Federal Court orders Alabama judge to issue gay-marriage licenses
By Marcia Coyle, From The National Law Journal
An Alabama federal judge on Thursday, attempting to end days of confusion over whether the state’s probate judges were required to issue same-sex marriage licenses, ordered a Mobile County judge to move forward with the licenses.
Judge Callie Granade of the Southern District of Alabama issued her order in Strawser v. Strange following a hearing during which attorneys for four gay and lesbian couples sought a preliminary injunction or temporary restraining order directing Mobile County probate judge Don Davis to issue the licenses.
“Plaintiffs’ inability to exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant,” Granade wrote. “This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.”
Granade ruled on Jan. 23 that the state’s ban on same-sex marriage violated the Constitution and she ordered state officials to cease enforcing the ban. Same-sex marriages were expected to begin Feb. 9 when a temporary stay of her decision to allow the state to appeal expired.
The U.S. Supreme Court, with two justices dissenting, had refused the state’s request to put her decision on hold until the justices ruled on the constitutionality of marriage bans in four cases that they will hear in April. The U.S. Court of Appeals for the Eleventh Circuit also declined to block the district judge’s ruling.
However, legal confusion over the effect of Granade’s order erupted the evening before marriages were to begin. Roy Moore, chief justice of Alabama, ordered state probate judges not to issue the marriage licenses. He claimed that the federal court order only applied to the state attorney general, who was a party to the original constitutional challenge, and it did not reach the probate judges.
Randall Marshall, legal director of the ACLU of Alabama, who argued during Thursday’s hearing, said in a statement:
“Judge Granade’s ruling confirms that the U.S. Constitution requires Alabama probate judges to issue marriage licenses to all qualified couples, gay and straight. We hope state and local officials will recognize that their first obligation is to comply with our federal Constitution and will move quickly to follow the court’s ruling so that all couples in Alabama will be able to share in the dignity and protection that marriage provides.”
The Alabama Supreme Court on Wednesday night refused Davis’ request for clarification of Moore’s order. The court, with Moore recusing himself, said Davis was actually seeking an advisory opinion and state law authorized the court to give that type of opinion only when requested by the governor or the state Legislature. It dismissed his petition.
In a concurring opinion, one justice, Michael Bolin, described the Alabama situation as a “legal circus.” Bolin blamed Moore for issuing his order, Granade for not adding all probate judges as defendants in the original suit, and the Eleventh Circuit and U.S. Supreme Court for not staying Granade’s decision when the high court was only four months away from hearing the constitutional arguments. Only justices Clarence Thomas and Antonin Scalia, who would have granted a stay of Granade’s decision, exercised the appropriate restraint, he wrote.
As of Thursday morning, probate judges in 23 of Alabama’s 67 counties were issuing marriage licenses to same-sex couples, according to Human Rights Campaign. Judges in 18 counties were giving licenses only to heterosexual couples, while no licenses were being issued to anyone in 26 counties.
During Thursday’s district court hearing, an attorney for Davis said a probate judge who did not issue a same-sex marriage license was like a soldier “who steps on a mine” in Vietnam, the Press-Register of Mobile reported. Marshall of the ACLU said it was the Constitution, not Granade’s order, that compelled the probate judges to act.
Amanda Frost, a law professor at American University Washington College of Law, said in an email to the NLJ: “[I]t is clear that Judge Davis is required to issue the marriage license or face contempt charges. However, in my view, that order would not be sufficient to hold other Alabama probate judges in contempt should they refuse to do so.”
IMAGE: Robert Povilat, left, and Milton Persinger, comfort each other after hearing that for a second day, the Mobile County Probate office won’t issue marriage licenses on Tuesday Feb. 10, 2015 in Mobile, Ala. Photo: Sharon Steinmann/AL.com/AP
