New York Law School

Art Leonard Observations

Posts Tagged ‘Chief Justice Roy Moore’

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.

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.