Editor's Note: Guest blogger Scottie Thomaston is a writer and LGBT activist living in Loxley, Alabama. He is an Editor at EqualityOnTrial.com, and he contributes to the Huffington Post, Daily Kos, Critical Mass Progress, and several other blogs.
UPDATE: Chief Judge William K. Watkins has granted the group's motion to intervene. His order notes that the motion was unopposed, and that "Ms. Fancher has an interest in the ultimate result of this action by virtue of its effect upon the potential distribution of any wrongful death damages." Because the Foundation for Moral Law will be representing her, it can be expected that familiar anti-LGBT arguments will make appearances throughout the proceedings.
The mother of a deceased Alabama man has hired an anti-LGBT legal organization to act on her behalf in filing a motion to intervene in a federal challenge to the state's laws barring recognition of same-sex marriages performed outside of the state. The woman's son, who was killed in a car accident in August of 2011, had been married to his same-sex partner prior to his untimely death.
The federal lawsuit seeks to invalidate a state law, the "Marriage Protection Act", as well as the portions of the "Sanctity of Marriage Amendment" that prohibit the recognition of legally-performed same-sex marriages.
Paul Hard, the husband of the man who was killed, is asking a federal district court judge in Montgomery, Alabama, to strike down the ban on recognition of his legal Massachusetts marriage. His challenge to the ban on non-recognition stems directly from the death of his husband, David Fancher. (A photo of Paul and David is after the jump.)
A wrongful death lawsuit was filed against trucking companies and a shipping company after the accident. The case will be tried in federal court later this year by Judge Myron H. Thompson, who was appointed to the federal bench by President Jimmy Carter. Under Alabama law, though, Hard is not recognized as Fancher's surviving spouse or his next of kin, and is not entitled to any of the proceeds from the wrongful death lawsuit.
Represented by the Southern Poverty Law Center (SPLC), Hard's challenge is aimed at forcing Alabama to recognize his marriage for purposes of distributing the proceeds from that upcoming trial.
But Fancher's mother argues that her rights are at stake too: the motion to intervene stated that she "has a significant interest in the wrongful death proceeds of her deceased son's estate being that she is next of kin under Alabama law and the rightful party to receive the potential damages." She further claimed that a ruling that required Hard and Fancher's marriage to be legally recognized by the state "would operate as a detrimental and permanent bar" to recovery of money from the wrongful death suit.
The federal challenge doesn't address Alabama's refusal to allow same-sex couples to marry, since there are no other couples involved and Hard is already married. Even so, Ms. Fancher's filing notes that state officials are concerned about defending the state's marriage discrimination amendment and its statutes regarding same-sex marriage.
It also notes that she "shares that concern and is deeply disturbed that the death of her son David, whom she deeply loved and with whom she had a good relationship, is being used by Plaintiff Paul Hard to advance the cause of same-sex marriage which she strongly opposes."
If these arguments sound particularly harsh, it's because Ms. Fancher is represented by the Foundation for Moral Law, an organization with a commitment "to restore the knowledge of God in law and government and to acknowledge and defend the truth that man is endowed with rights, not by our fellow man, but by God!" Based in Alabama, the group's President Emeritus is Roy Moore, the Chief Justice of the Alabama Supreme Court, widely known for his anti-LGBT views.
Moore came to relative prominence when he refused to remove a display of the Ten Commandments from his courtroom after a federal judge ordered its removal. (That case was also filed by the SPLC, along with the ACLU and Americans United for the Separation of Church and State.)
Most recently, Moore began a letter-writing campaign in an attempt to convince the governors of all fifty states to begin the process of amending the U.S. Constitution to ban same-sex marriage. His initiative has not gained any momentum.
His organization has filed friend-of-the-court briefs in several high-profile cases, including Hollingsworth v. Perry, the challenge to California's Proposition 8, and United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act (DOMA). In both cases, the organization supported upholding the anti-gay laws at issue.
In their Perry brief, they wrote in support of what they consider to be a "textual" approach to interpreting the Constitution. In other words, they believe the only rights secured by the Constitution are those explicitly spelled out within its text. The brief argued that the Constitution "does not guarantee a right to same-sex marriage, either explicitly in its language or implicitly in its tone."
Since the text of the constitution doesn't contain a direct reference to same-sex marriage, they argue that there is simply no constitutional right that a federal court has to vindicate. Their brief also suggests that "[a]ccording to the Declaration of Independence, rights are conferred by God, not by courts or legislatures."
In the group's Windsor brief, they took issue with the Supreme Court's landmark decision in Bolling v. Sharpe, which struck down school segregation in Washington DC. The Court held that even though there is no explicit Equal Protection Clause in the Fifth Amendment and the concepts of due process and equal protection are not always interchangeable, "discrimination may be so unjustifiable as to be violative of due process[.]"
Although the brief didn't call for overruling that decision, it heavily criticized the Court's reasoning, positing that:
"[i]ndeed, to rule, as the Court did in Bolling -- that "due process of law" contains within it an 'equal protection' component -- is to render the true equal protection clause of the Fourteenth Amendment superfluous. If equal protection is implied in the wording of the Fifth Amendment Due Process, then it would also be implied in the almost identical wording of the Fourteenth Amendment Clause, the only material difference being that the Fourteenth Amendment Due Process Clause expressly applies to the states."
That argument gained no traction in any of the opinions in Windsor.
Given their history and their leadership (the current president is Kayla Moore, Chief Justice Moore's wife) it's not much of a surprise that the organization would seek to intervene to head off a ruling in favor of same-sex couples. Their involvement makes it more likely that anti-gay arguments from years past will be resuscitated in order to advance a cause that's increasingly unpopular.
After the request was filed, the judge who's been assigned to the case (William Keith Watkins, appointed by President George W. Bush) asked all parties to the case to respond by Friday, March 28. Paul Hard responded to that order with a notice that he will not oppose Ms. Fancher's involvement in the case. Governor Robert Bentley and Attorney General Luther Strange, the state defendants, along with Steven Reed, Montgomery County Probate Judge, also won't oppose the request.
One of the initial defendants, Catherine M. Donald, State Registrar of Vital Statistics, has agreed to abide by the district court's (eventual) ruling in the challenge, and if the court holds that same-sex marriages performed outside of Alabama must be recognized, she "will accept application to amend the death certificate of Charles David Fancher[.]" Since she will comply with the ruling, at least in the absence of a stay of the decision, all parties have agreed to dismiss her as a defendant in the case.
Another defendant, Richard Lohr, who is administrator of David Fancher's estate, has been voluntarily dismissed after he agreed to not distribute any proceeds from the wrongful death lawsuit that Paul Hard would be entitled to, were he recognized as Fancher's surviving spouse. Otherwise, the money that's supposed to be distributed to the surviving spouse would go to other family members. Both of those defendants were dismissed with the understanding that they can be brought back as defendants if they stop complying with the stipulations to which they all agreed.
Governor Robert Bentley and Attorney General Luther Strange filed their answer to the initial complaint in the case on March 10. There doesn't appear to be anything exceptional about the filing: the state officials are defending the non-recognition provisions, as expected. They "deny that Plaintiff is legally a "widower" under Alabama law," and while they agree "state law is subject to the Fourteenth Amendment [to the US Constitution]" they "deny that Alabama's marriage laws violate the Fourteenth Amendment."
The state officials also deny that the state's discriminatory marriage laws "punish" anyone.
Beyond that, the state defendants' answer to the complaint suggests the anti-recognition provisions are subject only to rational basis review, and not any heightened form of judicial scrutiny; and they suggest that there are legitimate interests promoted by the ban. And they argue further that the ban is closely tied to compelling government interests, and it's narrowly-tailored to those interests - this is the framework typically associated with strict scrutiny, the most stringent form of judicial scrutiny a statute can face.
Given the introduction of that framework, they could be prepared to make arguments that the ban would survive even strict or heightened scrutiny. The state officials also suggest that the ban can be defended based on Tenth Amendment grounds, and alternatively, they claim that the question of whether same-sex marriage should be permitted is a "political question" and is outside the realm of judicial review.
Steven Reed, Probate Judge of Montgomery County, also filed his answer to the complaint, along similar lines.
The case is still in its early stages, no other motions have been filed, and the judge is expected to rule soon after the deadline for responses has passed.
Alabama's so-called "Sanctity of Marriage Amendment" was passed in June 2006, during a primary election in a non-presidential year.
The federal lawsuit is Hard v. Bentley.
Thanks to Kathleen Perrin and Equality Case Files for these filings.
Photo of Fancher and Hard courtesy of Michael Kukulski.