The Mobile County, Alabama, Probate Court is not issuing marriage licenses to anybody, as Judge Don Davis tries to figure out exactly what he is supposed to be doing. On January 26, U.S. District Judge Callie Granade ruled in a lawsuit brought by a same-sex couple in Mobile County seeking a marriage license that they were entitled to receive one because the state’s ban on same-sex marriage violated the 14th Amendment of the U.S. Constitution. She stayed her ruling until February 9 to give the state a chance to seek a stay pending appeal from a higher court. The defendant in that case, Alabama Attorney General Luther Strange, asked the U.S. Court of Appeals for the 11th Circuit and then the U.S. Supreme Court to stay Judge Granade’s order, but was turned down. Strange appealed the district court’s order to the 11th Circuit, but that court indicated it would not take up the case while a marriage equality case is being considered by the U.S. Supreme Court.
At the plaintiffs’ request, Judge Davis was added as a defendant in the case, and Judge Granade clarified her order to require Davis to issue licenses to the plaintiffs, including some additional same-sex couples who had joined the lawsuit. However, the night before Judge Granade’s order was to go into effect, Alabama Supreme Court Chief Justice Roy Moore, contending that the federal court had no authority to order state probate judges to issue marriage licenses to same-sex couples, had sent all the Probate Judges an order not to issue such licenses.
When Judge Granade’s temporary stay was lifted and Davis was then added as a defendant, Davis and a few other probate judges did issue licenses, as Judge Granade also supplemented her earlier rulings to make clear that her declaration that the same-sex marriage ban was unconstitutional was binding on all probate judges, not just Judge Davis. Two organizations opposed to marriage equality then filed an emergency petition with the Alabama Supreme Court, purporting to represent the interest of the state, calling on the court to stop the probate judges from issuing marriage licenses to same-sex couples. After seeking responses from the probate judges, the Supreme Court issued a decision on March 3, a majority voting to order the probate judges not to issue licenses to same-sex couples.
In response to the Alabama Supreme Court’s call for the probate judges to respond to the emergency petition, Judge Davis had submitted a request to be dismissed from the lawsuit because he was subject to Judge Granade’s order. The court directed him to advise the court by letter within two days “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue.” After asking the court for more time to respond, Judge Davis submitted a response on March 9, asking to be excused from complying with the Alabama Supreme Court’s order, “out of concern that doing so would require him to violate the federal district court order.”
The Alabama Supreme Court responded to this with a new order on March 11, refusing to excuse Davis from complying with its order not to issue marriage licenses to same-sex couples, as the Supreme Court decided that Judge Granade’s order required Davis to issue marriage licenses to the plaintiffs in that case only. Wrote the court, “Federal jurisprudence contemplates that a federal district court adjudicates the obligations, if any, of a defendant or defendants only with respect to the plaintiff or plaintiffs in the case before the court.” Since the case had not been brought as a class action on behalf of all those seeking marriage licenses, reasoned the court, Judge Granade’s order could not require Davis to issue licenses to any other couples.
Thus, ruled the court, Davis was subject to its March 3 order. The court commented that Alabama statutes say that probate judges “may” issue “marriage licenses.” “To the extent he exercises this authority, ” concluded the court, “he must issue those licenses in accordance with the meaning of the term ‘marriage’” as defined in Alabama law. This might be construed as a broad hint that Davis could avoid violating both orders by keeping the marriage window in his courthouse shut until this matter is ultimately resolved.
This ruling placed Davis in a dilemma, since he was not sure whether the Alabama Supreme Court had correctly determined his obligations under Judge Granade’s order. So he kept the marriage window closed in his courthouse as the Supreme Court had obliquely suggested, and went back to Judge Granade with an emergency motion to stay her ruling, because he had been “placed in a potential conflict” between her order, the Supreme Court’s order, and Chief Justice Moore’s order.
“Although the court would agree that the developments in these same-sex marriage cases has at times seemed dizzying,” wrote Judge Granade in a new order issued on March 16, “the court finds that Judge Davis has not shown that a stay is warranted.” Under the usual test for staying an order, the party seeking the stay has to show that he is likely to win the case on the merits, but Davis was not even arguing that this was likely, and Judge Granade found that he had also failed to show that denying the stay would cause “irreparable harm” to him. Although Davis pointed to the Alabama Supreme Court’s refusal to exempt him from its order, the court pointed out that Davis was bound by the federal court’s order. Davis also pointed out that a federal judge elsewhere in the state had put a new marriage equality case “on hold” pending the U.S. Supreme Court’s anticipated decision, but Granade responded that the stay in that case “has no bearing on the instant case.”
Meanwhile, the plaintiffs had filed a motion to expand this case to a class action. On March 18, Granade granted the motion. Acknowledging that Attorney General Strange had opposed making this case a class action, Granade rejected Strange’s argument that the case had gone on for too long to suddenly expand it beyond the existing parties, pointing out that the case “as only progressed to the preliminary injunction stage and although the current Plaintiffs have apparently all received marriage licenses the licenses are of little value if they are not recognized as valid in Alabama. Under the circumstances,” she concluded, “allowing the amendment is not likely to significantly delay resolution of the case for the current parties. The requested amendment will not disturb any schedule set by the Court in this case.”
However, she also acknowledged that the plaintiffs had yet to submit a statement of the basic facts underlying their request for class certification, so the motion to certify the class “is not yet ripe.” The judge determined that the plaintiff’s motions had said enough to “allege class claims,” the court “will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.” She gave Attorney General Strange until March 23 to respond directly to the plaintiff’s motion to certify the class. Once a state-wide plaintiff class is certified, a state-wide defendant class of all probate judges would be a logical extension of the case.
While the Attorney General is battling it out in court, the legislature, anticipating that eventually Alabama is going to have to allow same-sex couples to marry, is considering a response to how that will be implemented. The state’s House of Representatives voted on March 12 to approve a bill that would excuse ministers and judges from performing any marriage ceremonies to which they had religious objections. One expects other legislative proposals will follow.Tags: Alabama gay marriage, Alabama same-sex marriage, marriage equality litigation, Probate Judge Don Davis, Strawser v. Strange, US District Judge Callie Granade