Pat Fancher’s son David married Paul Hard in Massachusetts during 2011, but when he died in a severe traffic accident just a few months later, his husband didn’t get to see him in the hospital and then was left off the death certificate. These were standard humiliations for gay and lesbian partners, and they left Hard unable to sue the delivery company whose truck had caused the wreck.
So with the help of the Southern Poverty Law Center, Hard sued the state of Alabama to win recognition for his marriage. But David’s mother decided to oppose Hard in court so that her son’s death wouldn’t “advance the cause of same-sex marriage.” Enlisting the Foundation for Moral Law, an organization founded by Roy Moore, the chief justice of Alabama’s supreme court, Pat Fancher would do anything to prevent her son’s most intimate personal relationship from being recognized by the state just so she wouldn’t have to be Paul Hard’s former mother-in-law.
But then Hard won an amendment to David’s death certificate, won his wrongful death suit, and watched the United States Supreme Court strike down state marriage equality bans in their Obergefell decision. This July, a federal judge deferred to that precedent when he ruled against Pat Fancher’s motion to receive the proceeds of the wrongful death suit in Hard’s place. But she’s not done trying, and now Matthew Kidd of the Foundation for Moral law has submitted his new argument to the Eleventh Circuit Court of Appeals.
Embedded below, Kidd’s brief is one of the most disingenuous legal documents I have ever read. Consider the very first paragraph of his issues statement; I am no lawyer, but this couldn’t pass muster in a civics course, much less a basic constitutional law class.
The issue presented in this case is not whether same-sex marriage is legal in Alabama today. The issue is whether Obergefell compels the Eleventh Circuit to revive an illegal same-sex marriage and give that union retroactive effect so as to overcome both the Sanctity Laws of Alabama in place during the time in question and Alabama’s laws of intestate succession which govern the distribution of wrongful death damages in favor of the decedent’s mother.
In fact, the Obergefell decision struck down Alabama’s state law which had withheld state recognition from Hard’s marriage to David Fancher, which is exactly the issue on which he sued the state of Alabama in the first place. “Alabama’s laws of intestate succession” hold that the spouse of the deceased is the primary inheritor, not the parent. Kidd takes care to mention the ballot results of Alabama’s 2006 vote on the issue, but this state has a well-known history that makes it the perfect example of why America does not award human rights according to a popular vote.
Arguing that Obergefell is not ‘retroactive’ by summarizing all sorts of business law precedents that simply don’t apply to the case, Kidd adds this gem, which I have bolded:
Thereafter, both Hard and Fancher returned to and lived in the State of Alabama at separate residences. Upon returning to Alabama, Hard and Fancher were not legally married. […] On August 1, 2011 David was involved in a fatal traffic accident while traveling on I-65 North toward Birmingham.
David owned a property in Birmingham and still had a job there, but he suffered his accident while driving from Montgomery — where he did in fact reside with his husband Paul Hard — to his workplace. There simply isn’t another explanation for why he would have been driving north on that stretch of highway. By having her name on this brief, Pat Fancher is aiding and abetting a misleading revision of her son’s life and death. Would Pat Fancher smear her dead son to defy marriage equality? Better yet, would she besmirch David’s memory in order to get her hands on that six-figure wrongful death judgment? The evidence so far says yes. If Pat Fancher isn’t as famous as Rowan County, Kentucky Clerk Kim Davis, she is potentially even more significant as a sign of things to come. Just think: Roy Moore, Matthew Kidd, and the Foundation for Moral Law are filing briefs all the time, all over the country, to ‘help’ people like Pat Fancher kill marriage equality by a thousand vindictive cuts. Roy Moore, who once got turned out of his office for erecting a graven image of the Ten Commandments in the supreme court rotunda, doesn’t mind Kidd and Fancher breaking his god’s law about lies in order to undertake their holy mission. His angry, gay-hating god has already forgiven their sins in advance, after all. See how that works?
BU will also post the SPLC response to this brief as soon as it becomes available.
Courtesy of Equality Case Files