Update on the Situation in Alabama

The marriage situation in Alabama continues to be very fluid, so here’s the latest as of Friday. After the federal judge in the case that struck down that state’s ban on same-sex marriage ordered one county probate judge to issue same-sex marriage licenses, many other counties began to follow suit even though this did not technically apply to them.

Almost two-thirds of the state’s probate courts are now issuing marriage licenses to all couples, gay and straight.

That’s a big change from Monday, when fewer than 10 counties were issuing marriage licenses to same-sex couples. But a ruling yesterday by U.S. District Court Callie V. Granade nudged many probate judges sitting on the fence to accept an earlier ruling overturning the state’s ban on same-sex marriage.

Granade ruled yesterday that Mobile County Probate Judge Don Davis had to issue marriage licenses to gay couples who had been waiting in the office since Monday. Like many probate judges around the state, Davis had elected to close marriage offices in the wake of conflicting rulings from Judge Granade and Alabama Supreme Court Chief Justice Roy Moore. On Sunday night, Moore instructed probate judges not to follow Granade’s January order to issue marriage licenses to same-sex couples.

Only 26 of the state’s 67 counties were either not issuing licenses this morning or refusing comment. In Shelby County and five other counties, officials will only issue marriage licenses to couples of the opposite sex. In many of the counties that are still holding out, probate judges said they would probably reopen offices early next week, and begin selling licenses to same-sex couples.

There are already suits and motions being filed in the holdout counties to force them to comply with the federal court order. But the bigots are not giving up. Liberty Counsel has asked the Alabama Supreme Court to take up the case and they have agreed to do so, telling the parties to file briefs this week.

The Alabama Supreme Court late Friday agreed to consider a petition by two groups seeking a halt to the issuance of same-sex marriage licenses by state probate judges.

Meanwhile another group, which supports same-sex unions, also asked justices Friday to toss out the petition. And one Alabama Supreme Court justice wrote he believes an order halting the issuance of licenses could inject more confusion and, possibly, subject more probate judge to federal lawsuits.

In a 6-2 decision issued late Friday, the Alabama Supreme Court set up a schedule next week for the different sides to file their answers and briefs on the request by the Alabama Policy Institute and Alabama Citizens Action Program. The court, however, did not say whether it would hold a hearing for oral arguments before responding to the petition.

The order stated the briefs by probate judges should address issues raised by the petition, including whether the state Supreme Court even has jurisdiction to hear the petition.

Answers and briefs by probate judges are to be filed by 5 p.m. Feb. 18 and then ALCAP and API will have a chance to respond by 5 p.m. Feb. 20.

The key question here is whether the state high court will officially attempt to overrule a federal court on the matter (Roy Moore’s letter telling probate judges they could ignore the federal court was not an actual ruling from the court). Time will tell.

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What Are Your Thoughts?leave a comment
  • tbp1

    Moore and his ilk are fighting a rear guard action and seem to know it, but are determined to inflict as much damage as possible before the war is lost.

  • eric

    Crazy. Since Moore issued the directive as a State Supreme Court justice that wasn’t an actual ruling, couldn’t the other members of the State Supreme Court do the same and just come out with a majority statement repudiating Moore’s directive? No court case necessary for that.

    My guess is that even if they could, they wouldn’t for political purposes. They’re going to want to couch their support for Moore (worst case), refusal to act, or admission that federal law trumps state law (best case) in obsure legalese so that they can get reelected. With the jurisdiction question they’re asking, it sure sounds to me like they are setting themselves up for a refusal to act.

  • D. C. Sessions

    Davis had elected to close marriage offices in the wake of conflicting rulings from Judge Granade and Alabama Supreme Court Chief Justice Roy Moore.

    Did I miss something here? Was there a case before Moore’s court that gives him jurisdiction? For that matter, does he have the power to rule ex parte and as the sole judge in Alabama cases?

  • http://mostlyrational.net tacitus

    I believe Moore is correct in the narrow sense that the current federal court order does not apply to probate judges (except the one in Mobile directly mentioned in the updated statement). But even he knows the writing is on the wall, and when the Supreme Court rules, Alabama will have to abide by the order, but in the meantime, he’s going to milk the situation as much as possible.

  • John Pieret

    In another development, Jefferson County Probate Judge Alan King has asked to intervene in the Federal court case (as a way to be named as a party and, therefore subject to the injunction). He is basically asking the Federal court to protect him from any action taken by the Alabama Supreme Court.

    http://www.al.com/news/birmingham/index.ssf/2015/02/jefferson_county_probate_judge_1.html

    Congratulations Judge Moore! I am told that Ringling Brothers is interested in hiring the Alabama Judiciary to replace its present clown car and crew.

  • John Pieret

    The ultimate solution is for Judge Granarde to arrange to make Moore, the Alabama Supreme Court and the Governor parties to the case (their offices are all in the Southern District of Alabama and they are, therefore, all within her certain jurisdiction) and enjoin them all from further interfering with her injunction and/or interfering with other judges who are following their oaths to uphold the US Constitution.

  • eric

    @6: If the probate judges continue to fall in line on their own, I think that’s actually a better solution. IMO, ignored is much better than enjoined.

  • John Pieret

    eric:

    Up to now, I’d agree. But with the full Supreme Court getting involved, the situation facing the judges gets more severe. Until now, Moore had based his order on his role as administrative head of the Alabama judiciary but basically admitted that he had no right in that role to discipline judges and therefore threw the onus for that on the Governor, who promptly said he wasn’t going to anything. Disobeying an order of the Supreme Court, on the other hand, as Judge King said in his motion, could subject a judge to contempt citations, sanctions and possible impeachment.

  • http://www.pandasthumb.org Area Man

    In a 6-2 decision issued late Friday, the Alabama Supreme Court set up a schedule next week for the different sides to file their answers and briefs on the request by the Alabama Policy Institute and Alabama Citizens Action Program.

    Why all the fuss? Can’t Dictator Moore just tell everyone what the law is? Since he unilaterally declared the Supremacy Clause of the U.S. Constitution to be null and void, we certainly don’t have to worry about what those fag-loving federal judges think.

  • http://www.pandasthumb.org Area Man

    Disobeying an order of the Supreme Court, on the other hand, as Judge King said in his motion, could subject a judge to contempt citations, sanctions and possible impeachment.

    Yeah, imagine the guy disobeying a higher court ruling and getting removed from office as a result. Unthinktastic!

    http://en.wikipedia.org/wiki/Roy_Moore#Removal_from_office

  • eric

    @8: Oh I agree a formal ruling will have all the force of law. Still, it would’ve been, I think, more valuable for Moore to speak, then the federal judge speaks for a county-specific case, and then everyone listens to the federal judge and ignores Moore. That would send a powerful message, perhaps even more powerful than the AL SC (SCOAL? Too bad we can’t somehow make it SKOAL or SCROTAL) slapping him down.

    Or did you mean that now that the federal judge has ruled, the situation is now more employment-dangerous for probate judges, so SCOAL ought to rule fast to get them out of potential trouble?

  • John Pieret

    eric:

    Not the latter, for sure.

    Moore keeps harping on the fact that only parties to the action are bound by the injunction, which is technically true but also a two way street. I find it hard to believe that the Alabama Judiciary, despite the presence of Moore, is batshit crazy enough to penalize a judge for following a Federal court injunction directly imposed on him, no mater what the Supreme Court says. The technical problem is that she may only be able to protect the individual judges who are in the Southern District, since her orders are not technically binding outside the district. That’s why I said the ultimate solution is to add Moore and the court and the Governor, all of whom she has jurisdiction over.

  • Erp

    I’m not a lawyer, but, I suspect part of the confusion is the role of ‘probate judge’ in Alabama. They have both judicial functions and executive functions (issuing licenses for marriage, etc fall under the latter category) and they are not required to be lawyers and they are elected. They can be removed either by losing an election or impeachment. Impeachment can be started by a grand jury, the Alabama Supreme Court, or the Alabama Governor or by 5 taxpayers of the county (though the last have to put up a bond to pay the cost if they lose).

    This is a chess game and I suspect Alan King, the senior probate judge for Jefferson county (the only county in Alabama with two probate judges and also apparently the busiest) is as savvy a player as anyone in Alabama. He is also a lawyer (though wisely has outside counsel for this) and been a probate judge since 2000. The other probate judges issuing licenses for all couples will probably follow his lead.

  • http://www.clanfield.net janiceintoronto

    It’s like watching the Iraqis setting fire to the Kuwait oil wells as they retreated.

  • abb3w

    @2, eric

    My guess is that even if they could, they wouldn’t for political purposes. They’re going to want to couch their support for Moore (worst case), refusal to act, or admission that federal law trumps state law (best case) in obsure legalese so that they can get reelected.

    My guess is that it might be that they wouldn’t, because doing so would be for political purposes. Instead, they’re forcing it to go through as a judicial question — where their sounding off is proper and authoritative, in contrast with the less-than-kosher actions by Justice Moore. If so, that would seem to suggest it’s more likely that the other judges are lining up to acknowledge the legal heirarchy.

    @5, John Pieret

    In another development, Jefferson County Probate Judge Alan King has asked to intervene in the Federal court case (as a way to be named as a party and, therefore subject to the injunction).

    I wonder how much precedent there is for that sort of motion? “Your honor, I’d like to intervene in this case so I can be on the side that’s lost.”