February 11, 2015 Practice Points

Sweet Home Alabama?

By Nick Kacprowski

Alabama is the 37th state in which same-sex marriage is now recognized as legal, but it is probably the state that has produced the most drama. It started on January 23, 2015, when U.S District Judge Callie v. Granade issued a decision in Searcy v. Strange holding that Alabama's constitutional ban on same-sex marriage violates the U.S. Constitution. Two days after issuing her opinion invalidating Alabama's prohibition of same-sex marriage, the Court granted a 14-day stay of her order to allow the Eleventh Circuit the option of issuing a further stay. As an aside, Judge Granade, a George W. Bush appointee, is the granddaughter of civil-rights era Fifth Circuit Judge Richard T. Rives, who was one of the "Fifth Circuit Four" who issued a number of decisions advancing civil rights in the 1950s and 1960s.

The first piece of drama concerning the Alabama case played out at the U.S. Supreme Court level. On February 9, 2015, the Court denied Alabama's request to stay the district court's order pending the decision on same-sex marriage expected from the U.S. Supreme Court this term. Justice Thomas authored a bitter dissent from the 7–2 denial that Justice Scalia joined. Justice Thomas wrote that to not give a state the benefit of the doubt on the constitutionality of one of its statutes while the issue was on review was "indecorous" and "yet another example of this Court's cavalier attitude toward the States."

Justice Thomas's critical words were mild when compared with the controversy that Chief Justice Roy Moore of the Alabama Supreme Court has caused. Roy Moore was the justice who a state ethics panel removed from the bench in 2003 in a proceeding that arose from his refusal to remove a huge monument to the Ten Commandments from the Alabama Judiciary Building. In an administrative order issued on February 8, 2015, Roy Moore wrote that the federal district court's opinion did not bind the Alabama probate judges who issue marriage licenses and who he claimed fell under his supervision as the Chief Justice. He then ordered probate judges not to issue marriage licenses to same-sex couples, as those licenses would violate the Alabama Constitution's prohibit on same-sex marriage.

The result was mass confusion in Alabama, with some probate judges issuing licenses and some refusing. The governor side-stepped the opportunity to clarify the situation by declining to give any direction to the probate judges. The attorney general responded by telling probate judges to consult their own attorneys. The plaintiffs in the Searcy case also sought on February 9 to have Judge Granade hold one probate judge that refused to issue same-sex marriage licenses in contempt of her January 23, 2015, order. The court declined to do so, reasoning that because that probate officer was not a party to the case, his refusal to issue marriage licenses did not violate her order, although the refusal did violate the U.S. Constitution.

Keywords: LGBT, Alabama, marriage, same-sex, litigation

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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