U.S. District Judge Callie V. S. Granade ruled on January 23 that Alabama’s constitutional and statutory ban on same-sex marriage violates the 14th Amendment. Her ruling in Searcy v. Strange, 2015 U.S. Dist. LEXIS 7776 (S.D. Alabama), released on a Friday afternoon, did not make any mention of a stay pending appeal, but the public announcement of its release came too late in the day for same-sex couples to apply for licenses at county clerks’ offices, which were closed for the weekend. Anticipating the possibility that same-sex couples would seek licenses when offices opened on Monday morning, Attorney General Luther Strange filed a motion seeking a stay on Friday night, arguing that the state should not be required to issue marriage licenses to same-sex couples unless the Supreme Court ruled in favor of same-sex marriage in a decision that is widely-expected to be issued late in June.
Alabama is in the same federal circuit as Florida, the 11th, where a federal court declared that Florida’s same-sex marriage bans are unconstitutional last summer but twice stayed its ruling, first to see what the Supreme Court would do with several pending petitions in marriage equality states (which were denied on October 6), and then to allow the state to seek a stay of the ruling from the 11th Circuit. In December, a panel of the 11th Circuit refused to stay the Florida ruling and the Supreme Court also refused to stay it, with two justices, Antonin Scalia and Clarence Thomas, noting that they would have granted the stay. As a result, the Florida ruling went into effect on January 5, even though the 11th Circuit has not yet ruled on a marriage equality case. This sequence of events suggests that Alabama should not be able to get a stay. The one intervening event that might suggest otherwise is the Supreme Court’s announcement on January 16 that it was granting petitions from plaintiffs in four states to review the 6th Circuit’s decision rejecting constitutional challenges to same-sex marriage bans in Ohio, Michigan, Tennessee and Kentucky, thus creating an argument that any new developments in lower federal courts on marriage equality should wait for the Supreme Court’s ruling in that case. However, although the Supreme Court had not yet conferenced the various petitions from the 6th Circuit at the time it denied the Florida stay request on December 19, the justices were certainly aware of those petitions and the likelihood that they would be granted when it denied that stay. Since the Supreme Court does not explain its decisions on stay motions, however, lower courts are left to guess at what they should mean for subsequent stay requests.
The Attorney General’s motion for stay relies heavily on the many stay decisions that were issued by lower federal courts during 2014 on the ground that the possibility of Supreme Court review required maintaining the “status quo” rather than allowing a marriage ruling that might ultimately be reversed go into effect. Attorney General Strange repeated the arguments of his colleagues from other states, asserting that allowing same-sex marriages prior to a final definitive ruling could lead to “confusion” about the status of the marriages. A few courts have now ruled, however, that there is no confusion about the status of such marriages, upholding the validity of same-sex marriages performed in Utah and Michigan under analogous circumstances.
Judge Granade, who was appointed to the bench by President George W. Bush in 2001 and took office in 2002, wrote a brief but decisive opinion, shorter than almost all the marriage equality opinions released by federal district judges since the first in Utah in December 2013. Her bottom line was that the state had not articulated a rational basis for excluding same-sex couples from marriage, much less the compelling interest that would be necessary to sustain a deprivation of the fundamental constitutional right to marry.
The case was brought on behalf of Cari D. Searcy and Kimberly McKeand by private counsel, and is one of several marriage equality cases pending in Alabama. The women were legally married in California. McKeand bore a son through donor insemination and the couple wanted to have the child formally adopted by Searcy under a provision of Alabama’s adoption law that allows a person to adopted their “spouse’s child,” but she was turned down by the Mobile County Probate Court, which ruled that Alabama’s “Sanctity of Marriage Amendment” and “Marriage Protection Act” barred the court from treating Searcy as McKeand’s “spouse.” This denial was upheld by the Alabama Court of Civil Appeals and the women turned to federal court, seeking both a ruling that the state’s marriage ban is unconstitutional and an order prohibiting the state from enforcing it.
In blatant defiance of the 1st Amendment of the U.S. Constitution, the Alabama marriage amendment refers to marriage as “a sacred covenant,” and thus belies the religious motivations of its framers, but the lawsuit by Searcy and McKeand did not attack it on that basis. Instead, building on the wave of marriage equality rulings issued by district courts in the wake of the Supreme Court’s 2013 decision striking down the Defense of Marriage Act, U.S. v. Windsor, they asserted a violation of the 14th Amendment Due Process and Equal Protection Clauses.
The state’s first line of defense was to argue that the lawsuit must be rejected because of Baker v. Nelson, in which the Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage in 1972, saying that it did not raise a “substantial federal question.” Judge Granade rejected this argument, pointing out that almost all of the federal courts that have ruled in marriage cases since 2013 have found it to have been superseded by later “doctrinal developments.” At the appellate level, the only outlier from this virtual consensus has been the 6th Circuit Court of Appeals, whose November 7 ruling will be reviewed by the Supreme Court. The 2nd, 4th, 7th, 9th, and 10th Circuits have all agreed that Baker is no longer a binding precedent on lower federal courts.
Turning to the 14th Amendment arguments, the judge noted that in the 11th Circuit she is bound to apply the rationality test in equal protection cases involving sexual orientation discrimination because of prior decisions by the circuit court. She observed, however, that “the post-Windsor landscape may ultimately change the view” that the 11th Circuit had previously expressed, although “no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.” (The 9th Circuit has disagreed, ruling last year that because of Windsor lower federal courts must apply “heightened scrutiny” to sexual orientation discrimination claims.)
In a case involving a fundamental right, however, a higher level of scrutiny is applied both under due process and equal protection theories. “Numerous cases have recognized marriage as a fundamental right,” she wrote, “describing it as a right of liberty, of privacy, and of association.” She quoted from a series of Supreme Court decisions describing the “strict scrutiny” that must be applied in reviewing laws that deprive individuals of this liberty. Under that approach, the defendant “cannot rest upon a generalized assertion as to the classification’s relevance to its goals,” she wrote, quoting from a 1989 Supreme Court opinion concerning racial preferences in government contracting. Instead, the government’s burden is to show that the law is “narrowly tailored” to achieve a “compelling interest.”
The state’s policy argument in support of its ban was based on its asserted “legitimate interest in protecting the ties between children and their biological parents and other biological kin.” This did not impress Judge Granade as sufficient. She wrote, “The Court finds that the laws in question are not narrowly tailored to fulfill the reported interest. The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provision in question singles out same-sex couples and prohibits them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states.”
“The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote,” she continued. “There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.”
The judge also pointed out that if the state’s goal is “promoting optimal environments for children,” it was defeating its goal. “Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex children,” she asserted. She quoted from Supreme Court Justice Anthony M. Kennedy’s opinion in U.S. v. Windsor, where he asserted that a law denying recognition to same-sex marriages “humiliates thousands of children now being raised by same-sex couples” and “brings financial harm” to them. “Additionally,” she wrote, “these laws further injure those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.”
Having found the bans unconstitutional, Judge Granade granted the plaintiffs’ motion for summary judgment and denied the state’s contrary motion, ordering that the defendant, Attorney General Luther Strange, who was sued in his capacity as the state’s chief legal officer, be enjoined from enforcing those laws. The judge made no mention of whether the state had taken the precaution of asking for a stay as part of its summary judgment motion papers, and did not respond immediately to the motion for stay filed several hours later by the Attorney General’s office.
According to the organization Freedom To Marry, the Alabama ruling is the 60th decision in favor of marriage equality that has been rendered since the Supreme Court’s 2013 DOMA decision, mostly by federal trial judges. On the other side of this equation are a mere handful of state and federal trial-level rulings.