You really couldn't come up with this scenario in fiction. It requires reality for the truly bizarre. It is important to note that Thomas Paine left his wife, although he may not have divorced her. Benjamin Franklin was far from the constant husband. It may be said of the founding fathers that they foundarded somewhat on the sanctity of marriage.
It is also significant as you read on to note that many cultures, particularly those of the natural enemies of the west currently, have bigamist marriages culturally.
So here is the rest of the excerpts from the opinion of the state court in the ongoing battle of who should be allowed to love someone else within the bonds of marriage. It is, sadly, devoid of much of what it should discuss, which is the effect of elective divorce on all of this.
I can tell you that I'm no fan of marriage or its consequences right now. The gays in Alabama don't know how well they've got it...well that can't be right.
From the Supreme Court of Alabama (you have to love these guys, but not in a gay way)
"[M]arriage is a contract sui generis, and the rights, duties, and obligations which arise out of
it, are matters of so much importance to the wellbeing of the State, that they are regulated, not by
private contract, but by the public laws of the State, which are imperative on all, who are
domiciled within its territory." Story, supra, at § 111.
According to one observer, marriage is a "prepolitical" "natural institution" "not created by law," but nonetheless recognized and regulated by law in every culture and, properly understood, an institution that must be preserved as a public institution based on the following rationale: "The
family is the fundamental unit of society. ... [F]amilies ... produce something that governments need but, on their own, they could not possibly produce: upright, decent people who make honest law-abiding, public-spirited citizens. And marriage is the indispensable foundation of the family."
Robert P. George, Law and Moral Purpose, First Things, Jan. 2008; see also Sherif Girgis, Robert P. George & Ryan T. Anderson, What is Marriage?, 34 Harv. J.L. & Pub. Pol'y 245,
270 (2011) (discussing the bases for laws supporting "conjugal" or "traditional" marriage and noting that "[m]arriages ... are a matter of urgent public interest, as the record of almost every culture attests -– worth legally recognizing and regulating. Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for
each other. ... In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability).
Thus it is for the stability and welfare of society, for the general good of the public, that a proper understanding and preservation of the institution of marriage is critical. It is the people themselves, not the government, who must go about the business of working, playing, worshiping, and
raising children in whatever society, whatever culture, whatever community is facilitated by the framework of laws that these same people, directly and through their representatives, choose for themselves. It is they, who on a daily basis must interact with their fellow man and live out
their lives within that framework, who are the real stakeholders in that framework and in the preservation and execution of the institutions and laws that form it. There is no institution more fundamental to that framework than that of marriage as properly understood throughout history.
it, are matters of so much importance to the wellbeing of the State, that they are regulated, not by
private contract, but by the public laws of the State, which are imperative on all, who are
domiciled within its territory." Story, supra, at § 111.
According to one observer, marriage is a "prepolitical" "natural institution" "not created by law," but nonetheless recognized and regulated by law in every culture and, properly understood, an institution that must be preserved as a public institution based on the following rationale: "The
family is the fundamental unit of society. ... [F]amilies ... produce something that governments need but, on their own, they could not possibly produce: upright, decent people who make honest law-abiding, public-spirited citizens. And marriage is the indispensable foundation of the family."
Robert P. George, Law and Moral Purpose, First Things, Jan. 2008; see also Sherif Girgis, Robert P. George & Ryan T. Anderson, What is Marriage?, 34 Harv. J.L. & Pub. Pol'y 245,
270 (2011) (discussing the bases for laws supporting "conjugal" or "traditional" marriage and noting that "[m]arriages ... are a matter of urgent public interest, as the record of almost every culture attests -– worth legally recognizing and regulating. Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for
each other. ... In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability).
Thus it is for the stability and welfare of society, for the general good of the public, that a proper understanding and preservation of the institution of marriage is critical. It is the people themselves, not the government, who must go about the business of working, playing, worshiping, and
raising children in whatever society, whatever culture, whatever community is facilitated by the framework of laws that these same people, directly and through their representatives, choose for themselves. It is they, who on a daily basis must interact with their fellow man and live out
their lives within that framework, who are the real stakeholders in that framework and in the preservation and execution of the institutions and laws that form it. There is no institution more fundamental to that framework than that of marriage as properly understood throughout history.
In 1885, the United States Supreme Court expressed the axiomatic nature of marriage as follows:
"[N]o 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
union for life of one man and one woman in the holy estate 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."
Murphy v. Ramsey, 114 U.S. 15, 45 (1885). See, also, Smith v.
Smith, 141 Ala. 590, 592, 37 So. 638, 638-39 (1904),
describing marriage as "the sacred relation." Even in
decisions suggesting that marriage is simply a "civil status,"
courts have recognized "the fair point that same-sex marriage
is unknown to history and tradition." Windsor v. United
States, 699 F.3d 169, 188 (2d Cir. 2012). As the United
States Supreme Court acknowledged in United States v. Windsor,
___ U.S. ___, 133 S. Ct. 2675 (2013):
"[N]o 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
union for life of one man and one woman in the holy estate 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."
Murphy v. Ramsey, 114 U.S. 15, 45 (1885). See, also, Smith v.
Smith, 141 Ala. 590, 592, 37 So. 638, 638-39 (1904),
describing marriage as "the sacred relation." Even in
decisions suggesting that marriage is simply a "civil status,"
courts have recognized "the fair point that same-sex marriage
is unknown to history and tradition." Windsor v. United
States, 699 F.3d 169, 188 (2d Cir. 2012). As the United
States Supreme Court acknowledged in United States v. Windsor,
___ U.S. ___, 133 S. Ct. 2675 (2013):
"It seems fair to conclude that, until recent years,
many citizens had not even considered the
possibility that two persons of the same sex might
aspire to occupy the same status and dignity as that
of a man and woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought
of by most people as essential to the very
definition of that term and to its role and function
throughout the history of civilization."
___ U.S. at ___, 133 S.Ct. at 2689 (also noting that "[t]he
limitation of lawful marriage to heterosexual couples ... for
centuries had been deemed both necessary and fundamental,"
id.).
"It is beyond dispute, as the Court of Appeal
majority in this case persuasively indicated, that
there is no deeply rooted tradition of same-sex
marriage, in the nation or in this state. Precisely
the opposite is true. The concept of same-sex
marriage was unknown in our distant past, and is
novel in our recent history, because the universally
understood definition of marriage has been the legal
or religious union of a man and a woman."
In re Marriage Cases, 43 Cal. 4th 757, 866, 183 P. 3d 384,
460, 76 Cal. Rptr. 3d 683, 773 (2008) (Baxter, J., concurring
in part and dissenting in part) (footnote omitted). 3
"For better, for worse, or for more of the 3
same, marriage has long been a social
institution defined by relationships
between men and women. So long defined,
the tradition is measured in millennia, not
centuries or decades. So widely shared,
the tradition until recently had been
adopted by all governments and major
religions of the world."
many citizens had not even considered the
possibility that two persons of the same sex might
aspire to occupy the same status and dignity as that
of a man and woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought
of by most people as essential to the very
definition of that term and to its role and function
throughout the history of civilization."
___ U.S. at ___, 133 S.Ct. at 2689 (also noting that "[t]he
limitation of lawful marriage to heterosexual couples ... for
centuries had been deemed both necessary and fundamental,"
id.).
"It is beyond dispute, as the Court of Appeal
majority in this case persuasively indicated, that
there is no deeply rooted tradition of same-sex
marriage, in the nation or in this state. Precisely
the opposite is true. The concept of same-sex
marriage was unknown in our distant past, and is
novel in our recent history, because the universally
understood definition of marriage has been the legal
or religious union of a man and a woman."
In re Marriage Cases, 43 Cal. 4th 757, 866, 183 P. 3d 384,
460, 76 Cal. Rptr. 3d 683, 773 (2008) (Baxter, J., concurring
in part and dissenting in part) (footnote omitted). 3
"For better, for worse, or for more of the 3
same, marriage has long been a social
institution defined by relationships
between men and women. So long defined,
the tradition is measured in millennia, not
centuries or decades. So widely shared,
the tradition until recently had been
adopted by all governments and major
religions of the world."
Having discarded several candidates for what aspect of
marriage is so fundamental that it warrants constitutional
protection -- age, consanguinity, sex, or love -- we are left
with the characteristic that has remained unchanged throughout
history: marriage has always been between members of the
opposite sex. The obvious reason for this immutable
characteristic is nature. Men and women complement each other
biologically and socially. Perhaps even more obvious, the
sexual union between men and women (often) produces children. 32
Marriage demonstrably channels the results of sex betweenmembers of the opposite sex -- procreation -- in a socially
advantageous manner. It creates the family, the institution 33
that is almost universally acknowledged to be the building
block of society at large because it provides the optimum
environment for defining the responsibilities of parents and
for raising children to become productive members of society.
See, e.g., Lehr v. Robertson, 463 U.S. 248, 256-57 (1983)
("The institution of marriage has played a critical role both
in defining the legal entitlements of family members and in
developing the decentralized structure of our democratic
society.... [A]s part of their general overarching concern for
serving the best interests of children, state laws almost
universally express an appropriate preference for the formal
family."); Smith v. Organization of Foster Families For Equal.
& Reform, 431 U.S. 816, 843-44 (1977) ("[T]he importance of
the familial relationship, to the individuals involved and to
the society, stems from the emotional attachments that derive
from the intimacy of daily association, and from the role itplays in 'promot(ing) a way of life' through the instruction
of children" (quoting Wisconsin v. Yoder
marriage is so fundamental that it warrants constitutional
protection -- age, consanguinity, sex, or love -- we are left
with the characteristic that has remained unchanged throughout
history: marriage has always been between members of the
opposite sex. The obvious reason for this immutable
characteristic is nature. Men and women complement each other
biologically and socially. Perhaps even more obvious, the
sexual union between men and women (often) produces children. 32
Marriage demonstrably channels the results of sex betweenmembers of the opposite sex -- procreation -- in a socially
advantageous manner. It creates the family, the institution 33
that is almost universally acknowledged to be the building
block of society at large because it provides the optimum
environment for defining the responsibilities of parents and
for raising children to become productive members of society.
See, e.g., Lehr v. Robertson, 463 U.S. 248, 256-57 (1983)
("The institution of marriage has played a critical role both
in defining the legal entitlements of family members and in
developing the decentralized structure of our democratic
society.... [A]s part of their general overarching concern for
serving the best interests of children, state laws almost
universally express an appropriate preference for the formal
family."); Smith v. Organization of Foster Families For Equal.
& Reform, 431 U.S. 816, 843-44 (1977) ("[T]he importance of
the familial relationship, to the individuals involved and to
the society, stems from the emotional attachments that derive
from the intimacy of daily association, and from the role itplays in 'promot(ing) a way of life' through the instruction
of children" (quoting Wisconsin v. Yoder
Marriage has not been
merely a contractual arrangement for legally
defining the private relationship between two
individuals (although that is certainly part of any
marriage). Rather, on an institutional level,
marriage is the 'very basis of the whole fabric of
civilized society,' J.P. Bishop, Commentaries on the
Law of Marriage and Divorce, and Evidence in
Matrimonial Suits § 32 (1852), and it serves many
important political, economic, social, educational,
procreational, and personal functions.
"Paramount among its many important functions,
the institution of marriage has systematically
provided for the regulation of heterosexual
behavior, brought order to the resulting
procreation, and ensured a stable family structure
in which children will be reared, educated, and
socialized. See Milford v. Worcester, 7 Mass. 48, 52
(1810) (civil marriage 'intended to regulate,
chasten, and refine, the intercourse between the
sexes; and to multiply, preserve, and improve the
species'). See also P. Blumstein & P. Schwartz,
American Couples: Money, Work, Sex 29 (1983); C.N.
Degler, supra at 61; G. Douglas, Marriage,
Cohabitation, and Parenthood -- From Contract to
Status?, in Cross Currents: Family Law and Policy in
the United States and England 223 (2000); S.L. Nock,
The Social Costs of De-Institutionalizing Marriage,
in Revitalizing the Institution of Marriage for the
Twenty-First Century: An Agenda for Strengthening
Marriage, supra at 7; L. Saxton, supra at 239-240,
242; M.A. Schwartz & B.M. Scott, supra at 4-6;
merely a contractual arrangement for legally
defining the private relationship between two
individuals (although that is certainly part of any
marriage). Rather, on an institutional level,
marriage is the 'very basis of the whole fabric of
civilized society,' J.P. Bishop, Commentaries on the
Law of Marriage and Divorce, and Evidence in
Matrimonial Suits § 32 (1852), and it serves many
important political, economic, social, educational,
procreational, and personal functions.
"Paramount among its many important functions,
the institution of marriage has systematically
provided for the regulation of heterosexual
behavior, brought order to the resulting
procreation, and ensured a stable family structure
in which children will be reared, educated, and
socialized. See Milford v. Worcester, 7 Mass. 48, 52
(1810) (civil marriage 'intended to regulate,
chasten, and refine, the intercourse between the
sexes; and to multiply, preserve, and improve the
species'). See also P. Blumstein & P. Schwartz,
American Couples: Money, Work, Sex 29 (1983); C.N.
Degler, supra at 61; G. Douglas, Marriage,
Cohabitation, and Parenthood -- From Contract to
Status?, in Cross Currents: Family Law and Policy in
the United States and England 223 (2000); S.L. Nock,
The Social Costs of De-Institutionalizing Marriage,
in Revitalizing the Institution of Marriage for the
Twenty-First Century: An Agenda for Strengthening
Marriage, supra at 7; L. Saxton, supra at 239-240,
242; M.A. Schwartz & B.M. Scott, supra at 4-6;
"The marital family is also the foremost setting
for the education and socialization of children.
Children learn about the world and their place in it
primarily from those who raise them, and those
children eventually grow up to exert some influence,
great or small, positive or negative, on society.
The institution of marriage encourages parents to
remain committed to each other and to their children
as they grow, thereby encouraging a stable venue for
the education and socialization of children.
for the education and socialization of children.
Children learn about the world and their place in it
primarily from those who raise them, and those
children eventually grow up to exert some influence,
great or small, positive or negative, on society.
The institution of marriage encourages parents to
remain committed to each other and to their children
as they grow, thereby encouraging a stable venue for
the education and socialization of children.
The limitation of marriage to opposite-sex couples
has so long existed in law that ascribing its existence solely
to hatred toward homosexuals is simply absurd on its face.
has so long existed in law that ascribing its existence solely
to hatred toward homosexuals is simply absurd on its face.
***
In the end, however, even if one were to accept that
marriage carries with it a "dignity" that compels its
availability to all, would we not meet ourselves coming?
marriage carries with it a "dignity" that compels its
availability to all, would we not meet ourselves coming?
***
Under that construct, such dignity no doubt would be something
gained from the very nature of traditional marriage, the
foundation for the family unit within which children may be
born and have imparted to them by a mother and father the
values needed for responsible citizenship and the furtherance
of society.
"To remove from 'marriage' a definitional component
of that institution (i.e., one woman, one man) which
long predates the constitutions of this country and
state (see e.g. Griswold v. Connecticut, 381 U.S.
479, 486[, 85 S. Ct. 1678, 14 L. Ed. 2d 510] [1965])
would, to a certain extent, extract some of the
'deep[] root[s]' that support its elevation to a
fundamental right."
Samuels v. State Dep't. of Health, supra.
Finally, an open question exists as to whether Windsor's
"equal dignity" notion works in the same direction toward
state laws concerning marriage as it did toward DOMA. The
Windsor Court stated that "[t]he history of DOMA's enactment
and its own text demonstrate that interference with the equal
dignity of same-sex marriages, a dignity conferred by the
States in the exercise of their sovereign power, was more than
an incidental effect of the federal statute." Windsor, ___
U.S. at ___, 133 S. Ct. at 2693. In Windsor, New York's law
allowed same-sex couples to obtain marriage licenses.
gained from the very nature of traditional marriage, the
foundation for the family unit within which children may be
born and have imparted to them by a mother and father the
values needed for responsible citizenship and the furtherance
of society.
"To remove from 'marriage' a definitional component
of that institution (i.e., one woman, one man) which
long predates the constitutions of this country and
state (see e.g. Griswold v. Connecticut, 381 U.S.
479, 486[, 85 S. Ct. 1678, 14 L. Ed. 2d 510] [1965])
would, to a certain extent, extract some of the
'deep[] root[s]' that support its elevation to a
fundamental right."
Samuels v. State Dep't. of Health, supra.
Finally, an open question exists as to whether Windsor's
"equal dignity" notion works in the same direction toward
state laws concerning marriage as it did toward DOMA. The
Windsor Court stated that "[t]he history of DOMA's enactment
and its own text demonstrate that interference with the equal
dignity of same-sex marriages, a dignity conferred by the
States in the exercise of their sovereign power, was more than
an incidental effect of the federal statute." Windsor, ___
U.S. at ___, 133 S. Ct. at 2693. In Windsor, New York's law
allowed same-sex couples to obtain marriage licenses.
***
The problem with DOMA was that it
interfered with New York's "sovereign" choice. Alabama "used
its historic and essential authority to define the marital
relation" and made a different "sovereign" choice than New
York. Id. If New York was free to make that choice, it would
seem inconsistent to say that Alabama is not free to make its
own choice, especially given that "[t]he recognition of civilown choice, especially given that "[t]he recognition of civil
marriages is central to state domestic relations law
applicable to its residents and citizens." ___ U.S. at ___,
133 S. Ct. at 2691.
interfered with New York's "sovereign" choice. Alabama "used
its historic and essential authority to define the marital
relation" and made a different "sovereign" choice than New
York. Id. If New York was free to make that choice, it would
seem inconsistent to say that Alabama is not free to make its
own choice, especially given that "[t]he recognition of civilown choice, especially given that "[t]he recognition of civil
marriages is central to state domestic relations law
applicable to its residents and citizens." ___ U.S. at ___,
133 S. Ct. at 2691.
****
ruling:
The named respondents are ordered to discontinue the
issuance of marriage licenses to same-sex couples. Further,
and pursuant to relator Judge Enslen's request that this
Court, "by any and all lawful means available to it," ensure
compliance with Alabama law with respect to the issuance of
marriage licenses, each of the probate judges in this State
other than the named respondents and Judge Davis are joined as
respondents in the place of the "Judge Does" identified in the
petition. Within five business days following the issuance of
this order, each such probate judge may file an answer
responding to the relator's petition for the writ of mandamus
and showing cause, if any, why said probate judge should notbe bound hereby. Subject to further order of this Court upon
receipt and consideration of any such answer, each such
probate judge is temporarily enjoined from issuing any
marriage license contrary to Alabama law as explained in this
opinion.
As to Judge Davis's request to be dismissed on the ground
that he is subject to a potentially conflicting federal court
order, he is directed to advise this Court, by letter brief,
no later than 5:00 p.m. on Thursday, March 5, 2015, as to
whether he is bound by any existing federal court order
regarding the issuance of any marriage license other than the
four marriage licenses he was ordered to issue in Strawser
issuance of marriage licenses to same-sex couples. Further,
and pursuant to relator Judge Enslen's request that this
Court, "by any and all lawful means available to it," ensure
compliance with Alabama law with respect to the issuance of
marriage licenses, each of the probate judges in this State
other than the named respondents and Judge Davis are joined as
respondents in the place of the "Judge Does" identified in the
petition. Within five business days following the issuance of
this order, each such probate judge may file an answer
responding to the relator's petition for the writ of mandamus
and showing cause, if any, why said probate judge should notbe bound hereby. Subject to further order of this Court upon
receipt and consideration of any such answer, each such
probate judge is temporarily enjoined from issuing any
marriage license contrary to Alabama law as explained in this
opinion.
As to Judge Davis's request to be dismissed on the ground
that he is subject to a potentially conflicting federal court
order, he is directed to advise this Court, by letter brief,
no later than 5:00 p.m. on Thursday, March 5, 2015, as to
whether he is bound by any existing federal court order
regarding the issuance of any marriage license other than the
four marriage licenses he was ordered to issue in Strawser
***
from the dissent (one judge)
For the foregoing reasons, I believe that this case is
not properly before this Court. As the main opinion notes,
this case is both unusual and of great public interest;
however, I do not see a way for this Court to act at this
time. By overlooking this Court's normal procedures; by
stretching our law and creating exceptions to it; by assuming
original jurisdiction, proceeding as a trial court, and
reaching out to speak on an issue that this Court cannot
meaningfully impact because the Supreme Court of the United
States will soon rule on it; and by taking action that will
result in additional confusion and more costly federal
litigation involving this State's probate judges, this Court,
in my view, is venturing into unchartered waters and
potentially unsettling established principles of law.
Therefore, I must respectfully dissent.
148
not properly before this Court. As the main opinion notes,
this case is both unusual and of great public interest;
however, I do not see a way for this Court to act at this
time. By overlooking this Court's normal procedures; by
stretching our law and creating exceptions to it; by assuming
original jurisdiction, proceeding as a trial court, and
reaching out to speak on an issue that this Court cannot
meaningfully impact because the Supreme Court of the United
States will soon rule on it; and by taking action that will
result in additional confusion and more costly federal
litigation involving this State's probate judges, this Court,
in my view, is venturing into unchartered waters and
potentially unsettling established principles of law.
Therefore, I must respectfully dissent.
148
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