On December 10, 2021, Alabama Supreme Court Chief Justice Tom Parker issued a concurring opinion in Porter v. Porter contending that God, not government, has the power to define what the essence of marriage is.

In 2019, the State of Alabama passed a law abolishing the requirements of getting a marriage license and holding a ceremony as conditions of marriage. Instead, the new law allows two people to execute a form and file it with the probate clerk within 30 days after its execution. Filing the papers constitutes the legal recognition of marriage in Alabama. The purpose of the law appeared to be finding a way to comply with the Supreme Court’s decision in Obergefell v. Hodges without forcing probate judges or ministers to violate their religion by condoning same-sex marriages.  

This particular case arose from that law. In this case, a husband and wife got married, but the husband died before the couple could file the paperwork with the probate office. The wife filed the paperwork with the probate office after the husband’s death but before the 30-day period expired. The question of whether they were legally married dictated the outcome of the case. The Alabama Supreme Court concluded that they were married.

Agreeing fully with the majority, Chief Justice Parker wrote a concurring opinion to discuss the recent change in Alabama marriage law. “To understand this change,” wrote Chief Justice Parker, “it is important to first clarify in what sense the State of Alabama, or any civil government, has power to ‘redefine’ marriage.” Chief Justice Parker explained:

“The relationship of marriage was designed by the Creator; it both predates and transcends civil societies. No civil government was its originator, so none has power to define its essence. Rather, the nature and outer boundaries of marriage are defined only by its Supreme Architect, in His written word and in the natural order. That nature and those boundaries include the original creation of marriage as a covenant relationship by mutual consent between two human beings of the opposite sexes – i.e. one man and one woman.”

Discussing how those principles applied to the case before him, Chief Justice Parker wrote:

“Although governments are without power to change this institution of marriage, they are nevertheless obligated to recognize it in their laws. Thus, as long as they act consistently with the divinely established nature and boundaries of the institution, governments have power to determine the methods by which particular marriages receive legal recognition. In this sense, governments have power to ‘define’ and ‘redefine’ who is married and is not married in the eyes of the law.”

The citations upon which Chief Justice Parker relied have been omitted to make the larger quotes more readable, but Chief Justice Parker cited many legal precedents, including precedents recognizing that marriage is ordained by God, in support of his argument.

 Having set that framework, Chief Justice Parker examined the law in question and concluded with the Court that the man and woman were legally married. He also said that although the law no longer requires a marriage ceremony, he was in “no way discounting the societal significance of a marriage ceremony,” citing Revelation 19:6-9 for the proposition that a wedding celebration might even “reflect eternal realities” and concluding that the State should not discourage it.

Matt Clark, President of the Alabama Center for Law and Liberty, said, “In this concurring opinion, Chief Justice Parker accurately described how the Framers of our Constitution would have thought about marriage. The American system of government is built on the premise that all people are ‘endowed by their Creator with certain unalienable rights’ that precede government. Echoing that fundamental American idea, French statesman Frederic Bastiat said, ‘Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.’ In the same way, then, marriage does not exist because men have made laws, but the fact that marriage existed caused men to make laws to protect it. So then, the Architect of marriage decides what it is, and government decides how to protect it. Obergefell completely turned that framework on its head.”

Late last year, U.S. Supreme Court Justice Clarence Thomas, joined by Justice Samuel Alito, issued a concurring opinion in Davis v. Ermold reminding the nation that Obergefell was wrongly decided and should be overruled. Clark said, “In his Porter concurrence, Chief Justice Parker joined Justices Thomas and Alito in reminding the nation that there are still judges who care about first principles, who are committed to providing the intellectual firepower overruling patently erroneous decisions like Obergefell, and who will not give up on truth.”