colonial Records, I:174; quoted by Paul Samuel Reinsch, Ph.D., L.L.B., English Common Law in
the Early American Colonies (Da Capo Press, 1898), 11.
14

husband's support (Art. 79) and punishing adultery and other offenses (Art. 94).
8
In the
following year, Connecticut adopted the Code of 1642 which declared that the Scriptures hld
forth a perfect rule for the direction of all men in all duties.
9
The general court of the New
Haven Colony (later merged with Connecticut) declared that the Scriptures "doe hold forth a
perfect rule" for governing family, church, and commonwealth.
10
When Indian tribes asked to
come within the protection of the Massachusetts colony, the Puritans commonly set as a
condition that the Indians agree to abide by the Ten Commandments.
11

Defenders of marriage who seek to review ancient and common-law texts for support of
their position do not easily find written sources stating two men or two women cannot marry
because it was, to those early writers, as unnecessary and obvious as saying that men cannot bear
children. Rather, the common law assumes the only definition of marriage is a union between
one man and one woman. In Blackstones Commentaries, Chapter 15 of Volume I (Of the
Rights of Persons) is simply titled Of Husband and Wife, in which is discussed the second
private relations of persons . . . that of marriage, which includes the reciprocal duties of husband
and wife. . . . 1 Commentaries 421 (emphasis added). Blackstone notes that some legal
disabilities prohibit a marriage as void ab initio, and not merely voidable: not that they dissolve
a contract already formed, but they render the parties incapable of forming any contract at all.
Id. at 423-4. The first of these legal disabilities is having another husband or wife living; in
which case, besides the penalties consequent upon it as a felony, the second marriage is to all
intents and purposes void: polygamy being condemned both by the law of the new testament, and

8
Massachusetts Body of Liberties, 1641; cited by Eidsmoe, Historical & Theological Foundations of Law III:1276-
78.
9
Eidsmoe, Historical and Theological Foundations of Law III:1283.
10
Id. III:1284.
11
John Winthrop, The Journal of John Winthrop 1630-1649 ed. Richard S. Dunn and Laetitia Yeandle (Harvard
University Press, 1996) 232-35.
15

the policy of all prudent states. Id. at 424 (emphasis added). In keeping with the definition of
marriage and with the moral standards of the time, a fortiori, a marriage between two men or
two women would be void ab initio at common law.
Almost 60 years after the publication of Blackstones Commentaries, Noah Websters
American Dictionary of the English Language (1828) defined marriage as follows:
MAR'RIAGE, n. [L. mas, maris.] The act of uniting a man and woman for life;
wedlock; the legal union of a man and woman for life. Marriage is a contract both
civil and religious, by which the parties engage to live together in mutual
affection and fidelity, till death shall separate them. . . .

Noah Webster, American Dictionary of the English Language (Foundation for American
Christian Educ. 2002) (1828).
12
Marriage at common law was defined as only between one man
and one woman because there was, and is, no other definition of marriage.
In light of this history, it is inappropriate for the this Court to take this newly-discovered
right to engage in same-sex activites and require the State of Alabama to not only permit it, but
also give it the honored status of marriage.
III. BECAUSE OF THIS HISTORY, THE JUDICIARY SHOULD EXERCISE
RESTRAINT AND NOT MAKE SAME-SEX MARRIAGE A CONSTITUTIONALLY-
MANDATED RIGHT.

Defendant Fancher has presented the Biblical, historical, and common law background of
marriage, not to persuade the Court that Lawrence and Windsor were erroneous and should be
overruled. Rather, Defendant Fancher, by and through her legal counsel, has presented this
background to ask this Court to consider that, because this conduct was generally illegal and
regarded as immoral, a sudden judicial decision to elevate this practice not only to a basic
privacy right but also to the preferred status of a strict or intermediate scrutiny right that the

12
Noah Webster was a close associate of many of the Convention delegates, frequently dined with some of them in
the evenings after sessions of the Convention, and at their request wrote an essay urging ratification of the
Constitution. Harlow Giles Unger, Noah Webster: The Life and Times of an American Patriot (John Wiley & Sons
1998)
16

states are required to endorse, sanction and approve by giving it the revered status of marriage,
would be an unprecedented step of judicial activism.
Alabama has traditionally held a high view of marriage. This history of marriage as a
valued institution and cornerstone of our state is expounded on by the Supreme Court of
Alabama. That Court has stated that the family unit is the basic foundation of our society, and
further recognized that there are forces at work which attempt to tear it asunder. Ex parte
Shuttleworth, 410 So. 2d 896, 901 (Ala. 1981) (per curiam). Marriage is the most important of
all the social relations, Moyler v. Moyler, 11 Ala. 620, 623 (1847), a contract between a man
and a womanfor the purpose of their mutual happiness and for the production and education of
children, Goodrich v. Goodrich, 44 Ala. 670, 674 (Ala. 1870) (internal quotation marks,
citations, and emphasis omitted), a divine institution imposing upon the parties higher moral
and religious obligations than those imposed by any mere institution or government, Hughes v.
Hughes, 44 Ala. 698, 703 (1870), and a sacred relation, Smith v. Smith, 37 So. 638, 638-9 (Ala.
1904). This Court should not prohibit the people of Alabama from holding this high view of
marriage and enshrining it in Alabama law.
The U.S. Supreme Court recently confronted a similar divisive issue: physician-assisted
suicide. In Washington v. Glucksberg, 521 U.S. 702 (1997). Chief Justice Rehnquist wrote for
the Court that for over 700 years, the Anglo-American common-law tradition has punished or
otherwise disapproved of both suicide and assisting suicide, Id. at syllabus of the Court, but that
in recent years attitudes were being re-examined. Nevertheless, the Court upheld Washingtons
ban on physician-assisted suicide, concluding at 735: Throughout the Nation, Americans are
engaged in an earnest and profound debate about the morality, legality, and practicality of
17

physician-assisted suicide. Our holding permits this debate to continue, as it should in a
democratic society.
Defendant Fancher believes this Court should do the same with same-sex marriage.
Granted, public acceptance of same sex marriage, like public acceptance of physician-assisted
suicide, has risen in recent decades. But the public is still sharply divided on whether
homosexual activity is moral or immoral, healthy or unhealthy, safe or dangerous, and experts
are similarly divided. The public and the experts are still sharply divided on whether children
fare better in heterosexual vs. homosexual homes and on whether or not same-sex marriage
would have long-term detrimental consequences for society.
If this Court makes a decision to strike down Alabamas marriage laws because of the
misinterpreted Windsor precedent, the debate will be closed before the issues are resolved.
Same-sex marriage will be the judicially-mandated policy of Alabama regardless of whatever
negative consequences may result.
Before taking that plunge, we should consider words of warning from the not-too-distant
past. Dr. J.D. Unwin (1895-1936), ethnologist and social anthropologist at Oxford University
and Cambridge University, undertook an exhaustive study of eighty primitive tribes and six
advanced civilization through 5,000 years of history. Those he studied included island people of
Melanesia and Polynesia, tribes in Africa and Central America, Paleo-Siberians, Native
Americans of the Northwest, the Plains, the Great Lakes, the South, and the Southeast, as well as
the Babylonians, the Athenians, the Romans, the Anglo-Saxons, and the modern English. In
1934 he published his findings in a 619-page book titled Sex and Culture.
13
Dr. Unwin
concluded that the most successful societies, those which advanced most rapidly and retained
their advanced state, were those which restrained sexual energy by heterosexual monogamous

13
J.D. Unwin, Sex and Culture (London: Oxford University Press 1934).
18

marriage.
14
He also noted that We must remember that no change in the sexual opportunity of
a society produces its full effect until the third generation.
15

Similarly, Dr. Carle E. Zimmerman, Professor of Sociology at Harvard University,
studied various types of family structures throughout history: the trustee family in which the
marital union is considered sacred, immortal, and absolute; the domestic family in which the
marital union is strong but retains more freedom; and the atomistic family in which marriage is
merely a contract for the parties mutual benefit. Dr. Zimmerman compared societies of the
ancient world, the medieval period, up to the modern period, and published his findings in
Family and Civilization.
16
He concluded that there is a general regression from the trustee
family to the domestic family to the atomistic family structure, and that when the atomistic
family structure becomes prevalent, social cohesion suffers.
Such words of warning by eminent scholars should not be disregarded. Time must be
given to see if their forecasts are accurate.
The full legal fall-out from the decisions of other federal courts cannot yet be measured.
On 27 August 2014 U.S. District Judge Clark Waddoups finalized an earlier ruling declaring a
portion of Utahs polygamy ban -- a ban that Congress had required Utah to include in its state
constitution as a pre-condition for statehood -- unconstitutional. It is of course too early to
determine the final outcome of this case, but if the rationale for recognizing same-sex marriage
as a constitutional right is accepted, a ban on polygamy (or other unions) may be difficult to
defend.

14
Id. 428
15
Id. 429
16
Carle C. Zimmerman, Family and Civilization (New York: Harper 1947; Wilmington: ISI Books 2007).

19

On the other hand, in the State of Tennessee Roane County Circuit Judge Russell E.
Simmons, Jr., has rejected the suggestion that Windsor requires states to recognize same-sex
marriages and has therefore refused to grant a divorce to two men who had gone through a
marriage ceremony in Iowa. See Borman v. Pyles-Borman, No. 2014CV36, Roane County,
Tennessee, August 5, 2014.
On September 3, 2014, U.S. District Court Judge Martin Feldman upheld Louisianas ban
on same-sex marriage, ruling that The State of Louisiana has a legitimate interest under a
rational basis standard of review for addressing the meaning of marriage through the democratic
process and adding,
Many states have democratically chosen to recognize same-sex marriage.
But until recent years, it had no place at all in this nations history and tradition.
Public attitude might be becoming more diverse, but any right to same-sex
marriage is not yet so entrenched as to be fundamental.

Robicheaux v. Caldwell, Civil Action No. 13-5090 C/W, No. 14-97 and No. 14-327.
17

By upholding Alabamas marriage laws this Court can allow the debate to continue
through the democratic process where it belongs, in the hands of the people. Hopefully, with
time, the best wisdom will prevail.
CONCLUSION
Marriage is more than a private act; it is a civil and religious institution that involves
child welfare, child-rearing, income tax status (individual, joint, or separate tax returns;
deductions; credits) estate and inheritance tax considerations, testamentary rights, privileged
communications (husband-wife privilege), Social Security and Medicare benefits, military
housing allowances, and a host of other matters.

17
On September 23, 2014, Louisiana State District Court Judge Edward Rubin ruled that Louisianas same-sex
marriage ban violates the Equal Protection, Due Process, and Full Faith and Credit Clauses of the U.S. Constitution.
Costanza v. Caldwell, 15th Judicial District Court Docket No. 2013-0052 D2 Parish of Lafayette. The Louisiana
Attorney General has already announced that the State of Louisiana will appeal.
20

Justice Frankfurter wisely wrote, [T]he ultimate touchstone of constitutionality is the
Constitution itself and not what we have written about it. Graves v. OKeefe, 306 U.S. 466, 491-
92 (1939) (Frankfurter, J. concurring). As in any case, the proper solution here is for this
Honorable Court to fall back to the supreme law of the land, the text of the Constitution and
recognize the right and responsibility of the people of Alabama to write their own Constitution.
For these reasons, there is no genuine dispute of material fact and Defendants are entitled
to a judgment as a matter of law. The Plaintiffs motion for summary judgment is therefore due
to be denied, and Defendants motion is due to be granted. Respectfully Submitted,

Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue

21

CERTIFICATE OF SERVICE

I hereby certify that on this day, March 20, 2014, an exact copy of the foregoing
instrument has been served (a) through the Courts e-filing system; (b) by placing a copy of the
same in the United State Mail, postage prepaid and properly addressed; and/or (c) by
personal/firm email to the following attorneys:

SOUTHERN POVERTY LAW CENTER
David C. Dinielli
Samuel E. Wolfe
Attorneys for Plaintiff
David.dinielli@splcenter.org
Sam.wolfe@splcenter.org

TYRONE C. MEANS, Of Counsel
Means Gills Law, LLC
60 Commerce Street, Suite 200
P.O. Box 5058

OFFICE OF THE ATTORNEY GENERAL
James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General
Post Office Box 300152
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Facsimile: (334) 353-8440
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
Attorneys for the State Defendants,
Governor Robert Bentley and
Attorney General Luther Strange

ADDITIONAL COUNSEL FOR GOVERNOR ROBERT BENTLEY
David B. Byrne, Jr. (ASB-0354-R69D)
Chief Legal Advisor
Office of the Governor
Alabama State Capitol
600 Dexter Avenue, Suite NB-05
Telephone: (334) 242-7120
David.Byrne@governor.alabama.gov
22


Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue

2:13-cv-00922 #65

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2:13-cv-00922 #65

Uploaded by

Copyright:

Available Formats

1

IN THE UNITED STATES DISTRICT COURT

You might also like