SPLC Schools ‘Foundation For Moral Law’ On The Constitution

When his husband David Fancher died in a tragic accident during 2011, Dr. Paul Hard of Auburn University at Montgomery suffered the standard indignities of an unequal marriage in Alabama when he was left off the death certificate and therefore unable to sue for David’s wrongful death.

But with the help of the Southern Poverty Law Center, Hard received an amended death certificate, and sued in federal court to overturn Alabama’s ban on same-sex marriage.

Enter Pat Fancher, David’s mother (see above). An opponent of marriage equality, she obtained the services of the Foundation for Moral Law, a self-styled “religious liberties” organization created by Roy Moore, Alabama’s infamous gay-bashing state supreme court chief justice, to oppose Hard in court as he sought to recover his due portion of a pending wrongful death judgment.

Neither case ever got very far, however. Instead, the highest court in the land heard a case from James Obergefell of Ohio which has a set of facts similar to Hard’s, finding for the plaintiff and overturning state marriage inequality laws across the nation.

A federal judge then mooted Hard’s case and denied Fancher’s motion to deny Hard his share of the civil judgment for David’s death.

Now, it’s not as if Fancher was being left destitute. In accordance with state laws about the division of wrongful death judgments, she also received hundreds of thousands of dollars. But that wasn’t enough for Ms. Fancher, who simply didn’t want to share any part of that million-dollar judgment with Mr. Hard.

As a result, the Foundation for Moral Law recently submitted a brief on the matter to the Eleventh Circuit Court of Appeals that is easily one of the most disingenuous legal documents I have ever seen. Pat Fancher would rather smear her dead son than be Paul Hard’s former mother-in-law.

Embedded below, the SPLC’s response on behalf of Hard is a total embarrassment of the Foundation’s shaky command of basic constitutional law, especially their bogus legal argument that the Obergefell decision somehow lacks ‘retroactivity.’

It is well-established that the constitutional decisions of the United States Supreme Court operate retrospectively. Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S. Ct. 2510 (1993). Harper held that “[w]hen [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” […]

In Obergefell, the Supreme Court held that states could not constitutionally refuse to recognize the valid out-of-state marriages of same-sex couples. 135 S. Ct. at 2608. It then applied this holding to the litigants before it in that case. Specifically the Supreme Court invalidated the Ohio statute that prohibited recognition of James Obergefell’s valid Maryland marriage to his late husband, John Arthur. The Supreme Court let stand the trial court’s ruling that Ohio must list Obergefell as Arthur’s surviving spouse on his death certificate. Id. By applying its holding to the parties before it (and retroactively to Obergefell’s and Arthur’s marriage and death certificate), the Supreme Court decided the issue of retroactivity and placed its Obergefell decision squarely within the general rule of retrospective application and Harper.

BU will stay on top of this story.

Courtesy of Equality Case Files