A federal judge on Thursday ordered an Alabama official to comply with her earlier ruling striking down the state’s ban on same-sex matrimony by beginning to issue marriage licenses to gay couples.
U.S. District Court Judge Callie Granade’s order sought to clarify that Mobile County Probate Court Judge Don Davis should follow her directive, and not a contravening order from Alabama Supreme Court Justice Roy Moore that has led to many state judges to refrain from issuing marriage licenses to gay couples.
Granade laid out specific reasons why the plaintiffs want to get married, including health problems by Mobile resident James Strawser, who wants his partner, John Humphrey, to have full spousal authority to make medical decisions should he become incapacitated.
“Plaintiffs’ inability to exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant,” the judge wrote. “Moreover, the Plaintiffs in this case have submitted declarations attesting to the specific reasons why their inability to become legally married in Alabama presents a substantial threat of irreparable injury.”
Shortly afterward, the Mobile county office that issues marriage licenses opened its windows, which had remained shuttered this week, to begin serving all couples…
But critics of same-sex marriage said the ruling may not put the issue to rest. Mat Staver, chairman of the Liberty Counsel, a public interest law firm representing more than a half-dozen of the state’s probate judges, has asked for further clarification from the Alabama Supreme Court.
It was Roy Moore, the state’s chief justice, who prompted the defiance of many probate judges by ordering them late Sunday not to issue licenses to same-sex couples.
Many in Alabama were baffled when U.S. District Judge for the Southern District of Alabama Callie Granade issued an order Jan. 23 directing that state Attorney General Luther Strange “is enjoined from enforcing” Alabama’s statutory and constitutional bans on gay marriage. Just a week earlier, the U.S. Supreme Court had announced it will decide a set of gay marriage cases this session, meaning the marriage question will be definitively settled nationwide in just a few months. Why would Granade toss a bomb into the situation when it’s going to be resolved soon, anyway? Granade herself seemed to acknowledge that fact when she inserted a footnote into her order that read: “The questions raised in this lawsuit will thus be definitively decided by the end of the current Supreme Court term, regardless of today’s holding by this court.” What Granade didn’t answer was the question: OK, so why do this now? And if Granade insisted on going ahead, why not issue the order and at the same time issue a stay until after a higher court rules?…
The problem was, the plaintiffs sued only Luther Strange, the attorney general, who is an official of the executive branch. The attorney general doesn’t issue marriage licenses and doesn’t oversee marriages in the state. Elected probate judges in Alabama’s counties do that, and they do not work for the attorney general. In other words, Granade ordered the wrong guy to start issuing marriage licenses…
So Granade had created a mess. Nevertheless, some probate judges in Alabama — the ones in the metropolitan centers of Birmingham, Montgomery and Huntsville — began issuing marriage licenses to gay couples. Other judges, mostly in rural counties, declined to issue gay marriage licenses. Still others stopped issuing any licenses at all. It’s not that all of them were taking a stand against gay marriage; some were just confused. The federal judge in Mobile said one thing, and the chief justice of the state Supreme Court said another, while the U.S. Supreme Court is promising a decision shortly. Several probate judges just wanted definitive guidance on what to do right now.
Meanwhile, some experts looked at what was happening in the case, and rather than pronouncing about George Wallace and schoolhouse doors, concluded that Moore had a point. “Roy Moore gets it right,” wrote Florida International University law professor Howard Wasserman of the widely read law blog Prawfs Blawg.
Contra Huckabee, the Supreme Court can both decide whether a law passed by Congress is constitutional, and it may override the other branches of government in making its decision. We need look no further than the high court’s long practice, including such recent decisions as Citizens United v. FEC (overturning Congress against the wishes of the executive branch), NLRB v. Noel Canning (overturning the executive branch to the benefit of the Senate), and U.S. v. Windsor, (overturning Congress with the support of the executive branch). Thus, Huckabee’s assertions regarding the Court’s powers when it comes to disputes between the branches of government are obviously and indisputably false as a matter of legal practice and precedent. Individuals can, and often do, disagree with the high court’s decisions, but their disagreements do not alter the law. The Supreme Court does not get the only say on the constitutionality of laws, but it does get the final say. Because DeHart does not respond on this issue, I do not know whether he agrees with Huckabee on this…
Finally, in response to Huckabee’s vagueness about what would happen if state officials declined to comply with a federal decision on marriage bans, I analogized to the example of anti-desegregation efforts in Arkansas. I also pointed to the recent case of the Florida county clerks who attempted to ignore a federal district court’s decision striking Florida’s marriage ban as unconstitutional. The judge responded to the rebelling clerks with a pointed note explaining that they could find themselves on the losing end of an order to pay the court costs for couples forced to sue them to obtain compliance. The clerks backed down. My reason for pointing this out was that there is no great mystery about what will happen should state officials take Huckabee’s advice.
Moore asked Cuomo if he would follow those orders.
“I am not Chief Justice of Alabama,” Cuomo said. “It is not my place to answer.”
“If you were Chief Justice of Alabama, would you follow Dred Scott and Plessy v. Ferguson when they were issued?” Moore said.