On March 3 the Alabama Supreme Court “pulled a fast one,” issuing a per curiam decision seeking to effectively override some federal district court opinions, ordering the probate judges throughout the state to continue enforcing Alabama’s constitutional and statutory prohibitions on same-sex marriage even though the federal district court has declared them unconstitutional, and both the 11th Circuit and the Supreme Court had denied Attorney General Luther Strange’s petition for a stay pending appeal to the 11th Circuit. (The 11th Circuit, by the way, quickly indicated that it would take no action on Strange’s appeals until after the Supreme Court rules on marriage equality in June.) The case is called Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program and John E. Enslen, in his official capacity as Judge of Probate for Elmore County (In re Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.). (King is president of the state’s Probate Judges Association, so earns the honor of being listed first among the defendant probate judges.)
What the Alabama Supreme Court did, in effect, was to conduct a virtual judicial review of the federal district court’s decision and try to reverse it, even though the parties to that decision were not before the court. The Attorney General, named defendant in those district court cases, appealed them to the 11th Circuit, not to the Alabama Supreme Court, which has no authority to review federal district court decisions. Instead, this case was initiated by non-parties against non-parties. Two organizations, Alabama Policy Institute and Alabama Citizens Action Program, both active opponents of LGBT equality, purported to petition the court for “emergency” relief on behalf of the state (without securing the permission or authorization of the state to do so), naming as defendants all of the state’s probate judges, seeking an order from the court directing the probate judges to continue enforcing the state’s ban on same-sex marriage, despite the federal district court’s decision finding the ban unconstitutional. One of the probate judges, John E. Enslen of Elmore County, signified to the court that he agreed with the position of the Petitioners, so the court repositioned him as a co-plaintiff, which at least theoretically bolstered the proposition that at least one of the Petitioners might have actually standing (a direct personal interest) to raise the issues posed by the case – but just theoretically.
What the Petitioners were asking the Alabama Supreme Court to do was to assert its independent authority to construe the federal constitution, unbound by the federal district court’s decision. This raises interesting issues of federalism, hierarchy, precedent, and judicial authority. For one thing, it is totally clear that a decision by a federal district court is not precedential, in the sense that it does not bind or control the decisions of any other courts. As a trial court, a federal district court can only bind the parties to the case. If its decision is appealed and upheld by the court of appeals, that creates a binding precedent on federal district courts throughout the circuit, which consists of the states of Florida, Alabama and Georgia. If the case goes to the U.S. Supreme Court, which affirms the district court on the merits, that would create a national precedent that would bind not only all lower federal courts but also all state and local courts, since state court rulings on federal constitutional questions are ultimately appealable to the U.S. Supreme Court.
So, in a sense, Alabama Chief Justice Roy Moore (who recused himself from participating in this proceeding, and appropriately so since his “open letter” to Governor Bentley and subsequent “Order” to the Probate Judges really turns him into a de facto party in this case) was correct to assert that the Alabama courts do have the authority (recognized in the Constitution) to construe the federal constitution, and are not, literally speaking, bound by the federal district court’s decision on the merits. An Alabama court can reach the opposite conclusion from a federal district court about whether Alabama’s anti-gay marriage policy violates the 14th Amendment, and the only federal court with authority to overrule such a state court decision is the Supreme Court. Which is why, considering the emotional resistance to marriage equality in Alabama, it would have most likely been sensible for the 11th Circuit and/or the Supreme Court to grant a stay of the district court’s ruling. The 11th Circuit didn’t do so, however, because they got the message from the Supreme Court’s prior refusal to stay the Florida ruling. If the Supreme Court was willing to allow the Florida decision to go into effect, there was no intellectually respectable way to distinguish the situation in Alabama, other than to note that the Supreme Court had in the meantime agreed to review (and, probably reverse) the 6th Circuit’s anti-same-sex marriage ruling.
While it is true that the plaintiffs in these marriage equality cases, and all other same-sex couples in Alabama seeking to marry or have their existing marriages recognized, do suffer an irreparable injury every day that their 14th Amendment rights are denied, nonetheless the U.S. Supreme Court has agreed to review the 6th Circuit’s decision in DeBoer v. Snyder, and judging by its actions on stay petitions ever since October 6, it seems highly likely that sometime in June the Supreme Court is going to issue a ruling in favor of marriage equality by a vote of at least 5-4, and possibly even 6-3 or 7-2, although these bigger majorities seem less likely. Thus, one might well just counsel “patience” for the same-sex couples in Alabama. Wait a few months longer and your rights will be vindicated. Even Chief Justice Moore, for all his fulminating about the Divine creation of the Sacred institution of marriage (as so identified in Alabama’s Sanctity of Marriage Amendment), seems to recognize that the Supreme Court’s ruling under the 14th Amendment would be binding on Alabama courts (even though he would dispute its correctness as a matter of constitutional interpretation).
In the meantime, however, one can question the bona fides of the Alabama Supreme Court’s 7-1 decision. The dissenter, Justice Greg Shaw, did not state any disagreement with the court’s analysis of the federal constitutional issues. Rather, he dissented from the court’s decision to take the case and issue a ruling, because he believed the case was not properly before the court and it did not have jurisdiction to issue the ruling that it issued.
Justice Shaw explained why it was inappropriate for the petitioners to bring their case directly to the Supreme Court, since what they are seeking in this case does not fall within the “original jurisdiction” of the Supreme Court. “Original jurisdiction” means cases that can be originated in the Supreme Court, rather than brought to that court as an appeal from a lower court. The majority of the Supreme Court purports in its opinion to be acting in its role of supervising the operation of the state courts, since what they are doing is issuing an order to the probate judges. But, as Justice Shaw points out, when the probate judges are issuing marriage licenses, they are not acting in a judicial capacity, but more in a clerical capacity, performing ministerial acts. In most states, this function is confided to county clerks, who are elected in some places and not in others. Some states, however, have set things up so that elected probate judges perform this clerical function by direction of the legislature. It is not a function that calls for judging; it is a function that employees of the probate court carry out in much the same way that employees of an elected county clerk in other states would receive marriage license applications, check that the form was properly filled out, and then issue the license. No real “judging” takes place. No exercise of legal analysis or judicial discretion is required. Thus, it is not a legitimate exercise of the Supreme Court’s role of supervising the state judiciary to direct probate judges on how they are to issue marriage licenses. It is not part of their “original jurisdiction” and it is not proper for them to take this direct petition that has not been considered first by a lower state trial court.
It is worth observing that the U.S. District Judge, Callie Granade, has not issued an order requiring the probate judges of the state to issue marriage licenses to same-sex couples. She has, in exercising her judicial authority in the cases before her, ordered one probate judge in Mobile County to issue licenses to same-sex couples or to recognize their marriages upon concluding in two specific cases that the state’s restrictions on doing so violate the federal constitution. When asked to clarify the scope of her Orders, she made clear that only the probate judge who was a defendant in the cases before her was literally bound by her Order, but pointed out, of course, that if the state’s ban on same-sex marriage was unconstitutional, as she had found, any probate judge in the state who refused to issue a license or recognize a valid same-sex marriage could open themselves to a federal constitutional lawsuit, with attendant expenses. On that basis, most of the other probate judges in the state started issuing the licenses. (By one count, as many as 48 out of 67, covering most of the state’s population by county.) And this was not because one federal district judge had found the law unconstitutional. If her decision was an outlier, they might well have decided to take the risk and refused to issue the licenses. What is significant at this point is that her decisions in the two cases were relentlessly in the mainstream of American jurisprudence as it has developed over the past two years, consistent with the spirit of the U.S. Supreme Court’s decision striking down Section 3 of the Defense of Marriage Act and the subsequent rulings by four circuit courts of appeals and dozens of district courts in other states. The outliers, at this point, are the 6th Circuit’s decision that the Supreme Court has agreed to review, and district court decisions in Louisiana and Puerto Rico, that are being considered on appeal by the 5th and 1st Circuits. Otherwise, there is a solid foundation of precedent upon which Judge Granade based her rulings. So a probate judge put in the position of having to decide how to proceed would have to take all this history into account and decide whether they were likely to be the loser if sued for refusing to issue a license or recognize a marriage.
By purporting to invoke the “supervisory” authority of the Alabama Supreme Court, the petitioners were seeking to have that court order the probate judges to side with the federal “outliers,” even though the Supreme Court’s denials of stays communicate, without explanation, that the leading outlier, the 6th Circuit, is highly likely to be reversed in a few months. By issuing their opinion, in which they adopt the position of the outliers (citing to and quoting their opinions, as well as the dissenting opinions of a handful of federal circuit judges) in a thoroughly retrograde opinion that would probably earn a “D” if it was submitted as an answer to a final exam question in most contemporary Constitutional Law classes, the court is possibly trying to influence the U.S. Supreme Court by arguing in favor of upholding the 6th Circuit’s decision. One can’t tar them as totally non-professional; after all, their opinion is also consistent with a handful of opinions by other state high courts prior to the 2013 Windsor opinion, most notably the atrocious opinion issued by the New York Court of Appeals in Hernandez v. Robles, 7 N.Y.3d 338 (2006), which endorsed the peculiar “responsible procreation” rationale and entertained a version of equal protection analysis virtually unrecognizable to most constitutional law scholars.
By issuing this Order, the Alabama Supreme Court “gives the finger” to the federal district court and proclaims its independence as an interpreter of federal constitutional law. Most probate judges in Alabama will be reluctant to defy any order of their state’s Supreme Court, even if they were willing to ignore the order issued on February 8 by Chief Justice Moore (whose authority on his own motion to issue such an order is completely unclear). Soon the U.S. Supreme Court will rule, and the Alabama Supreme Court’s decision will be relegated to a historical artifact of some embarrassment to the state’s legal profession. This is not to say, however, that the spirit behind it will necessarily be vanquished by a U.S. Supreme Court decision. It would not be surprising to see localized outbreaks of defiance around the country, and not just contained to those states that have yet to experience marriage equality. (For example, a state judge in Tucson, Arizona, has reportedly refused to recognize an out of state same-sex marriage for purposes of a divorce proceeding, even though the state decided not to appeal a federal district court marriage equality ruling last year in light of the 9th Circuit’s decision in Latta v. Otter. The judge there is channeling the Alabama Supreme Court’s argument: that as a state trial judge he is not bound by a federal district court decision, or even a 9th Circuit decision.) One would hope, however, that a U.S. Supreme Court decision would put an end to the matter.