March 24, 2014
The mother of an Alabama man who was killed in a car accident in August 2011 in Alabama is seeking to intervene in a federal challenge to the state’s laws barring recognition of same-sex marriages performed elsewhere. The case was brought by Paul Hard, the man’s husband, who wants the ban on recognition of his Massachusetts marriage struck down as unconstitutional.
After his husband, David Fancher, was killed in 2011, a wrongful death lawsuit was brought against trucking companies and a shipping company. The wrongful death case will be tried in court later this year. 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 suit. Represented by the Southern Poverty Law Center (SPLC), Hard is suing in federal court to force Alabama to recognize his marriage for purposes of distributing the proceeds from that upcoming trial.
Pat Fancher, the mother of David Fancher, has filed a motion to intervene in the federal challenge to Alabama’s non-recognition provisions. 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,” her filing suggests. 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.
She notes that state officials are primarily concerned with defending the same-sex marriage ban against Constitutional attack, and 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.”
Ms. Fancher is being represented by the Foundation for Moral Law, an organization dedicated “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! Please partner with us to achieve this important mission,” according to their website. That 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. 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.” Their brief suggests as well 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, striking down school segregation in Washington DC. The Court had 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: “Indeed, to rule, as the Court did in Bolling—that “due process of law” contains within it an “equal protection” component—is to renderthe true equal protection clause of the Fourteenth Amendment superfluous. If equal protection isimplied 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.
No federal court has upheld a same-sex marriage ban since a federal district court upheld Nevada’s in Sevcik v. Sandoval in November 2012.
The case is Hard v. Bentley.
Thanks to Kathleen Perrin for these filings