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Appeals Courts Issue New LGBT-Related Rulings

Posted on: April 26th, 2017 by Art Leonard No Comments

Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

Roy Moore Loses Reinstatement Appeal before “Alabama Supreme Court”

The Alabama Supreme Court normally consists of seven justices elected by the people of the state, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal that ruling to the state’s Supreme Court, all of the other justices recused themselves. What to do?

The Supreme Court invoked a special procedure to authorize the Acting Chief Justice (who was appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Bentley (who has since resigned because of a sex scandal) to create a substitute supreme court to consider Moore’s appeal. They assembled a list of all the retired judges in the state who were deemed “capable of service,” then conducted a lottery to compile a list of fifty potential judges, with the first seven names drawn to make up this special substitute version of the court unless one or more recused themselves or were disqualified for some other reason, in which case they would go back to the list of 50 until they had a full bench.

Moore was suspended because of his activities in opposition to marriage equality. After U.S. District Judge Callie Granade ruled on January 23, 2015, that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action.  He undertook various efforts to block implementation of Judge Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.  As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.

As the marriage equality issue rose through the courts to the U.S. Supreme Court’s June 26, 2015, Obergefell v. Hodges ruling, finding a federal constitutional right for same-sex couples to marry, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the evil day when same-sex marriage might be fully accepted in Alabama. Although he recused himself from some of the Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in the court’s decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. But Moore wrote separately from the rest of the court, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.

This led to allegations that he was violating several provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.

In this appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended that he had not violated any of the judicial ethical rules. He also contended that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long: far longer than any past disciplinary suspension of any sitting judge.

The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”

This might not be the end for Moore as a “public servant,” however. Earlier in his career he had been ejected from the state supreme court for defying a federal court order to remove a 10 Commandments Monument he had installed in the lobby of the Supreme Court building.  He bided his time and eventually came back and won election to a new term as Chief Justice.  On April 26, he announced that he would enter the contest for the U.S. Senate seat that was vacated by Jeff Sessions when he became Trump’s Attorney General.  Former Governor Bentley had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election, and Strange has already announced he will be a candidate for the Republican nomination.  The deadline for candidates to qualify for the primary is May 17 and the party primaries will be held on August 15.  If no candidate wins an outright majority for the Republican nomination, a run-off will be held September 26, and the general election is December 12.

Over $600,000 Awarded to Victorious Lawyers in Texas Marriage Equality Case

In an appeal that has been pending before a panel of the 5th Circuit Court of Appeals for more than a year, the court decided to reject an attempt by Texas Governor Greg Abbott, Attorney General Ken Paxton, and Commissioner John Hellerstedt of the Department of State Health Services to win a reduction of the large attorneys’ fees and costs awarded by U.S. District Judge Orlando Garcia to the victorious attorneys who represented the plaintiffs in the Texas marriage equality case, DeLeon v. Perry (now titled DeLeon v. Abbott).

Two same-sex couples filed suit in 2013 against then-governor Rick Perry and other state officials seeking the right to marry and to win recognition of same-sex marriages performed out of state. In February 2014 Judge Garcia ruled in favor of the plaintiffs, but the decision was stayed as the state appealed to the 5th Circuit.  That court put off oral arguments until shortly before the Supreme Court announced that it would consider appeals in marriage cases from the 6th Circuit.  Then the 5th Circuit delayed ruling until after the Supreme Court announced its Obergefell decision, which made the 5th Circuit appeal purely academic.  That court quickly affirmed Judge Garcia’s decision, making the plaintiffs “prevailing parties” who were entitled to seek an award of attorneys’ fees and costs.

Judge Garcia awarded fees of $585,470.30 and costs of $20,202.90, more than $600,000 in all. In December 2015, the new line-up of official state defendants filed their appeal.  The 5th Circuit panel issued a brief opinion upholding Garcia’s award, emphasizing that the trial judge has “broad discretion” to award fees and costs if the judge “provides a concise but clear explanation for its reasons for the fee award.”    In this case, the court found that this standard had been met, but one member of the court, Circuit Judge Jennifer Walker Elrod, issued a dissent on three points.

She objected first to awarding fees for time spent opposing a motion by an anti-gay group to intervene as a co-defendant so that they could make arguments that the state was unlikely to make in defending the statute. Although the plaintiff’s lawyers were successful in beating back the intervention effort, Judge Elrod thought the state should not be required to pay them fees for doing so, since the state had not supported the intervention effort and was not the “losing party” on that issue.

She also objected to awarding fees for time that the attorneys spent “interacting with the media.” Plaintiffs’ lawyers in controversial public interest cases frequently spend time cultivating the media to win favorable coverage of the litigation and help build public support for the resulting court decision.  That was a key part of the litigation strategy in the marriage equality cases, and arguably the successful media cultivation helped to move public opinion so that the ultimate Supreme Court decision and its implementation did not arouse widespread opposition.  But Elrod argued that awarding fees for that time was “improper.”  “Plaintiffs have offered no explanation for how the media-related tasks included in the fee award were directly and intimately related to their successful representation, or were aimed at achieving their litigation goals,” she wrote.  As such, the state should not have to pay for them.

Finally, she objected to awarding fees for much of the time spent by the plaintiffs’ attorneys in recruiting and assisting various amicus curiae (so-called “friends of the court’) to file briefs supporting the plaintiffs in the case. She would have denied fees for such time on the theory, articulated by the 11th Circuit in a prior case, that because “amici are not entitled to attorneys’ fees as a ‘prevailing party,’ it would not allow this result to be changed ‘by the simple expedient of having counsel for a party do some or all of the amicus work.’’”  She would, however, agree to order the state to pay for time that plaintiffs’ attorneys spent reviewing the amicus briefs after they were filed, because the issues and arguments raised by amici might come into play during the trial or appeals of the case.  But she rejected the view that soliciting amicus parties and helping the amici to prepare their briefs was part of the work of representing the plaintiffs.  This seems the least plausible of her objections, since lawyers consider the presentation of forceful amicus briefs, carefully coordinated to avoid inconsistent arguments and assure coverage of all potential points of argument, to be an integral part of their strategy to educate the court and provide significant supplementation to the evidentiary record.  The courts of appeals and the Supreme Court have cited amicus briefs in their opinions in favor of marriage equality, showing that they are not merely peripheral window dressing in the effort to achieve the plaintiffs’ litigation goals.

Judge Elrod stated her objections in terms of concepts rather than dollar amounts, not suggesting how much she would have reduced the fee award, and the per curiam opinion does not respond to any of her arguments. The state could seek Supreme Court review, and Elrod’s partial dissent implicitly encouraged this by contending that some of the points she raised involved departures from 5th Circuit precedent or created splits between the 5th Circuit and other Circuit courts on the basis for awarding fees to prevailing parties.  The Supreme Court is rarely interested in cases about attorneys’ fees, but a circuit split in a high profile case might catch its attention.

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.




Supreme Court Orders Full-Faith and Credit for Lesbian Co-Parent Adoption

Posted on: March 7th, 2016 by Art Leonard No Comments

The U.S. Supreme Court unanimously reversed a decision by the Alabama Supreme Court and ordered that Alabama courts accord “full faith and credit” to a lesbian co-parent adoption that was approved by a Georgia trial court.  The March 7 decision in V.L. v. E.L., No. 15-648, was reached without any oral argument before the high court, and the opinion was issued “per curiam” without any dissent from the Court’s conservative members.

The Alabama Supreme Court’s decision in E.L. v. V.L., issued on September 18, was a shocking departure from how courts normally deal with recognition of out-of-state adoptions.  The U.S. Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”  Since adoptions are judicial proceedings, the Supreme Court has always taken the view that the courts of one state must honor the court rulings of other states, with a narrow exception for situations where the courts of the other state did not have authority (“jurisdiction”) to issue the ruling.

In this case, a lesbian couple living in Alabama decided to have children together.  They wanted to protect the relationship between the children and their birth mother’s partner.  Since “second-parent” adoptions were not available in Alabama, they temporarily relocated to Atlanta, Georgia, where trial judges are willing to approve such adoptions, and obtained an order from the Superior Court there.  The birth mother specifically consented to allow her partner to adopt the children with the understanding that this would not affect her own parental status.  Although Georgia’s adoption statutes do not specifically authorize such an adoption, the trial judge — as have others in the trial courts in Atlanta — found that he could approve the adoption without cutting off the birth mother’s parental status.

Then the couple moved back to Alabama.  A few years later the women separated, and the birth mother cut off her former partner’s contact with the children.  The partner filed suit in an Alabama court, seeking confirmation of the Georgia adoption and “some measure of custody or visitation rights.”  The Alabama cour recognized the adoption and awarded temporary visitation while the case was pending.  The birth mother appealed, arguing that the court should not have recognized the Georgia adoption, claiming the Georgia trial court did not have jurisdiction to approve a “second-parent” adoption.  The Alabama court of appeals rejected that argument, but the Alabama Supreme Court accepted it, in a strange decision issued on September 18 that drew a sharply-worded dissent.

The plaintiff filed an emergency petition with the U.S. Supreme Court seeking to preserve her temporary visitation rights while urging reversal of the Alabama Supreme Court’s decision.  On December 14 the U.S. Supreme Court stayed the Alabama Supreme Court’s order, thus allowing continued visitation.

The Supreme Court’s March 7 action is called a summary reversal, because the Court issued a ruling on the merits of the appeal based on the petition for review filed by the plaintiff and whatever response was filed by the defendant, without calling for full briefing and oral arguments.   The speed with which the Court acted, as much as the short  opinion it issued, signaled clearly how wrong the Alabama Supreme Court ruling was.

The U.S. Supreme Court has never ruled directly on whether states are constitutionally required to allow same-sex partners to adopt in these situations, and this case did not call on the Court to make such a ruling.  Rather, the Court made clear that state courts are not entitled to second-guess how the courts of other states interpret their adoption statutes.

The Alabama Supreme Court had adopted an approach that would have gutted the requirement of full faith and credit, by asserting that if it disagreed with how a trial court in another state interpreted its adoption statute, it could find that the trial court did not have authority to render the decision and thus it was not owed full faith and credit. The U.S. Supreme Court rejected this theory out of hand.

“Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction ‘is to be presumed unless disproved,’” wrote the Court, quoting one of its earlier full faith and credit decisions. “There is nothing here to rebut that presumption,” wrote the Court, pointing out that neither the Georgia Supreme Court “nor any Georgia appellate court” had construed the state’s adoption statute to limit the authority of the state’s trial courts to approve adoptions “only if each existing parent or guardian has surrendered his or her parental rights.”

Echoing the objection by the Alabama Supreme Court’s dissenting justices, the Court remarked, “Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia adoption statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor common sense.”  Since the adoption judgment issued by the Superior Court “appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary,” concluded the Court, “It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.”

This ruling came just days after the Alabama Supreme Court reluctantly threw in the towel and issue an order dismissing a pending action brought by a county clerk seeking to prolong defiance of the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges. A year ago, months before Obergefell was announced on June 26, a federal trial judge in Alabama ruled that the state’s ban on marriage equality was unconstitutional and ordered a local probate judge to issue marriage licenses.

The resulting controversy led to an Alabama Supreme Court decision in a case filed by some probate judges, known as In re King, rejecting the argument that the state’s ban was unconstitutional and directing probate judges not to issue marriage licenses to same-sex couples, with the exception of the probate judge who had been directly ordered to issue such licenses by the federal court. After the Obergefell decision was issued, the Alabama Supreme Court asked the parties in that case to submit arguments about the effect of Obergefell on its prior decision and on the obligations of the state’s probate judges regarding marriage licenses.  As time dragged on with no ruling by the Alabama court, more and more probate judges began to issue licenses, and on January 6, Chief Justice Roy Moore issued an “administrative order” directing them not to issue the licenses until the Alabama Supreme Court ruled.

On March 4, the Alabama court dismissed the case in a one-sentence order, which was accompanied by “concurring opinions” totaling 169 pages by several of the judges, most prominently Chief Justice Moore.

All of the justices agreed that the Obergefell opinion is now the governing law, but Chief Justice Moore’s “special concurrence,” running almost 100 pages, is a fervent denunciation of the Obergefell decision, echoing the views of the dissenting U.S. Supreme Court justices. The foundation of his argument is that “marriage” is an institution ordained by God and that it is beyond the scope of judicial power to “redefine” it.  Some of his colleagues, unwilling to go that far, wrote or joined separate concurrences that make more traditional legal doctrinal arguments.  None was willing to defend the Obergefell decision on the merits, but Justice Greg Shaw, a dissenter from last year’s ruling, took pains to disassociate himself from criticisms of Obergefell on the ground that the Alabama Supreme Court has nothing to say about the issue once the U.S. Supreme Court has decided a constitutional question.

Wrote Justice Shaw: “The debate over the legal and moral propriety of same-sex government marriage will certainly continue; but that debate has necessarily shifted to the court of public opinion. The issue, for all practical purposes, is now a political one.  The genius of our Founding Fathers is reflected in our constitutional form of government, which dictates that whether Obergefell stands the test of time or ultimately finds itself cast upon the trash heap of history depends upon the people of the United States, who serve as the ultimate repository of political power and whose collective voices can be heard through their elected representatives at both the federal and state levels.  If there is to be a showdown with respect to this issue, it could never have been led by this Court.  Such a showdown must pit the judicial will of the highest court in the land against the greater political will of the people of this country.”

Shaw derided as “silly” Chief Justice Moore’s continuing argument that the Obergefell decision was binding only on the four states of the 6th Circuit, whose decision the Supreme Court had reversed, and Moore’s assertion that the Alabama Supreme Court’s ruling from last year upholding the state’s marriage ban is still in effect.  As far as Shaw is concerned, the probate judges are bound to comply with the order of the U.S. District Court issued last year, even before Obergefell was decided, which the trial judge had expanded to a class order running against all the probate judges in the state.

In any event, the Alabama court’s dismissal of the case leaves the probate judges without any cover for continued defiance of the federal court order, so marriage licenses should be available for same-sex couples in every county, and continued defiance could subject probate judges to contempt orders and a fate akin to that suffered by Rowan County, Kentucky, Clerk Kim Davis, who spent some time stewing in jail until she was willing to let subordinates in her office issue marriage licenses.

Lesbian Mom’s Case Closer To Supreme Court Review

Posted on: December 14th, 2015 by Art Leonard No Comments

A lesbian mother’s quest for joint custody of the children she had adopted in Georgia and raised together with her former same-sex partner took a step closer to the Supreme Court on Monday, December 14, when the Court granted her “Application for Recall and Stay of Certificate of Judgment of Alabama Supreme Court.”  V.L. v. E.L., No. 15-648.  V.L. is asking the Supreme Court to overturn a September 18 ruling by the Alabama Supreme Court, which refused to recognize the validity of the adoptions, having filed her Petition for Certiorari with the Supreme Court on November 16.

The Supreme Court justices did not explain their grant of this stay request.  They normally issue no explanations for their rulings on such applications, but, as Chief Justice John Roberts explained in 2012 in an “in chambers” ruling on such a petition (see Maryland v. King, 133 S. Ct. 1, 2 (2012)), a stay of a lower court decision while the Supreme Court is deciding whether to grant review is warranted when there is “(1) a reasonable probability that this Court will grant certiorari, (2) a fair prospect that the Court will then reverse the decision below, and (3) a likelihood that irreparable harm will result from the denial of a stay.”  The Court did state that if it denies review in this case, the stay will terminate automatically.  If it grants review, the stay will be in effect as long as the case is pending before the Supreme Court.

The Alabama Supreme Court’s refusal to recognize the Georgia adoption meant that V.L. had no legal standing to seek joint custody or visitation in the Alabama circuit court, and that the interim visitation order issued by the circuit court and affirmed by that state’s court of appeals was terminated, disrupting V.L.’s relationship with her children.  Unless the Alabama Supreme Court’s ruling was stayed pending appeal, V.L. and her children could suffer a prolonged period of separation, an injury not reparable through damages or other retrospective judicial relief and thus “irreparable” for purposes of this stay application.

Perhaps more to the point, the Alabama Supreme Court’s refusal to recognize the Georgia adoption was a clear departure from the constitutional requirement that sister-state court judgments be accorded “full faith and credit.”  The Alabama court did this by opining that the Georgia trial judge had misconstrued Georgia’s adoption statute when granting the adoption and thus that court did not have “jurisdiction” (legal authority) to grant the adoption.  This is a novel twist on the concept of jurisdiction, and a clear departure from the Supreme Court’s past interpretations of the Full Faith and Credit Clause.

A dissenting Alabama Supreme Court justice argued that the ruling theoretically opened up to challenge any out-of-state adoption when a majority of the Alabama Supreme Court disagreed with how the courts of another state interpreted their adoption statute, leading to uncertainty in an area of the law where courts have traditionally stressed the need for certainty and stability – child custody.

By granting V.L.’s stay application in this case, the Supreme Court is signaling the likelihood that it will grant review and the strong possibility that it would reverse the Alabama Supreme Court’s ruling, to judge by Chief Justice Roberts’ description of their decisional process.

Respondent’s briefs in opposition to review are normally due to the Court a month after a petition is filed (which would be this week), although the Court can grant a motion to extend time.  After all the briefs have been filed, the Court may schedule the petition for consideration at a private conference of the Court.  At the pace this process usually runs, a decision whether to review the case might be expected a few months down the line.  Review would normally have to be granted by mid-January for a case to be argued in this term of the Court.  Unless the justices feel particular urgency to take up this case, it might not be argued until the fall of 2016, with a decision late in 2016 or early in 2017.  The temporary stay reduces the urgency, if it means that V.L.’s temporary visitation order goes back into effect — a conclusion that is not certain until the lower Alabama courts address the scope of the stay.

V.L. is represented by the National Center for Lesbian Rights, cooperating attorneys from Jenner & Block LLP (Washington, D.C.), and local counsel Tracie Owen Vella (Vella & King) and Heather Fann (Boyd, Fernambucq, Dunn & Fann, P.C.), both of Birmingham, Alabama.  The lead Jenner & Block attorney on the case is Paul M. Smith, who argued the appeal in Lawrence v. Texas that resulted in the Supreme Court striking down laws against consensual gay sex in 2003.

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

Rogue Alabama Supreme Court Refuses to Recognize Georgia Co-Parent Adoption

Posted on: September 21st, 2015 by Art Leonard No Comments

Under the United States Constitution’s Full Faith and Credit Clause, a state court is supposed to recognize the judgments of courts from other states unless those courts did not have jurisdiction over the parties or the subject matter of the case.  Asked to rule on whether an Alabama court must recognize a Georgia adoption decree involving a same-sex couple, however, the Alabama Supreme Court manufactured a jurisdictional issue in order to reverse a ruling by Alabama’s Court of Civil Appeals and deny recognition to the Georgia adoption.  As a result, the child’s adoptive mother, identified in court papers as V.L., will be denied visitation with the children she had been raising with her former partner.

The court issued its September 18 decision in E.L. v. V.L. “per curiam,” which means that none of the justices is credited with writing the opinion.  Justice Greg Shaw was the sole dissenter, arguing that there was no jurisdictional issue in the case and that the court was required to recognize the adoption.  Justice Tom Parker wrote a brief separate opinion that seemed largely beside the point.

The women were involved in a relationship for six years during which they resided in Alabama.  They decided to have children through donor insemination.  E.L. gave birth to one child in 2002 and twins in 2004.  Following their birth, V.L. acted as a parent to the children along with E.L.  The women decided jointly to have V.L. adopt the children as a co-parent, but that was impossible in Alabama at that time.  They learned through friends in Georgia that the Fulton County Superior Court had granted second-parent adoption petitions, and the only thing that stood in their way was a six month residency requirement.  They rented a place in Georgia to establish residency, proceeded through the formal adoption procedures, and obtained an adoption decree on May 30, 2007, after which they resumed full-time residency in Alabama.  Subsequently they obtained new birth certificates for the children listing V.L. as a parent, presumably by showing the adoption decree to the appropriate Alabama clerk to obtain the new birth certificates.

The women ended their relationship in November 2011.  V.L. moved out of the home they had shared.  E.L.  eventually denied V.L. further access to the children.  V.L. brought the Georgia adoption decree to the Jefferson (Alabama) Circuit Court, asking to have it registered and to get a declaration of her legal parental rights, including “some measure of custody of or visitation with the children.”  Her case was transferred to the Jefferson Family Court.  E.L. moved to dismiss the case, but the family court denied her motion without a hearing, awarding V.L. visitation rights.  E.L. filed various motions seeking to upset this ruling, which were all denied by the family court.

E.L. then appealed to the Alabama Court of Civil Appeals, which rejected most of her arguments but agreed that the family court should have given E.L. a hearing on the “best interest of the children” before denying her motion to dismiss the case.  E.L., observing that the Court of Civil Appeals’ ruling had implicitly rejected her argument that the Georgia adoption was invalid, sought to appeal that part of the ruling.  The Alabama Supreme Court agreed to review it.  In its September 18 ruling, the Supreme Court reversed the lower appeals court, concluding that Alabama was not required to give full faith and credit to the Georgia adoption decree.

In order to refuse to recognize the Georgia adoption, the Alabama court had to find either that the Fulton Family Court lacked jurisdiction over this family or over the subject matter of the adoption proceeding.  E.L. contended that the women had not really established residence in Georgia.  Although they rented a place, she contended, they had not actually moved there, as they had jobs in Alabama and had retained their residence there, just spending a few days in the Georgia house in order to create the appearance of residency and to be there when child welfare officials came to interview the family as part of the adoption proceeding.  She also argued that despite Jefferson Superior Court’s ruling, Georgia’s adoption statute did not allow for second-parent adoptions, so the court did not have the power to approve such an adoption.

The Alabama Supreme Court embraced the objection to subject matter jurisdiction.

E.L. argued that the Georgia adoption statute did not apply to this adoption proceeding because the statute conditions the court’s authority to grant an adoption by a “third party” on a finding that “each living parent or guardian of the child has surrendered or had terminated all his rights to the child in the manner provided by law prior to the filing of the petition for adoption.”  The Georgia Supreme Court has never addressed this issue, but the Alabama Supreme Court premised its ruling on a dissenting opinion by one justice of the Georgia Supreme Court from that court’s decision to deny review in a case involving a second-parent adoption.  The Alabama court insisted that the dissenting Georgia justice’s opinion provided “the proper analysis” of the Georgia adoption statute, and insisted that “a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply” with the adoption statute.

The argument in the Alabama Supreme Court boiled down to the question whether E.L. was challenging the “merits” of the Georgia adoption decision or the “jurisdiction” of the Georgia family court to grant the adoption.   Under the Full Faith and Credit Clause, the Alabama court may not inquire into the “merits” of the adoption decision, but may refuse to recognize it if the Georgia court did not have “jurisdiction” to issue the adoption decree.

Wrote the Alabama justices, “E.L. argues that the Georgia court could properly exercise subject-matter jurisdiction only when the requirements of the Georgia adoption statutes were met, and, in this case, they were not, she argues, because those statutes made no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.  E.L.’s argument regarding the Georgia adoption statutes appears to be correct,” the court said, citing the dissenting opinion by the sole Georgia justice who had voted to review a case that his colleagues decided not to review.  Thus, the Alabama court concluded, the court “erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.”  The court went on to find that this error was jurisdictional, not just a misinterpretation of the statute by the Georgia Superior Court.  Since E.L. had not agreed to terminate her parental rights, wrote the court, “the Georgia court was not empowered to enter the Georgia judgment” and thus “lacked subject-matter jurisdiction” to enter that judgment.  “The Georgia judgment is accordingly void,” wrote the court, “and the full faith and credit clause does not require the courts of Alabama to recognize that judgment.”

Justice Parker’s “special concurrence” stressed that under Alabama law there is no “right to adopt” but rather a “privilege” to do so on terms set by the state.  He invoked a 2004 decision by the U.S. Court of Appeals for the 11th Circuit upholding Florida’s ban on gay adults adopting children (a ban that has since been struck down by the Florida state courts) to support his argument that Alabama has a legitimate interest “in encouraging a stable and nurturing environment for an adopted child by encouraging that the child be raised in the optimal family structure with both a father and a mother.”  What this has to do with the matter before the Alabama Supreme Court in this case is unfathomable, since it is about recognizing a second-parent adoption that took place several years ago.  Refusing to recognize it will not result in these children being raised in a different-sex household.

Justice Shaw’s dissent is clear and to the point.  “The main opinion reviews the merits of the adoption in this case,” he wrote; “our case law, interpreting the United States Constitution, does not permit this Court to do so.”  The provision in the Georgia adoption statute that the Alabama Supreme Court invoked “speaks to the merits of whether the adoption should be granted — not to whether the trial court obtains subject-matter jurisdiction.”  Georgia statutes give the Georgia Superior Court jurisdiction “in all matters of adoption.”  “This would include adoption matters where the petitioners fail to ‘satisfy’ the court that the requisites for an adoption were met,” he wrote, quoting a Georgia Supreme Court ruling on “subject-matter jurisdiction” as meaning authority to decide “the class of cases to which that particular case belongs.”

“The adoption petition in the instant case,” he wrote, “whether meritorious or not, was part of the class of cases within the Georgia court’s jurisdiction to decide.  The fact that the adoption should not have been granted does not remove the case from the class of cases within that court’s power.”  While Shaw would “tend to agree” that on the merits the Georgia Superior Court erred by construing Georgia’s adoption statute to allow this adoption, that was irrelevant to a full faith and credit analysis.  “Our case law prohibits an inquiry into the merits of a foreign judgment,” he insisted.  “Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama:  Any irregularity in a probate court’s decision in an adoption would not arguably create a defect in that court’s subject-matter jurisdiction.”

Ironically, it appeared that E.L.’s stronger argument, if it could be proved in a trial, would be that the women had never met the residency requirement because they had failed to actually live in the rented premises for six months before filing the adoption petition.  But had the Alabama Supreme Court taken that route, the case would have to be sent back to the Jefferson Family Court to litigate the residency question, and if V.L. made the strong argument, the adoption would be recognized.  By taking the more convoluted jurisdictional route, the Alabama Supreme Court arguably precluded the recognition of any Georgia second-parent adoptions, and also provided a theoretical basis for challenging the validity of adoptions from other states whose statutes did not clearly authorize them.

The National Center for Lesbian Rights represents V.L. together with Alabama lawyers Heather Fann and Traci Vella.  Although they criticized the Alabama Supreme Court’s ruling, it was unclear whether V.L.’s lawyers would try to get the U.S. Supreme Court to review it.  That court has turned down prior requests to review lower court rulings on gay adoption issues, most prominently in a 5th Circuit case where the court of appeals refused to order Louisiana to recognize the New York adoption of a Louisiana-born child by a New York couple for purposes of getting a proper birth certificate for the adopted child.  In that case, the 5th Circuit held that federal district courts do not have authority to order state government officials to recognize out-of-state adoptions, opining that such “recognition” cases had to be brought in the state courts.  V.L. followed the state court route, at first with success, but ultimately encountered the outspokenly anti-gay Alabama Supreme Court, which is also now considering a motion by a county probate judge for a ruling that the state does not have to comply with the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges.



The Alabama Supreme Court’s Marriage Inequality Antics

Posted on: March 4th, 2015 by Art Leonard No Comments

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.

Postscript: In its March 3 Order, the court gave Mobile County Probate Judge Don Davis until March 5 to advise the court “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 in Strawser.”  Davis asked for an extension of time to answer, saying he had sought instruction from the Alabama Judicial Inquiry Commission and was still awaiting a ruling by Judge Granade.  The court responded somewhat frostily in a new 7-1 opinion issued on March 11, 2015 WL 1036064, stating that the Commission had nothing to say about this issue, and that as far as the court was concerned, it could read and construe Judge Granade’s existing orders for itself.  The court found that Judge Granade’s order “grants injunctive relief against Judge Davis only as ‘to the plaintiffs’ in Strawser.  Our reading of this plain language is confirmed by the fact that the plaintiffs in Strawser sought relief only on their own behalf, not on behalf of any others, and by the fact that federal jurisprudence contemplates that a federal court dfecides only the case before it, in turn binding the parties before them only with respect to the other parties in the case.”  In other words, since the Strawser plaintiffs started off as a pro se couple and added only a few other couples as co-plaintiffs in their first amended complaint (which added Davis as a defendant), the federal court Order only requires Davis to give licenses to those plaintiff couples and no others.  This was good enough for the Alabama Supreme Court, which decreed that Davis was part of the group of all Alabama probate judges who are bound by the Alabama Supreme Court’s order not to issue licenses to same-sex couples.