author:
LYONS, Justice. HOUSTON, MOORE, Chief Justice
      SEE, Justice

text:
    John W. RICE et al. v. Bill ENGLISH et al.
    1010968.
    Supreme Court of Alabama.
    May 24, 2002.

      Mark G. Montiel, Montgomery, for appellants.
    Bill Pryor, atty. gen., and John J. Park, asst. atty. gen., for appellees Bill English, Gloria Sinclair, Albert O. Howard, Alfonza Menefee, Johnny H. Williamson, Nancy O. Robertson, Lamar Turner, Jimmy Stubbs, Reese McKinney, Jr., Alfred Q. Booth, John E. Hulett, J. MacDonald Russell, Dwight Faulk, William C. Stone, and James Bennett.
    James E. Williams, Flynn Mozingo, and C. Mark Bain of Melton, Espy & Williams, P.C., Montgomery; and Larry T. Menefee, Montgomery, for Governor Don Siegel-man.
    Robert D. Segall and Shannon L. Holli-day of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Senator Henry Sanders and Senator Lowell Barron.
   LYONS, Justice.

This case involves a state-law challenge to the new redistricting plan for Alabama senate districts. That plan, proposed by Act No. 2001-727, 2001 Ala. Acts (hereinafter “the redistricting plan”), was approved by Governor Don Siegehnan on July 3, 2001, and was precleared by the Attorney General of the United States on October 15, 2001. John W. Rice, William McCall Harris, and Patricia Christine N. Wood (hereinafter collectively referred to as “the Rice plaintiffs”) challenged the redistricting plan, naming as defendants state election officials and contending that the plan failed to satisfy the one-person, one-vote standard they viewed as mandated by Art. IX, § 200, Ala. Const. 1901. The Montgomery Circuit Court entered a summary judgment in favor of the state election officials. This appeal followed.

I. Constitutional Background

Art. IX, § 200, Ala. Const.1901, describes the duty of the Legislature in the creation of senate districts. It provides:

“It shall be the duty of the legislature at its first session after taking of the decennial census of the United States in the year nineteen hundred and ten, and after each subsequent decennial census, to fix by law the number of senators, and to divide the state into as many senatorial districts as there are senators, which districts shall be as nearly equal to each other in the number of inhabitants as may be, and each shall be entitled to one senator, and no more; and such districts, when formed, shall not be changed until the next apportioning session of the legislature, after the next decennial census of the United States shall have been taken; provided, that counties created after the next preceding apportioning session of the legislature may be attached to senatorial districts. No county shall be divided between two districts, and no district shall be made up of two or more counties not contiguous to each other.”

(Emphasis added.)

Section 200 prohibits a districting plan that divides a county between two districts. In other words, county lines must be preserved in any redistricting plan. To accommodate the obvious fact that only a remarkably fortuitous circumstance would permit absolute equality in population between districts while observing the integrity of county lines § 200 speaks in practical terms of the goal that the population of the districts be equal. It requires the districts to be “as nearly equal to each other in the number of inhabitants as may be.”

In earlier litigation challenging the constitutionality of Alabama legislative districts on the basis of population disparity under the “one-man, one-vote” requirement as expressed in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court discussed the necessity of harmonizing the requirement of § 200 for integrity of county lines with' the requirement for substantial equality of population in legislative districts. Of course, pursuant to the Supremacy Clause in Art. VI of the United States Constitution, any provisions of § 200 that conflict with the Fourteenth Amendment to the United States Constitution would not be enforceable. Such a result was reached in Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.), aff'd, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), in which the three-judge panel held:

“In approving the crossing of county-lines, we necessarily fail to give effect to that part of Art. IX, § 200, Alabama Constitution of 1901, which forbids splitting any county between two or more legislative districts. We find that' the requirements of equal protection necessitate, in some instances, that county lines give way in drawing legislative districts. To the extent that Section 200 forbids such, it must yield for ‘when there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.’ ”

336 F.Supp. at 939 n. 20 (quoting Reynolds v. Sims, 377 U.S. at 584, 84 S.Ct. 1362).

II. Procedural History

On August 9, 2001, the Rice plaintiffs filed their complaint in the Montgomery Circuit Court, seeking declaratory and in-junctive relief. The Rice plaintiffs named Bill English, probate judge of Lee County, and 13 other probate judges, as well as Secretary of State James Bennett, each in his or her official capacity,' as defendants (hereinafter collectively referred to as “the election officials”). The Rice plaintiffs contended that the new senate districts failed to satisfy Art. I, § 33, and Art. IX, § 200, Ala. Const.1901, in that the population of the new districts was not “as nearly equal to each other ... as may be.” Art. IX, § 200. The Rice plaintiffs sought a judgment declaring that the new plan violates state law and injunctive relief that would, among other things, prohibit the use of the new districts in any election.

The election officials answered the complaint and moved to stay further proceedings pending preclearance of the plan by federal officials. When the State received a letter from the United States Department of Justice stating that the Attorney General of the United States interposed no objection to the plan, the State advised the trial court that the plan had been pre-cleared by filing a copy of the letter with the court.

While preclearance of the redistricting plan was pending, Governor Siegelman moved to intervene as a defendant; the trial court granted his motion. After the State obtained preclearance, Senators Lowell Barron and Henry Sanders also moved to intervene as defendants. The trial court granted that motion on January 10, 2002.

On November 19, 2001, the trial court entered a scheduling order, pursuant to which the parties were to file any disposi-tive motions by December 19, 2001, and were to argue those motions at a hearing to be held on January 10, 2002. On December 19, 2001, Secretary of State Bennett, for himself and the other election officials, filed a motion for a summary judgment, together with a supporting brief and a narrative summary of the undisputed material facts. Governor Siegelman joined in the election officials’ motion. Even though their motion to intervene had not been ruled on, Senators Barron and Sanders, on December 19, 2001, also moved for a summary judgment in their favor. On January 10, 2002, the trial court heard oral argument on the election officials’ summary-judgment -motion. At the time of the hearing, the Rice plaintiffs had not filed any written response to any of the summary-judgment motions. They did not file any response until January 17, 2002, when they filed what they entitled “Rice Plaintiffs’ Response and Objection to Motions for Summary Judgment by Other Parties; or, Alternatively, Response and Opposition to Motion by Intervenors Barron and Sanders for Summary Judgment.”

On January 28, 2002, the trial court entered two orders. In the first order, it held that the state-law claims before it were justiciable. In the second, it (1) granted the election officials’ motion for a summary judgment, in which it noted that Senators Barron and Sanders had orally joined in the motion to the extent that it addressed the merits of the Rice plaintiffs’ claims (as opposed to the justiciability of those claims); (2) stated that the summary-judgment motion filed by Senators Barron and Sanders was not before the court on January 9, 2002, and would not be considered; and (3) held that the Rice plaintiffs’ response was not timely filed and would not be considered. On February 11, 2002, the Rice plaintiffs filed a notice of appeal.

The trial court’s findings in its summary-judgment order can be summarized as follows:

(1) In adopting Art. IX, § 200, the drafters of the Alabama Constitution of 1901 did not require senate districts to be absolutely equal in population and, in fact, endorsed overall population deviations in excess of 202% for senate districts;

(2) Apportionment is primarily a legislative function; courts should act only if the Legislature fails to act constitutionally after having had a reasonable opportunity to do so. Brooks v. Hobbie, 631 So.2d 883, 890 (Ala.1993);

(3) The Legislature has itself adopted a 10% variance rule in its guidelines for reapportionment;

(4) Other states also apply a 10% variance rule;

(5) A federal district court in Alabama has already ruled that § 200 does not require greater equality in population in legislative districts than does federal law, and federal law generally permits deviations not exceeding 10%. Sims v. Amos, supra; and

(6)The plain meaning of § 200 itself does not require absolute population equality; instead, it requires the districts to be “as nearly equal as ... may be.”

III. Jurisdiction

The election officials argue that the separation-of-powers doctrine enshrined in § 43, Ala. Const.1901, requires that this Court decline jurisdiction over this case. The election officials remind us that in earlier cases this Court has refused to recognize the justiciability of redistricting claims, citing Waid v. Pool, 255 Ala. 441, 51 So.2d 869 (1951), and Ex parte Rice, 273 Ala. 712, 143 So.2d 848 (1962). The election officials attempt to distinguish Brooks v. Hobbie, supra, in which, they argue, this Court recognized the justiciability of redistricting claims only in those cases where the Legislature has wholly failed to act. The election officials support their contention with a quote from an opinion of the Supreme Court of Tennessee, quoted in Brooks v. Hobbie, observing that “ ‘courts should act only if the legislature fails to act constitutionally after having had a reasonable opportunity to do so.’ ” 631 So.2d at 888 (quoting Lockert v. Crowell, 631 S.W.2d 702, 706 (Tenn.1982)). However, the quoted text from Lockert refers to the failure to act “constitutionally” — not a failure to act at all. Id. We decline to read this Court’s statement in Brooks v. Hobbie that “in the event the legislature fails to act, the responsibility shifts to the state judiciary” as limiting this Court’s jurisdiction to only those instances in which the Legislature has failed to act at all. Brooks, 631 So.2d at 890.

In Brooks v. Hobbie, this Court distinguished Waid and Rice, noting that the Court’s disinclination to act in the earlier cases was based upon a judicially imposed prudential limitation on the Court’s authority in sensitive areas involving redistricting, rather than upon any provision of the State constitution limiting the power of courts to entertain the action. Brooks, 631 So.2d at 885. The election officials dismiss this basis for distinction as unconvincing; they suggest that “there is considerable tension between Brooks and Waid v. Pool.” We decline this veiled invitation to overrule Brooks v. Hobbie, mindful of the necessity for great deference to be given to legislative enactments when those enactments are challenged on constitutional grounds, as we discuss more fully below.

Justice Houston’s special concurrence states that Brooks v. Hobbie confused this Court’s responsibility under federal law with “our responsibility under State law, where our jurisdiction is restricted by the separation-of-powers provision in the Alabama Constitution.” 835 So.2d at 168 n. 4. It then concludes that “it is for the Legislature, not the judiciary, to determine whether these senatorial districts are as ‘nearly equal to each other in the number of inhabitants as may be,’ ” citing Art. III, § 43, Ala. Const. 1901 (the separation-of-powers clause). Id. Such abdication of judicial responsibility is inconsistent'with the settled principle that the people have forbidden the Legislature from conducting itself in a manner inconsistent with their constitution and when it does, it is incumbent upon the judiciary to nullify a legislative enactment contrary to the constitution. See Ex parte Selma & Gulf R.R., 45 Ala. 696 (1871).

However, in Ex parte Selma & Gulf R.R., this Court, while recognizing the Court’s power to exercise judicial review of acts of the Legislature, was also mindful of the need for restraint. This Court there stated:

“No power of this grave nature [i.e., judicial review of legislative acts] is expressly given. Considering its importance, it is a little strange that it has been wholly omitted. But, grant that it exists. It can not be permitted to rest upon mere inference and argument; because, if the inference is a mistake, or the argument is false, its exercise is an usurpation by one branch of the government against the authority of another. Did the people mean to grant such a power, unless some express clause of the constitution was clearly disregarded? I think not.”

45 Ala. at 728 (emphasis added).

This discussion of the doctrine of judicial review is remarkably parallel to the observations of Judge Learned Hand, speaking of the United States Constitution, almost 80 years later. Judge Hand stated:

“There was nothing in the United States Constitution that gave courts any authority to review the decisions of Congress; and it was a plausible — indeed to my mind an unanswerable — argument that it invaded the ‘Separation of Powers’ which, as so many then believed, was the condition of all free government.”

Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, 10-11 (Harvard University Press 1958). However, Judge Hand justified the propriety of judicial review as follows:

“For centuries it has been an accepted canon in interpretation of documents to interpolate into the text such provisions, though not expressed, as are essential to prevent the defeat of the venture at hand; and this applies with especial force to the interpretation of constitutions, which, since they are designed to cover a great multitude of necessarily unforeseen occasions, must be cast in general language, unless they are constantly amended. If so, it was altogether in keeping with established practice for the Supreme Court to assume an authority to keep the states, Congress, and the President within their prescribed powers. Otherwise the government could not proceed as planned; and indeed would almost certainly have foundered, as in fact it almost did over that very issue.
“However, since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks that is sees, an invasion of the Constitution.”

Id. at 14-15 (emphasis added). Judge Hand later described the power of judicial review as “no doubt a dangerous liberty, not lightly to be resorted to.... ” Id. at 29.

When Ex parte Selma & Gulf R.R. was written, a separation-of-powers clause appeared in Article III of the Constitution of 1868. The same text had appeared in every version of the Constitution since statehood in 1819. Article III of the Constitution of 1868 was copied word-for-word into Article III of the Constitution of 1875. The text was slightly modified in Article III, § 43, of the Constitution of 1901. However, William C. Oates, a delegate to the Constitutional Convention of 1901, comparing the differences between the Constitution of 1875 and the Constitution of 1901, stated, “The distribution of powers of government is substantially the same as in the old or present [1875] Constitution.” I Official Proceedings of the .Constitutional Convention of 1901, p. 4948. We conclude that the authority of this Court to review challenges to acts of the Legislature on constitutional grounds is a bedrock principle of our State’s legal heritage.

IV. Standard of Review

In Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000), this Court restated the long-standing rules governing review of acts of the Legislature under constitutional attack:

“ Tn reviewing [a question regarding] the constitutionality of a statute, we “approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.” ’ Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 159 (Ala.1991) (quoting Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)). Moreover, ‘[w]here the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it.’ McAdory, 246 Ala. at 10, 18 So.2d at 815. In McAdory, this Court further stated:
“ ‘[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is vio-lative of the fundamental law.’
246 Ala. at 9, 18 So.2d at 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id.”

V. Analysis

By the redistricting plan, the Legislature established 35 senate districts for the State. The Senate, according to the redistricting plan, is to be composed of 35 members, each representing a district whose total population is within plus or minus five percent of the ideal population of a senate district. In creating those districts, the Legislature split 30 of the State’s 67 counties. While the Rice plaintiffs rely on § 200, they concede, as they must, that, notwithstanding the clear prohibition of § 200, disregard of county lines is necessary to accommodate enforcement of the United States Constitution.

The Rice plaintiffs base a significant portion of their appellate argument on the contention that splitting counties must be held to the absolute minimum and that the Legislature’s attempt in the redistricting plan to satisfy the requirements of population equality at the expense of preserving county lines exceeds the absolute minimum. The trial court’s order conspicuously fails to address this contention; however, that omission is not an oversight.

The Rice plaintiffs contended in the trial court that the redistricting act violated § 200 in that the act disregarded the requirement of the Alabama Constitution that senate districts must have equal populations. The Rice plaintiffs’ complaint stated:

“32. [I]n order to achieve required population equality among Alabama’s thirty-five (35) state senate districts, as proscribed by Ala. Const, art. IX, § 200, the population of each state Senate district should be 127,060 persons with each senate district ‘as nearly equal to each other in the number of inhabitants as may be.’ See Ala. Const, art. IX, § 200.
“33. Pursuant to Act No. 2001-727, Alabama’s most populous state senate district, Senate District 8, has 133,302 persons. Accordingly, Senate District 8 exceeds the constitutionally required population by 6,242 persons, or 4.91%. Alabama’s least populous state senate district, Senate District 6, has 120,942 persons. Accordingly, Senate District 6 falls short of the constitutionally required population by 6,118 persons, or 4.82%. The difference between the populations of the most populous and the least populous state senate districts in Act No. 2001-727 is 12,360 persons, which constitutes a ‘relative overall range’ of 9.73%.”

(Footnotes omitted.) Nowhere in the complaint do the Rice plaintiffs challenge the degree to which county lines were disregarded. Likewise, in the summary-judgment hearing held by the trial court on January 10, 2002, the Rice plaintiffs argued:

“MR. MONTIEL [counsel for the Rice plaintiffs]: The first argument that the State makes, which is joined apparently by intervenors Barron and Sanders, is that Section 200 does not mean what we contend it is; that is, that the districts be as nearly as equal in the inhabitants as may be.
“Article 1, Section 2 [of the United States Constitution] deals with congressional districts. Federal courts are crystal clear, and the caselaw is undisputed in this country. The congressional districts, because of that language in the Federal Constitution, have to be drawn as nearly as equal, and I will submit to Your Honor that most states draw on to zero deviation; i.e., equal population.
“THE COURT: But not all of them?
“MR. MONTIEL: Occasionally a very, very small, de minimis, and the courts have said that these ranges, this, plus or minus 5 percent wouldn’t be de minimis. There’s no case — it’s going to be like .017 percent, very small. It’s where they may not be splitting a precinct and leave a few hundred people in the district. Might be constitutional or permissible under Article 1, Section 2 for the Constitution in congressional districts.
“THE COURT: The drafters of this 1901 provision, if they wanted equal, all they had to say was equal — draw them equal. Why would they modify that by saying nearly equal?
“MR. MONTIEL: Well, I think at that time — and I think that’s why the court has to look at the development of technology. They wrote, ‘shall be’ — it’s mandatory — ‘shall be as nearly equal to each other in number of inhabitants as may be.’ And we believe that requires the court to analyze whether or not the State of Alabama—
“THE COURT: If I were drafting this statute and I wanted — and my intention was for the districts to be equal, I would have written, ‘they shall be equal.’
“MR. MONTIEL: And we submit that’s what it says.... It says ‘shall be as nearly as equal.’ And as nearly as equal in inhabitants as may be in 2001 is zero deviation. And for purposes of the record, every district should have an equal number of inhabitants.
“THE COURT: Doesn’t [the phrase ‘as may be’] allow for some movement there, some — I mean, doesn’t it conjure up the notion that somebody realized that these things couldn’t be mathematically certain?
“MR. MONTIEL: Judge, ... the answer to that is, if you are not splitting counties—
“THE COURT: Uh-huh.
“MR. MONTIEL: And that’s another part of Section 200 you’re going to read.... You cannot use splitting counties as an excuse to violate equal population requirements under federal law. That’s what the federal courts have determined in Reynolds v. Sims [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ]. And what the federal court did in Reynolds v. Sims is [it] determined that certain provisions of Section 200 are unconstitutional, but — and there’s case-law, plenty of caselaw at this point, Judge.... [The federal court] specifies that all provisions of Section 200 ... that don’t violate federal law, should continue in existence, and certainly as-nearly-as-equal-in-inhabitants language doesn’t violate federal law. I mean, that’s saying if it’s zero deviation, that violates no one.”

The only reference to splitting counties in the argument before the trial court during the hearing on the summary-judgment motion occurs in the context of recognizing the ineffectiveness of that portion of § 200 condemning the splitting of counties when it stands in the way of the requirement of population equality in the legislative districts.

The Rice plaintiffs did not submit any written opposition to the summary-judgment motion, either before or at the hearing. At the conclusion of the hearing, the trial court gave the Rice plaintiffs permission to file additional materials in response to the motion for a summary judgment filed by intervenors Senators Sanders and Barron, which was not before the court at the time of the hearing on the election officials’ summary-judgment motion. One week after the hearing, the Rice plaintiffs submitted materials, including affidavits, which they styled as a response to the motion for summary judgment filed by the election officials or, alternatively, a response to the motion for summary judgment filed by intervenors Senators Sanders and Barron. In its order entered 11 days later, the trial court stated that it did not “reach the Motion for Summary Judgment filed by Defendant Intervenors Barron and Sanders.” With respect to the Rice plaintiffs’ response filed after the hearing, the trial court stated that it did not consider that response because it was untimely. Absent an abuse of discretion, a trial court does not err in striking as untimely affidavits in opposition to a motion for summary judgment. Murray v. Timberlake, 564 So.2d 885, 889 (Ala.1990); Nolen v. Peterson, 544 So.2d 863 (Ala.1989); Johnson v. Allstate Ins. Co., 505 So.2d 362 (Ala.1987). To the extent that this contention is raised in the response filed after the hearing on the election officials’ motion for summary judgment, we hold that the trial court did not abuse its discretion in rejecting it as untimely. Indeed, the Rice plaintiffs do not contend otherwise, stating in their reply brief, “County splitting was not considered at all by the trial court, as admitted by each of the Appellees in their respective briefs.” Reply Brief at pp. 2-3.

The Rice plaintiffs, therefore, contend for the first time on appeal that the redistricting act unnecessarily and excessively splits county lines in creating the State senate districts. Recently, in Porter v. Colonial Life & Accident Insurance Co., 828 So.2d 907, 908 (Ala.2002), we restated the long-standing general rule that “[t]he appellate courts will not consider a challenge to an order or a judgment of a trial court asserted for the first time on appeal.” This Court has often applied that general rule in the specific context of attempts to overturn a trial court’s summary judgment. See Ex parte Ryals, 773 So.2d 1011 (Ala.2000), where this Court stated, “[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” 773 So.2d at 1013 (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)) (second emphasis added). See also Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312 (Ala.2001), where this Court, after stating the general rule, observed:

“Put another way, on an appeal from a summary judgment, this Court cannot hold the trial court in error on the basis of arguments made for the first time on appeal. See Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999); West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290 (Ala.1993).”

The Rice plaintiffs seek to avoid this result by contending that § 200 requires, in addition to an evaluation of the population-equality requirement, an analysis of split counties. The Rice plaintiffs, however, cite no authority for setting aside the general rule requiring presentation of issues in the trial court as a predicate for appellate review in civil cases. The “plain-error” rule, which dispenses with the necessity for error preservation, is confined to death-penalty cases. The Rice plaintiffs’ efforts to urge for the first time on appeal excessive disregard of county lines in creating the senate districts as a basis upon which to reverse the trial court is therefore not before us.

The Rice plaintiffs also contend that the trial court erroneously applied the standard for equal protection under the Fourteenth Amendment to the United States Constitution, rather than the standard under § 200. We disagree. The trial court’s references to standards derived in adherence to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution are presented as illustrations or analogies and are not given the force of precedent. The trial court recognized the adoption of guidelines by the Legislature that embrace an overall percentage deviation of 10 percent, with which the redistricting plan complies. The trial court also took account of relevant historical context when it cited facts indicating that the framers of the Alabama Constitution of 1901 had a remarkably high tolerance for deviations in population between senate districts. While it is true that the legislative districts created at the time of ratification of the Constitution of 1901 were not governed by § 200, which did not come into operation until the next decennial census, we construe constitutional and statutory provisions in light of the circumstances and conditions prevalent at the time of enactment.

“It is a familiar canon of statutory construction that ‘where there is doubt as to the meaning and intent of a statute by reason of the language employed, or arising from the context, courts may look to the history, conditions which lead to that enactment, the material surrounding circumstances, the ends to be accomplished, and evils to be avoided or corrected, in order that the legislative intent be ascertained and given effect, if possible.’ ”

Eagerton v. Graves, 252 Ala. 326, 331-32, 40 So.2d 417, 422 (1949) (quoting Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 198, 167 So. 256, 257 (1936)). See also State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 648, 285 So.2d 917, 918 (1973) (“This question [of statutory construction] cannot be answered apart from the historical context within which the statute was passed.”). The trial court did not inappropriately adhere to principles applicable only to proceedings governed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution to the exclusion of principles of Alabama law applicable to the construction of § 200.

The Rice plaintiffs also contend that the trial court failed to consider “the obviously racially discriminatory pattern of population assignments” in the redistricting plan. Yet the Rice plaintiffs stated in the trial court, “[W]e don’t make any allegations of race in this case.”

VI. Conclusion

The trial court afforded the Legislature appropriate deference in its solution to the difficult question of dividing the State into 35 senate districts with approximately equal population. The districts created by the Legislature are within plus or minus five percent of the ideal population of a senate district. While various members of this Court, had we been privileged to participate in the legislative deliberations and then to cast votes according to our respective consciences, might have opted for different district boundaries, less disregard of county lines, or greater concern for more uniformity of population within districts, we recognize that the people elected us to cast our votes as judges and not as legislators. As judges, we cannot overturn the redistricting plan on the grounds asserted by the Rice plaintiffs in the appeal before us. The Rice plaintiffs have failed to overcome the presumption of constitutionality that precedent requires us to attach to the redistricting plan. In so holding, we adhere to the admonition of this Court in Ex parte Selma & Gulf R.R. that we should refrain from exercising the power of judicial review, described as one of “grave nature,” “unless some express clause of the constitution was dearly disregarded.” 45 Ala. at 728 (emphasis added). We therefore decline to invoke what Judge Hand described as “no doubt a dangerous liberty, not lightly to be resorted to” (L. Hand, id. at 29) so as to require further proceedings on whether a deviation in population of plus or minus five percent violates the constitutional mandate of § 200 that “districts shall be as nearly equal to each other in the number of inhabitants as may be.”

The trial court properly entered a summary judgment in favor of the election officials, as joined in by the intervenors; we affirm that judgment.

AFFIRMED.

BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., concurs specially.

MOORE, C.J., and SEE, J., dissent.

HOUSTON,

Justice (concurring specially).

The Legislature did its duty. (“It shall be the duty of the legislature ... after each ... decennial census, to fix by law the number of senators, and to divide the state into as many senatorial districts as there are senators.... ” Art. IX, § 200, Constitution of Alabama of 1901.) The Constitutional Convention of 1901 unequivocally defined what it meant when it provided in the Constitution that the Legislature shall do something. The Legislature is required to do the act the Constitution provides it shall do. “They [the Legislature] would violate their oaths if they did not do so.” Official Proceedings of the Constitutional Convention of 1901, p. 1800.

The Legislature has done its constitutional duty; in doing so, it has in no way violated an express constitutional prohibition, such as encroaching on the rights retained in the Declaration of Rights of the Alabama Constitution (Art. I, §§ 1 through 36). There is no Equal Protection Clause in the Alabama Constitution. See Ex parte Melof 553 So.2d 554 (Ala.1989). Under State law, which is all that is involved here, it is for the Legislature, not the judiciary, to determine whether these senatorial districts are as “nearly equal to each other in the number of inhabitants as may be,” because § 43 of the 1901 Constitution provides: “the judicial [department of government] shall never exercise the legislative or executive powers, or either of them; to the end that it may be a government of laws and not of men.”

MOORE, Chief Justice

(dissenting).

I strongly disagree with this Court’s affirmance of the summary judgment in this important case.

The standard of review for a summary judgment is well-settled.

“We review a summary judgment de novo.... A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P.... [A] party moving for a summary judgment always bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that it argues demonstrate the absence of a genuine issue of material fact.”

Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274, 276 (Ala.2000).

The defendants presented only three pieces of evidence to support their argument for a summary judgment: (1) the October 15, 2001, letter from the United States Department of Justice indicating that Act No. 2001-727, Ala. Acts 2001, had received preclearance under § 5 of the Voting Rights Act; (2) 1903 records of the State of Alabama Department of Archives and History, showing the population of Alabama counties from 1800 to 1900; and (3) an affidavit of Ms. Bonnie P. Shanholt-zer, authenticating the reapportionment committee guidelines for the legislative, state board of education, and Congressional redistricting for the State of Alabama.

These submissions lack any relevance to the question before us in this case, which is whether Act No. 2001-727 violates Art. IX, § 200, Ala. Const, of 1901. Preclearance from the United States Justice Department demonstrates that the plan is probably constitutional under the Voting Rights Act of 1964 prohibiting racial discrimination, but here, where no racial discrimination is alleged, preclearance does not help us in evaluating the state constitutional claims under Art. IX, § 200.

The population records from 1903 were submitted ostensibly to demonstrate that the State permitted wide deviations in the populations of districts at the time of the adoption of Art. IX, § 200. However, population deviations before the effective date of the 1901 Constitution are simply irrelevant. First, the language of Art. IX, § 200 stipulates that that section is to be applied after each decennial census; thus, it first applied to redistricting in 1910. Second, in Reynolds v. Sims, 377 U.S. 533, 569, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the United States Supreme Court later confirmed the finding of a lower court that the Alabama Legislature had not adhered to federal or state constitutional guidelines regarding apportionment for over 60 years and ordered reapportionment according to its “one-man, one-vote” analysis. At the time Reynolds v. Sims was decided, the State had not reapportioned its districts since 1901; therefore, in 1903 the districts had never been apportioned “as nearly equal to each other in the number of inhabitants as may be,” Art. IX, § 200. See Sims v. Frink, 208 F.Supp. 431, 435 (M.D.Ala.1962) (three-judge panel). Indeed, existing population deviations from 1903 until 1964 were the very reason the United States Supreme Court found Alabama’s legislative scheme to be in violation of the “one-man, one-vote” rule propounded in Reynolds.

Nevertheless, the trial court cited the population deviation of districts at the time of the adoption of Art. IX, § 200, as its main evidence in support of its holding that Art. IX, § 200, does not require strict population equality among senate districts. Stated alternatively, the trial court used a population-deviation scheme that violated the federal constitution to demonstrate that the present scheme does not violate the State constitution. This conclusion is clearly contrary to the rules of constitutional interpretation: A state “ ‘may, in fact, provide more protection for private rights than the United States Constitution requires,’ ” but it cannot provide less. Brooks v. Hobbie, 631 So.2d 883, 889 (Ala.1993), quoting Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 170 (Ala.1991).

Finally, the reapportionment committee guidelines merely show what the Legislature feels to be the criteria that must be met to satisfy federal and state constitutional standards in executing a redistricting plan. The guidelines stipulate that “the relative population deviation for any legislative ... district should not exceed plus or minus five percent (+ - 5%),” but this rule exists expressly to ensure “that the overall deviation in the plan” meets the “permissible overall deviation” according to “federal judicial decisions.” Reapportionment Committee Guidelines for Legislative, State Board of Education, and Congressional Redistricting, Il.l.b. (emphasis added). This rule does not address whether the requirements of Art. IX, § 200, have been met. Moreover, whether a legislative scheme has met federal or state constitutional requirements is not up to the Legislature if the scheme is challenged in court, because the court, not the legislature, must interpret constitutional requirements.

Furthermore, a review of the guidelines shows that its stipulations were not followed in structuring this redistricting plan. The guidelines specifically state that “proponents of Legislative and State Board of Education reapportionment plans should establish as a high priority minimizing population deviations among districts.” Guidelines, Il.l.b. The plus-or-minus-five-percent range is intended as a last resort, not a goal, when designing a redistricting plan. The guidelines require that any deviations in population contained in a proposed plan must be justified in a written “detailed explanation” that shows how the deviations “further[] rational state policies.” II.l.c. Maintaining county boundaries is not only listed as one of those “rational state policies,” but is also a state constitutional requirement under Art. IX, § 200. See Guidelines, IV.7.b. In other words, according to the guidelines, the Legislature must strive to achieve maximum equality in district populations while maintaining county boundaries. If there are deviations, a detailed written explanation should be submitted of how those deviations further state policies, yet no explanation was given to the trial court here, even though the deviations under the redistricting plan clearly disregarded the goal of maintaining county boundaries.

None of the evidence submitted by the defendants addresses the state constitutional question at issue and some of the evidence even shows a clear violation of the legislature’s own reapportionment guidelines. Nevertheless, the trial court cited all of these submissions as undisputed facts in support for granting the defendants’ motions for a summary judgment. This misapplication, alone, of the evidence to the issue of state constitutionality merits reversing the summary judgment in this case.

But even if the defendants had met their initial burden, the arguments and evidence presented by the Rice plaintiffs constitute substantial evidence creating a genuine issue of material fact. Once the moving party makes an initial showing in favor of a summary judgment, the burden shifts to the nonmoving party to present substantial evidence creating a genuine issue of material fact in order to avoid a summary judgment. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of a fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996).

Initially, the Rice plaintiffs pointed out, and the defendants conceded, that this is an issue of first impression in Alabama. Only three cases have been decided construing the meaning of the requirements of Art. IX, § 200; all of those cases are federal district court cases. See Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.1972); Burton v. Hobbie, 543 F.Supp. 235 (M.D.Ala.1982); and Burton v. Hobbie, 561 F.Supp. 1029 (M.D.Ala.1983). These cases provide conflicting conclusions as to how much population deviation is permitted by the language “as nearly equal to each other in the number of inhabitants as may be.” Art. IX, § 200. Because there are no controlling eases on what standard of deviation the Alabama Constitution permits, a plus-or-minus-five-percent deviation under the legislative reapportionment scheme simply has no legal support.

Additionally, the Rice plaintiffs’ written response to the motion for a summary judgment submitted by Senators Barron and Sanders raises several genuine issues regarding the reapportionment plan. The trial court curiously considered neither Senators Barron and Sanders’s motion for a summary judgment nor the Rice plaintiffs’ response — ruling that both were untimely. The Barron and Sanders motion was filed on January 9, 2002; the trial court did not rule on their motion to intervene in the case until the January 10 hearing. The summary-judgment motion of those defendants could not even have been officially filed with the court until January 10; therefore, holding that their motion for a summary judgment was untimely makes no sense, particularly when the trial court heard arguments on the motion from their counsel at the January 10 hearing.

The motion for a summary judgment filed by Senators Barron and Sanders was filed on January 10; the Rice plaintiffs filed their response to that motion on January 17, certainly a timely response. In fact, the trial judge told the Rice plaintiffs at the January 10 hearing that they could file their response by January 24. Despite this statement by the trial court, the court subsequently ruled on January 28 that the response was untimely, and the court did not consider in its decision the arguments made in the motion or response or the affidavits submitted therewith.

Those affidavits clearly show that the redistricting plan at issue had not been submitted to the permanent legislative committee on reapportionment, the committee charged with considering those issues and that the plan did not conform fully with the legislative committee guidelines. As explained above, those guidelines clearly provide that deviations in population require a detailed written explanation justifying the deviations as furthering rational state goals. The guidelines also state that redistricting plans should strive to maintain county boundaries. Although this redistricting plan failed in all of these respects, the trial court still found no genuine issues of material fact.

However, even if we ignore the Rice plaintiffs’ response to the summary-judgment motion of Senators Barron and Sanders, their remaining arguments demonstrate the constitutional problem with the redistricting plan in this case, i.e., the plan contains substantial deviations in population and disregards county boundaries. This Court finds that the integrity of county boundaries is not in issue because the Rice plaintiffs did not make the argument at trial; however, I believe their arguments relative to Art. IX, § 200, were sufficient to place the issue before us, because the integrity of county boundaries is an integral part of § 200. The Rice plaintiffs state in their complaint that Act No. 2001-727 violates Art. IX, § 200, of the Alabama Constitution of 1901. Although the Rice plaintiffs stress the requirement that senatorial districts “shall be as nearly equal to each other in the number of inhabitants as may be,” the complaint itself — combined with the defendants’ submission of the redistricting map — mandates that this Court consider, and the trial court should have considered, the fact that the redistricting plan splits nearly half of the State’s 67 counties, when Art. IX, § 200, explicitly states that “[n]o county shall be divided between districts.... ”

The federal district court for the Middle District of Alabama ordered a relaxation of the “no-division” provision of Art. IX, § 200, regarding county boundaries, in Sims v. Amos, 336 F.Supp. 924, 939 (M.D.Ala.1972), because the “one-person, one-vote” rule instituted by the United States Supreme Court has priority over the State requirement of maintaining political boundaries. However, in relaxing the standard, the court made it clear that “the requirements of equal protection necessitate, in some instances, that county lines give way in drawing legislative districts.” 336 F.Supp. at 939 n. 20 (emphasis added). Indeed, “[b]oundary lines are sacrificed only where absolutely necessary to satisfy the constitutional requirement of one man one vote.” 336 F.Supp. at 939 (emphasis added). Consequently, the “no-division” provision of Art. IX, § 200, cannot be arbitrarily disregarded by the legislature.

The district court in Sims explained that “the justification most often advanced by the states for permitting deviation from the ideal of one man one vote is the necessity for maintaining the integrity of political subdivisions such as counties.” 336 F.Supp. at 933. Indeed, the United States Supreme Court observed in Reynolds:

“It may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State.... Somewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting....
“A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme.”

377 U.S. at 578, 84 S.Ct. 1362.

Thus, the United States Supreme Court’s rationale for allowing a five-percent deviation in population for state legislative apportionment is to enable states to maintain political subdivisions, such as counties, yet the redistricting plan at issue here deviates substantially from the “nearly as equal ... as may be” population requirement of Art. IX, § 200, for each senate district, while it carves up nearly half of the counties in the State. For the defendants to justify the plan’s substantial deviations in population by pointing to the percentage deviations permitted by federal courts and then to ignore the very reason those courts permit those deviations defies logic.

The few federal district court cases referenced earlier that have examined the constitutionality of legislative apportionment schemes under Art. IX, § 200, bear out the importance of the interplay between the percentage deviation in population provided under the scheme and the number of counties split by the scheme. Sims v. Amos, 386 F.Supp. 924 (M.D.Ala.1972), Burton v. Hobbie, 543 F.Supp. 235 (M.D.Ala.1982), and Burton v. Hobbie, 561 F.Supp. 1029 (M.D.Ala.1983), all examine both the percentage of deviations in population between districts and the number of split counties created by the redistricting when evaluating the constitutionality of a State legislative apportionment scheme under the Alabama Constitution. There is no reason why we should not do the same, given the mandate of Art. IX, § 200.

When all of the facts and arguments are considered, it would appear that Act No. 2001-727 probably violates Art. IX, § 200, but that conclusion is not even necessary for a reversal here. All that is required is that the Rice plaintiffs have created a genuine issue of material fact. Given the lack of evidence presented by the defendants to carry their initial burden, the lack of precedent on this issue, the substantial deviations in population permitted by the plan, the number of counties split by the plan in direct contravention to both Art. IX, § 200, and the reapportionment committee guidelines, the trial court’s failure to consider arguments and affidavits I believe it should have considered, and the logical contradiction in the defendants’ argument, a genuine issue of material fact clearly exists in this case.

The majority of this Court discusses the propriety of judicial review and the Court’s need to practice restraint in exercising that power. However, our power and scope of judicial review is not in issue here, where, as the majority recognizes, we would abdicate our responsibility if we allow the Legislature to conduct “itself in a manner inconsistent with [our] constitution and when it does, it is incumbent upon the judiciary to nullify a legislative enactment contrary to the constitution.” 835 So.2d at 162.

The Court is necessarily exercising judicial review in this case, because it reviews the constitutionality of Act No. 2001-727; the outcome of that review does not determine whether we are exercising that power. If the Court believes that it does not have the power to review this issue because it presents a purely legislative matter, then it should so state and refrain. But a determination that the Rice plaintiffs have not overcome the presumption of constitutionality is, in essence, an exercise of judicial review. An argument that judicial review precludes a review of a summary judgment on such an important constitutional issue is, in actuality, an avoidance of our constitutional responsibility.

Representation is the bedrock tool of our democratic republican government. “[Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies.” Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). It means just as much, if not more, where state legislative bodies are concerned as it does for Congress, because “[s]tate legislatures are, historically, the fountainhead of representative government in this country.” Reynolds, 377 U.S. at 564, 84 S.Ct. 1362. Pretermitting argument on the legislative reapportionment scheme when possible constitutional violations are at stake is unconscionable. Further consideration of the issues is warranted; thus, summary judgment should not have been granted. Accordingly, I dissent.

SEE, Justice

(dissenting).

I do not disagree with the well-reasoned main opinion; I dissent only because, given the importance of this case, I would grant oral argument solely on the question of the effect of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), on the obligation the Alabama Constitution, Art. IX, § 200, places on the Legislature to create districts “as nearly equal to each other in the number of inhabitants as may be.” The question whether the Legislature fulfilled its obligation to preserve county lines — indeed, whether in light of Reynolds v. Sims it any longer has such an obligation — is expressly not before us on appeal; yet, it is not clear to me how this Court can construe the “as nearly equal” obligation except in light of the county-preservation obligation. It may be that the Legislature should have tried harder not to divide counties and that a 10% deviation in the population of the districts would have been permissible had few counties been divided; however, 30 of the 67 counties in the State were, in fact, divided. What effect should this fact have on our evaluation of the Legislature’s performance of its constitutional obligation to create districts “as nearly equal ... as may be”?

I agree with the main opinion that this Court is not without the power to review whether the Legislature has carried out its constitutional duty to redistrict. See Rice v. English, 835 So.2d 157 (Ala.2002). However, for prudential reasons, that power should rarely be exercised. Legislators take the same oath of office that we do:

“I solemnly swear that I will support the Constitution of the United States, and Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.”

Thus, it well may be that whatever the answer to my question, I ultimately would defer to the judgment of the Legislature, but I cannot know that without first resolving the Reynolds v. Sims question.

      . Although the Rice plaintiffs stated in their complaint that the redistricting plan failed to satisfy Art. I, § 33, Ala. Const.1901, they do not make any argument in this appeal concerning § 33.

      . Judicial review of the constitutionality of the redistricting plan cannot be said to have been beyond the contemplation of the Legislature. The redistricting plan established the Montgomery Circuit Court as the proper venue for challenges to the redistricting plan. See § 4 of Act No. 2001-727.

      . Reapportionment Committee Guidelines for Legislative, State Board of Education, and Congressional Redistricting.

      . The effect of Brooks v. Hobbie, 631 So.2d 883 (Ala.1993), is to confuse our responsibility under federal law, where our jurisdiction is expanded by the Supremacy Clause in the United States Constitution, with our responsibility under State law, where our jurisdiction is restricted by the separation-of-powers provision in the Alabama Constitution.

      . I recognize that the practicality of meeting federal requirements, keeping district population "as nearly equal ... as may be,” and the political process of the Legislature may impinge on the integrity of county boundaries. But the Legislature must strive for as little deviation as possible when dealing with a constitutional requirement.

      . See Jensen v. Wisconsin Elections Board, 249 Wis.2d 706, 713, 639 N.W.2d 537, 540 (2002) ("Despite the reality that redistricting is now almost always resolved through litigation rather than legislation, we are moved to emphasize the obvious: redistricting remains an inherently political and legislative — not judicial — task.”); and In re Reapportionment of Towns of Hartland, Windsor, and West Windsor, 160 Vt. 9, 14-15, 624 A.2d 323, 326 (1993) ("Redistricting is ‘primarily a matter for legislative consideration and determination.' In re Senate Bill 177, 130 Vt. 365, 371, 294 A.2d 657, 660 (1972). Accordingly, the redistricting plans approved by the General Assembly are presumed to be valid, In re Senate Bill 177, 130 Vt. 358, 361, 294 A.2d 653, 654 (1972), and there is a heavy burden of proof on those who allege that a redistricting plan violates the Constitution.' Davis v. Bandemer, 478 U.S. 109, 185, 106 S.Ct. 2797, 2838, 92 L.Ed.2d 85 (1986)(Powell, J., concurring in part and dissenting in part.) Further, it is primarily the Legislature, not this Court, that must make the necessary compromises to effectuate state constitutional goals and statutory policies within the limitations imposed by federal law.”).


source: Caselaw Access Project

author: YATES, Presiding Judge. MURDOCK, Judge, CRAWLEY, Judge, THOMPSON, Judge,

license: Public Domain

text:
    J.S. and E.S. v. D.W. and J.W.
    2990431.
    Court of Civil Appeals of Alabama.
    May 4, 2001.

      John M. Wood and Michael A. Anderson of Wood & Shaw, L.L.C., Birmingham, for appellants.
    Robert P. Bynon, Jr., Birmingham, for appellees.
    Patricia N. Moore, Birmingham, guardian ad litem.
   YATES, Presiding Judge.

J.S. and his wife E.S. appeal from a judgment awarding D.W. and J.W. grandparent visitation pursuant to § 26-10A-30, Ala.Code 1975, with T.S., the 4-year-old adopted daughter of J.S. and E.S. On appeal, J.S. and E.S. argue that D.W. and J.W. lack standing to bring the action and they also challenge the constitutionality of that statute.

The family relationships between the parties are somewhat unconventional. In 1994, S.S. (the son of J.S. and E.S.) and A.W. (the daughter of D.W. and J.W.), lived together for a brief period and conceived a daughter, T.S. A.W. and S.S. terminated their relationship after T.S.’s birth. Both A.W. and S.S. had serious personal problems that rendered them incapable of caring for T.S. For the first two years of her life, T.S. was cared for by D.W. and J.W. in their home; J.S. and E.S. frequently visited her during that period. During that same time, D.W. and J.W. began to experience marital problems, and they eventually divorced. J.W. continued to care for T.S. in her home after she and D.W. separated.

In 1996, when T.S. was almost two years old, J.W. and D.W. approached J.S. and E.S. about the possibility of J.S. and E.S. adopting T.S., because providing full-time care for the child had become too physically demanding on J.W. J.S. and E.S. agreed, and D.W. convinced his adopted daughter A.W. to give her consent to the adoption. T.S. was adopted by J.S. and E.S. in 1997. D.W. paid for one-half of the attorney fees associated with the adoption proceeding.

For a short time immediately after the entry of the final order of adoption in early 1997, D.W. and J.W. visited the child on a regular basis and took her to their homes for overnight visits. Approximately two months after the adoption was complete, however, the formerly congenial relationship between D.W. and J.W. and J.S. and E.S. deteriorated. J.S. and E.S. discovered that T.S. suffered from allergies and asthma. They claimed that her worst asthmatic episodes occurred after she returned from visits in the homes of D.W. and J.W. J.S. and E.S. claimed that J.W. smoked in the child’s presence and that T.S. was extremely allergic to J.W.’s cat. In response to these claims that the child’s health was jeopardized by her visits with D.W. and J.W., D.W. consulted with T.S.’s allergist, who advised him how to control the child’s environment to minimize her asthma symptoms. Upon learning of the allergist’s recommendations, J.W. found a new home for her cat and stopped smoking in her home. Both D.W. and J.W. made efforts to clean their respective homes in accordance with the allergist’s recommendations, but J.S. and E.S. refused D.W. and J.W. visitation with the child, except in the home of J.S. and E.S. and under the supervision of J.S. and E.S.

On August 10, 1998, D.W. and J.W. petitioned for grandparent visitation, pursuant to § 26-10A-30. J.S. and E.S., on February 2, 1999, moved to dismiss the petition, stating as grounds that D.W. and J.W. did not qualify as “natural” grandparents as contemplated by § 26-10A-80, because they had adopted A.W., their granddaughter, who is also T.S.’s mother. J.S. and E.S. argue that D.W. and J.W. are T.S.’s “natural” great-grandparents, rather than “natural” grandparents. J.S. and E.S. further alleged in their motion that the petition for visitation pursuant to § 26-10A-30 was an unconstitutional infringement on their right to privacy. The attorney general was given notice of the constitutional challenge, pursuant to § 6-6-227. After a hearing, the trial court overruled J.S. and E.S.’s motion to dismiss.

A guardian ad litem was appointed to represent T.S.’s interest; she filed a report with the court that favorably described the homes of D.W. and J.W. The guardian ad litem did not make a recommendation regarding visitation, but requested that if the trial court granted visitation it do so on a gradual basis to allow the child sufficient time to readjust to D.W. and J.W., because they had not seen each other for over a year. This is because neither D.W. or J.W. felt comfortable visiting T.S. in J.S. and E.S.’s home.

At the hearing, J.S. and E.S. expressed their concern that visitation with D.W. and J.W. would cause T.S. to experience health problems. J.S. and E.S. also testified that they were concerned that A.W., the child’s birth mother, would return to D.W. or J.W.’s home and kidnap the child. The testimony indicated that A.W. was continuing to experience substance-abuse problems. A.W. now lives in Kentucky and rarely contacts D.W. and J.W; J.S. and E.S. admitted that their son (T.S.’s biological father) was presently incarcerated on a conviction of grand larceny, and they testified that they had taken the child to visit him in prison. After the hearing, the trial court entered a judgment awarding visitation to J.W. and D.W. pursuant to § 26-10A-30.

J.S. and E.S. contend that D.W. and J.W. have no standing to bring a petition seeking visitation pursuant to § 26-10A-30, because, they say, D.W. and J.W. are not the “natural” grandparents as contemplated in the language of that section. Section 26-10A-30 provides that “[p]ost-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by [certain family members].” We note that, in advancing this argument, J.S. and E.S. appear to equate the term “natural” with the term “biological.” It is undisputed that the child’s mother, A.W., is the biological granddaughter of D.W. and J.W. However, D.W. and J.W. adopted A.W. when she was a child and, under Alabama law, they are to be treated as AW.’s natural parents. Section 26-10A-29 provides that, after adoption, “the adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from the relation, including the right of inheritance.” It follows that if A.W. is to be treated as the “natural child” of D.W. and J.W., then they are to be treated as AW.’s “natural” parents. Following this line of reasoning, we find it clear that, under Alabama law, D.W. and J.W. are treated as “natural” grandparents of T.S., who is AW.’s biological daughter.

It is instructive to compare § 26-10A-30 with another recently enacted statute codified at § 30-3-4.1; this new statute also provides for grandparent visitation. This new statute did not become effective until September 1, 1999 — almost one year after D.W. and J.W. had filed their petition pursuant to § 26-10A-30. Although this newly enacted statute has no application to the present case, we find noteworthy its definition of “grandparent.” Section 30-3-4.1 defines a “grandparent” as “the parent of a parent of a minor child, the parent of a minor child’s parent who has died, or the parent of a minor child’s parent whose parental rights have been terminated when the child has been adopted pursuant to Section 26-10A-27, 26-10A-28, or 26-10A-30, dealing with stepparent and relative adoption.” We conclude that J.W. and D.W. have standing to bring the present action.

Therefore, D.W. and J.W., i.e., the biological great-grandparents of T.S., have standing under § 26-10A-30 to ask for grandparent visitation with T.S., because they adopted their biological granddaughter. Any other interpretation would contradict Alabama law and its mandate that adopted children be treated the same as biological children. Cf. Gotlieb v. Klotzman, 369 So.2d 798 (Ala.1979)(adopted children are treated the same as biological children under will); Kernop v. Taylor, 644 So.2d 971 (Ala.Civ.App.1994)(father must pay child support for adopted child because adopted children have equal status with biological children).

J.S. and E.S. also challenge the constitutionality of § 26-10A-30. J.S. and E.S. have served a copy of their brief on the attorney general, in compliance with Rule 44, Ala. R.App. P.; that office has waived the right to appear in this appeal.

The history of grandparent visitation in Alabama is as follows: In 1980, the legislature enacted § 30-3-3, which abrogated the common-law proposition that grandparents possessed no legal right of visitation, and created a right of visitation when the parents were divorcing. In 1983, the legislature repealed § 30-3-3 and enacted § 30-3-4. The intent of the 1983 statute was to expand “grandparental rights to visitation to include the situation involving the death of one of the grandchild’s parents.” Mills v. Parker, 549 So.2d 97, 98 (Ala.Civ.App.1989).

In a case pending before the repeal of § 30-3-3, the supreme court decided Ex parte Bronstein, 434 So.2d 780 (Ala.1983), wherein it addressed the question whether natural grandparents who want to visit their grandchildren may obtain visitation rights when the children’s natural mother has subsequently remarried and the natural father has consented to the stepfather’s adoption of the children. The supreme court held that § 30-3-3 applied only in situations where the court was considering a divorce case. The supreme court further stated:

“[A]doption, like birth, creates legal relationships under which adoptive parents gain certain rights which pre-empt any visitation rights by natural parents or grandparents. Consequently, we hold that because there is a societal importance in the establishment of a permanent and stable family unit, see Pendergrass v. Watkins, 383 So.2d 851, 855 (Ala.Civ.App.1980), an adoption of a child must necessarily sever all former family bonds and relationships. The courts are not free, therefore, to intervene on behalf of relatives who seek visitation, especially when the child’s adoptive parents have decided not to permit visitation.”

Id. at 783-84.

In 1984, the year after Ex parte Bron-stein was decided, the legislature amended the adoption statute, § 26-10-5, to create an exception to the general rule that an adoption order that terminates the rights of the natural parents also terminates the rights of the natural grandparents. That exception provided:

“[A]t the discretion of the court, visitation rights for the natural grandparents of the minor children may be maintained, or allowed upon petition of modification after the final order of adoption is entered.”

In 1990, § 26-10A-30 replaced § 26-10-5. The constitutionality of § 26-10A-30 has never before been challenged. It is interesting to note that former § 30-3-4, the predecessor to § 30-3-4.1, was challenged in Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986). Even though the appellant in Cockrell had not raised that issue at the trial level, the court, with little discussion and citing no caselaw, declared that statute constitutional.

J.S. and E.S. argue that § 26-10A-30 infringes on their familial rights, which, they argue, fall within a recognized zone of privacy, in contravention of the Alabama Constitution and of the United States Constitution. Section 26-10A-30 provides:

“Post-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any. Such visitation rights may be maintained or granted at the discretion of the court at any time prior to or after the final order of adoption is entered upon petition by the natural grandparents, if it is in the best interest of the child.”

While this appeal was pending, the United States Supreme Court handed down an opinion in which six Justices of that Court affirmed the Washington Supreme Court’s decision striking down Washington’s nonparental-visitation statute as an unconstitutional infringement on parents’ fundamental rights to rear their children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court stated that, with regard to child-visitation rights, “the right of parents to make decisions concerning the care, custody, and control of their children” is a fundamental right protected by the Due Process Clause. The Supreme Court struck down the Washington statute, which allowed “any person” at “any time” to seek visitation rights with a child and provided that visitation might be awarded if “visitation may serve the best interest of the child.” 530 U.S. at 67, 120 S.Ct. at 2061.

The plaintiffs in Troxel were the paternal grandparents of two illegitimate children of their deceased son; they sought visitation with the children. The grandparents requested two weekends of overnight visitation per month and two weeks of visitation during the summer. The mother did not oppose the visitation, but, instead, objected to the amount of visitation requested by the grandparents. The mother requested that the grandparents have one day of visitation per month, with no overnight stay. The trial court granted the grandparents visitation for one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.

The mother appealed. The Washington Court of Appeals reversed the trial court’s order and dismissed the grandparents’ petition for lack of standing. On review, the Washington Supreme Court held that the grandparents had standing but that the statute was unconstitutional for two reasons. First, the court found that the statute did not require that a person seeking visitation make a showing that in the absence of the requested visitation the child was at risk, and such a showing, the court held, is required before the state can interfere with parents’ rights to rear their children. Second, the court held that the statute was too broad in allowing “any person” at “any time” to seek visitation and requiring only that the visitation serve the best interests of the child.

The Supreme Court of the United States affirmed the Washington Supreme Court’s judgment, concluding that what it called the “breathtakingly broad” statute, as applied to the mother, violated her due-process rights to make decisions concerning the care, custody, and control of her children. In reaching its decision, the Supreme Court noted that the statute contained no requirement that the parent’s decision be given any presumption of validity or any special weight. 530 U.S. at 70, 120 S.Ct. at 2062-63. The Supreme Court held that because the grandparents had not alleged that the mother was unfit, it must be presumed that the mother had acted in the best interests of her children. 530 U.S. at 68, 120 S.Ct. at 2061. The problem, the Supreme Court said, was not that the trial court intervened, but that in so doing it gave no special weight to the mother’s determination of her children’s best interests. 530 U.S. at 69-70, 120 S.Ct. at 2062. Indeed, the trial court presumed the opposite and placed the burden on the mother to prove that visitation would not be in the best interests of her children. 530 U.S. at 69-70, 120 S.Ct. at 2062.

The Supreme Court’s plurality opinion in Troxel is also notable for the issues it left unanswered. First, the Court declined to determine whether, as a condition precedent to visitation, the Due Process Clause requires a showing of harm or potential harm to the child. The Court did not define “the precise scope of the parental due process right in the visitation context.” 530 U.S. at 73, 120 S.Ct. at 2064. The Court did not issue a per se holding that all nonparental visitation statutes are unconstitutional. 530 U.S. at 73-74, 120 S.Ct. at 2064. The members of the plurality agreed with Justice Kennedy’s statement in his dissent that the “constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied.” 530 U.S. at 73, 120 S.Ct. at 2064-65. The reason the Court did not make a per se ruling on constitutionality is that states, in ruling on the constitutionality of their own nonpa-rental-visitation statutes, have made these determinations in the past on a case-by-case basis, because the outcome depends on the application of those statutes. 530 U.S. at 73-74, 120 S.Ct. at 2064. The Trox-el Court noted differing provisions in various state statutes governing grandparent visitation. 530 U.S. at 73-74, 120 S.Ct. at 2064. This too, would affect the constitutionality of a particular statute.

Although the Troxel Court recognized the parental rights at issue as fundamental, the court did not articulate a standard of review to be applied to laws impinging on such rights. As Justice Thomas noted in his concurrence, “the opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a [parental] right, but curiously none of them articulates the appropriate standard of review.” Troxel, 530 U.S. at 80, 120 S.Ct. at 2068 (Thomas, J., concurring).

Justice O’Connor, writing for the plurality, recognized that the Due Process Clause “includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ [Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)]; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).” 530 U.S. at 65, 120 S.Ct. at 2060.

The plurality opinion then went on to cite the following cases concerning parental rights, in its recognition that parental rights are fundamental: Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (statutory bar against teaching a foreign language struck down); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (upholding the right of parents to send their children to a private school); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (upholding a child-labor law that prohibited children from selling magazines in the street or other public place, against a freedom-of-religion claim); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (state statute that automatically allowed the State to assume custody of a child whose mother had died, without allowing the unwed father to assert parental rights, violated due-process and equal-protection guarantees); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“best-interests-of-the-child” standard adequately protected unwed father’s due-process rights where he had never supported or attempted to legitimate the 11-year-old child involved in an adoption proceeding); Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (applying strict scrutiny, the Court held state statute authorizing parents to commit their children to mental institutions without the child’s consent did not deny due process); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (due process requires that proceedings to terminate parental rights use the “clear-and-convincing” standard of proof); Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (holding that terminally ill patients do not have a fundamental liberty interest in committing suicide).

Although Meyer, 262 U.S. at 399-400, 43 S.Ct. 625, and Pierce, 268 U.S. at 534-35, 45 S.Ct. 571, appear to apply a “rational-basis” standard in the context of parental rights, by holding that State interference must not be “arbitrary or without reasonable relation to some purpose within the competency of the state to effect,” see Meyer, 262 U.S. at 400, 43 S.Ct. 625, those cases were decided before the Supreme Court had developed the “strict-scrutiny” analysis. See Poe v. Ullman, 367 U.S. 497, 548, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Graham v. Richardson, 403 U.S. 365, 375-76, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Supreme Court applied a “strict-scrutiny” analysis in striking down a statute that required all children, including Amish children who had challenged the statute as a violation of the right to free exercise of religion, to attend school until they were 16. However, the Yoder Court indicated that had the parents’ concerns been only secular, then the “rational-review” standard would apply. These cases recognize that the family is not beyond regulation in the public interest. However, we note that Meyer, Pierce, and Yoder involved parental rights in the context of public education. As the Yoder Court stated, providing a public education is “the very apex of the function of the State.” 406 U.S. at 213, 92 S.Ct. 1526. Providing nonparental visitation is not. Further, Yoder also indicates that a higher standard of review may be warranted with certain fundamental rights, depending on their character and the context in which they are asserted.

In contrast, the parental rights involved in the present case concern a parent’s right “in the companionship, care, custody, and management of his or her child.” Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. 1208. Court-ordered visitation whereby on a weekly or monthly basis a child is taken from the parent’s custody for days or weeks at a time, over the parent’s objection, can hardly be characterized as a minimal intrusion. Because this case involves the fundamental right to parent, we will apply a strict-scrutiny analysis.

The common law recognized a right of parents to determine with whom their child would associate. In contrast to parents, grandparents generally had no common-law right to visitation if the parents objected. Ex parte Bronstein, 434 So.2d 780; Ronald W. Nelson, “Troxel v. Granville: The Supreme Court Wades Into the Quagmire of Third-Party Visitation,” 12 No. 6 Divorce Litig. 101 (June 2000). The Supreme Court noted in Troxel that all 50 states now have grandparent-visitation statutes, which vary in form. The Troxel Court recognized that these statutes were, in part, a response to the fact that we have an increasing number of children living in single-parent households. The number of unmarried and divorced parents has increased, along with the number of stepfamilies. David T. Whitehouse, Comment, 76 N.D. L.Rev. 191, 196 (1999) (relating to Hoff v. Berg, 595 N.W.2d 285 (N.D.1999), declaring the North Dakota grandparent-visitation statute unconstitutional). Also, the lobbying effort on behalf of an increasing number of senior citizens has been seen as a reason for the success of efforts promoting grandparent-visitation statutes. Comment, 76 N.D. L.Rev. at 198.

The earlier grandparent-visitation statutes required for their invocation some form of disruption in the core family, such as death, divorce, incarceration, incompetency, loss of parental rights, or some harm or threat of harm to the child. Karen A. Nalle, Comment, Whose Child Is It Anyway: The Unconstitutionality of the Texas Grandparent Visitation Statute, 51 Baylor L.Rev. 721, 726 (1999). More recent statutes have allowed for grandparent visitation regardless of the status of the family unit. See, e.g., § 30-3-4.1(b)(5), Ala.Code 1999; Idaho Code § 32-719 (1999); Texas Family Code § 153.433(2)(F); Revised Code of Washington § 26.10.160(3).

There are generally three categories of grandparent-visitati&n statutes. Comment, 51 Baylor L. Rev at 733-41. The first kind of statute is an open-ended statute that allows visitation without a showing of harm to the child and balances the parents’ fundamental rights with the best interests of the child. An example is the Florida statute addressed in Beagle v. Beagle, 678 So.2d 1271 (Fla.1996). In Beagle, the Florida Supreme Court held Florida’s grandparent-visitation statute unconstitutional because it violated the parents’ right to rear their children free from government intervention and infringed upon the parents’ privacy. The Florida statute was open-ended, because it granted visitation solely upon a finding that visitation was in the child’s best interests. The court held the statute to be facially unconstitutional, on the basis that it im-permissibly interfered with parental rights protected by the Florida and United States Constitutions. The court held that without a showing of harm to the child, the State was unable to satisfy a compelling state interest required under the privacy provisions in the Florida Constitution. That court applied the doctrine of “strict scrutiny.”

The second kind of grandparent visitation is provided by a modified open-ended statute that specifically defines the best interests of the child with regard to whether harm to the child is present. Comment, 51 Baylor L.Rev. at 737. This kind of statute intertwines a finding of substantial harm to the child within the definition of “best interests” of the child. In Herndon v. Tuhey, 857 S.W.2d 203 (Mo.1993), the Missouri Supreme Court held that state’s statute constitutional because, the court held, the statute did not impose an undue burden on parents’ childrearing rights and was narrowly tailored to protect the interests of the parties. The best interests of the child, as defined by the statute, were the focal point. The court appears to have applied a heightened scrutiny, judging by its use of the terms “undue burden” and “narrowly tailored.” 857 S.W.2d at 210.

The third kind of statute is one that requires a court to apply a “best-interests-of-the-child” analysis, along with making a finding of harm to the child, before granting visitation. Comment, 51 Baylor L.Rev. at 793. The Georgia Supreme Court, in Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995), applied the “strict-scrutiny” standard to its statute, which allowed grandparents to ask for visitation “under any circumstances” if visitation served the best interests of the child. The court held that there must be an element of harm present before the State can legitimately infringe on parents’ fundamental rights. The Georgia Legislature has since amended its statute to require a showing of harm to the child before grandparent visitation is allowed. § 19-7-3, Ga.Code.

In King v. King, 828 S.W.2d 630 (Ky.1992), the Kentucky Supreme Court upheld that state’s statute, under a “rational-basis” review. The court took a novel approach and declared that grandparents have a fundamental right to visit their grandchildren, stating that the legislature had the power to strengthen family bonds. This, in effect, was comparing two fundamental rights; review under some standard less than “strict scrutiny” may be appropriate where competing fundamental rights are at issue. See Carey v. Population Servs. Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (intermediate scrutiny applied where reproductive rights and parental rights were competing in case involving a minor).

The Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993), held Tennessee’s grandparent-visitation statute unconstitutional by applying “strict scrutiny.” The court rejected the argument that the best interests of the child constituted a compelling State interest that would be upheld in a “strict-scrutiny” analysis.

In Hoff v. Berg, 595 N.W.2d 285 (N.D.1999), the North Dakota Supreme Court held North Dakota’s statute unconstitutional, on the basis that it burdened the parents’ fundamental right to control their children’s associations. The court used the “strict-scrutiny” analysis in determining that a compelling State purpose did not justify the infringement upon this right.

The statute in the present case is open-ended and allows for grandparent visitation “at the discretion of the court” and when “it is in the best interest of the child.” The petition may be filed at “any time” before or after the adoption. Although the “best-interests” standard applies in custody and visitation statutes involving parents, those cases involve competing parental rights. In other words, in those cases the rights of both the mother and the father are involved and neither parent’s rights outweigh the other’s. Also, the “best-interests” standard is used when no fit parent is available, such as in a termination case where the State is attempting to provide an alternative parenting plan. Just as in Troxel, there have been no allegations that J.S. and E.S. are unfit parents.

In contrast to parental rights, a grandparent’s right to visitation is a recent statutory creation and is not a fundamental right on an equal footing with the right of a parent. This statute does not require a showing that the child will be harmed if grandparent visitation is not granted. The statute provides no factors for the court to consider in its analysis and no mandate that the court make findings of fact. There is no presumption in favor of the fit parents’ decision. “The Due Process Clause does not permit a State to infringe on the fundamental rights to make child-rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72-73, 120 S.Ct. at 2064. With the goal of adoption being to create new, presumably more stable, familial bonds, a statute infringing upon the new parents’ rights must be narrowly tailored in a manner least restrictive of the parents’ rights. Although the statute in Troxel was broader than § 26-10A-30, in that it allowed “any person” to ask for visitation, the Supreme Court’s holding was not based on the fact that “any person” could petition for visitation, but, rather, was based on grandparents’ visitation rights. In other words, the statute was not held facially unconstitutional, but was held unconstitutional as applied. In the present case, § 26-10A-30, as applied, is unconstitutional, because it infringes upon J.S. and E.S.’s fundamental right to parent.

Based on the foregoing, the judgment is reversed and the case is remanded for the trial court to enter an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MURDOCK, J., concurs specially.

CRAWLEY, J., concurs in the result.

THOMPSON and PITTMAN, JJ„ concur in part and dissent in part.

MURDOCK, Judge,

concurring specially.

The appellants are adoptive parents. More importantly, however, they are parents.

In Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the Supreme Court recognized that “the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays ‘in promoting] a way of life’ through the instruction of children as well as from the fact of blood relationship.” See also Michael H. v. Gerald D., 491 U.S. 110, 123-24, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (referring to “sanctity” traditionally accorded to “the relationships that develop within the unitary family”); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In distinguishing between the due process protection afforded to foster parents and natural parents, the Supreme Court in Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), noted:

“No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of a blood relationship.... Adoption, for example, is recognized [under New York law] as the legal equivalent of biological parenthood.”

431 U.S. at 844 and n. 51, 97 S.Ct. 2094. As all the judges of this court today agree, the same is true in Alabama. I therefore concur in the main opinion.

CRAWLEY, Judge,

concurring in the result.

I conclude that Ala.Code 1975, § 26-10A-30, is unconstitutional. Judge Yates concludes that the statute is unconstitutional as applied. I conclude that the statute is per se or facially unconstitutional. I cannot conceive of any situation where this statute could be constitutional. If a parent were found unfit, custody and visitation arrangements would be governed by the dependency jurisdiction of the juvenile court. See Ala.Code 1975, § 12-15-1 et seq., and § 26-18-1 et seq. Simply put, a fit parent’s decision regarding who visits his or her child cannot be regulated by the state.

Judge Yates follows the reasoning of the plurality opinion of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I would adopt the reasoning of Justice Thomas’s concurring opinion:

“Our decision in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.... I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest — to say nothing of a compelling one — in second-guessing a fit parent’s decision regarding visitation with third parties.”

530 U.S. at 80, 120 S.Ct. 2054.

THOMPSON, Judge,

concurring in part and dissenting in part.

I concur in the holding that D.W. and J.W., the biological great-grandparents of T.S., have standing, pursuant to § 26-10A-30, Ala.Code, 1975, to seek visitation with T.S. because of their adoption of their biological granddaughter.

I dissent, however, from the holding that § 26-10A-30, as applied by the trial court, is unconstitutional. In his dissent, Justice Kennedy joined with the four Justices concurring in the Troxel opinion in the admonition to the courts that “constitutional protections in [the area of nonparental-visitation statutes] are best ‘elaborated with care.’ ” Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

The statute being challenged in the present case, § 26-10A-30, is a much narrower statute than the “breathtakingly broad” Washington statute reviewed by the Troxel Court. Unlike the Washington visitation statute, which allowed any person to petition for visitation under any circumstances, § 26-10A-30 permits only “natural grandparents,” a limited class of persons, to petition for visitation in the limited category of intrafamily' adoptions. § 26-10A-30, Ala.Code, 1975.

Moreover, unlike the Washington Superior Court’s judgment that was reviewed by the Troxel Court, a judgment containing “slender findings,” the trial court’s judgment on review here contained the following specific finding:

“The Court finds that the adoptee previously had a relationship with [the petitioners], having lived in their home until she was approximately two years old. Both biological parents have problems which prevented them from assuming a child-rearing role with the adoptee. During such time that the adoptee lived with [the petitioners] they allowed [the paternal grandparents who ultimately adopted the child] to maintain visitation with the adoptee away from their home, and eventually suggested and facilitated [the paternal grandparents’] adoption [of the child].... ”

I believe we may infer from this finding that the petitioners established a bond during the child’s initial two formative years and that they fostered a healthy relationship with the paternal grandparents, who ultimately adopted the child, with the petitioners’ assistance.

Section 26-10A-30, Ala.Code, 1975, permits the trial court to determine, in its discretion, whether visitation would serve the child’s best interest. Alabama domestic-relations courts have traditionally used the “best interest-of-the-child” standard on a case-by-case basis in visitation proceedings. This narrowly drafted statute currently under review was apparently designed to foster close family bonds that had existed before the intrafamily adoption proceedings occurred. Given the limited context addressed by § 26-10A-30, I conclude that that statute, as written and as applied in the present case, is not unconstitutional.

Although I recognize and share the concerns expressed in the main opinion and in Judge Crawley’s special concurrence pertaining to the fundamental rights of parents to rear their children without interference, I do not believe the limited ruling in Troxel can be extended to declare this narrowly drafted statute unconstitutional on its face.

PITTMAN, J., concurs.

      . Neither the petition seeking the adoption nor the judgment granting that petition are contained in the record. From the testimony presented, however, we presume that J.S. and E.S. adopted T.S. pursuant to § 26-10A-28.

      . D.W. and J.W. were divorced at the time of trial and when the judgment was entered. In its final judgment, the trial court specified the hours T.S. was to visit in J.W.’s home and the hours she was to visit in D.W.’s home.

      . The legislature amended § 30-3-4 in 1989 and 1995 to expand grandparent visitation. In 1999, § 30-3-4.1 replaced § 30-3-4, further expanding grandparent visitation.

      . Subsequent to Troxel, a Missouri appeals court followed the holding of the Missouri Supreme Court in Herndon — that the statute was constitutional — because the Missouri statute was not as broad as the Washington statute and because of the unanswered questions left by the Troxel court. In re G.P.C., 28 S.W.3d 357 (Mo.App.2000). But Cf., Brice v. Brice, 133 Md.App. 302, 754 A.2d 1132 (2000) (Maryland court held its grandparent-visitation statute unconstitutional, based on Troxel, even though Maryland’s statute was not as broad as Washington's).

      . The statute specifically relates to a situation "when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any.” § 26-10A-30, Ala.Code, 1975.