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Confusion over the weekend about Alabama marriages

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On Friday, after Alabama’s same-sex marriage ban was struck down, state officials asked the district court for a stay pending appeal. The request seemed a bit far-fetched, since a stay was denied in the Florida marriage case at all three levels of the federal judiciary.

Indeed in a late order last night, the judge granted a temporary stay while denying a stay pending appeal and fully rejecting the state’s arguments.

Without the stay, because the ruling was worded so broadly, striking the entire ban and not only the ‘recognition’ aspect, same-sex couples could have gotten married as early as today.

In a development that took place over the weekend, the Alabama Probate Judges Association wrote what it called a “clarification” of the ruling, attempting to explain that “Friday’s ruling does not open the door for the issuance of same sex marriage licenses.” They argue that state probate judges, the officials who provide marriage licenses in Alabama, aren’t named in the lawsuit so nothing suggests they have to allow same-sex couples to marry.

After that memo was issued, the plaintiffs in the marriage case responded via a brief opposing a stay and asking for clarification of the scope of the federal judge’s order. The brief cited the Probate Judges Association specifically: “Clarification is necessary as the Probate Judges association in Alabama have assumed the position like George Wallace at the schoolhouse door staring defiantly upon this Court’s order reasoning that not all citizens of Alabama are entitled to the same rights and privileges afforded under the Constitution of the United States and that as Probate Judges “it is [their] duty to issue marriage licenses in accordance with Alabama law and that means [they] can not legally issue marriage licenses to same sex couples.””

The Association held a conference call with press today, and they noted that their memo was legal advice that was supported by the Executive Committee, not the full Association. They stated that it’s up to each probate judge whether to grant licenses or not. Late last night, the Association filed a friend of the court brief in support of granting a stay.

Montgomery County had confirmed that they’d issue marriage licenses to same-sex couples in the county absent a stay. It was widely expected that Jefferson County would join them.

Part of the confusion is at least understandable: the only couple in the case is already married, and they’re only seeking recognition of their existing marriage.

But the amendment and the statute contain both the recognition ban and the ban on performing marriages, so the order barring the state from enforcing them necessarily includes both parts. But as we’ve seen in a few other states, a little confusion allows a state to justify continuing to block enforcement of a federal order.

If the federal judge takes action on the second request quickly – clarifying that the order applies to the entire amendment and statute – same-sex couples in the state will finally have some answers. Without more federal action, work will have to be done county by county to make sure licenses are being issued.

7 Comments

  • 1. hopalongcassidy  |  January 26, 2015 at 7:31 am

    This post should be either deleted or moved below the later one which is now below this one, since the stay was issued, the confusion is compounded by the order of the posts.

  • 2. 1grod  |  January 26, 2015 at 7:41 am

    Scottie: What in the last paragraph of the Stay Order would suggest that the federal judge does not intend to clarify scope of the order and when she would do so: "Prior to the 14-day stay’s expiration, the court will issue a separate order addressing plaintiffs’ request for clarification of the court’s injunction order". Regarding expecting this to be done quickly, imo it will not be done after the 11th circuit appeals court denies the stay or near the end of the 14 days if the Appeals Court has not yet made a determination. Who knows when published if that court grants a stay. Has the State yet filed a request for a stay with the Appeals Court? Perhaps they learned a lesson from their last Friday's shoddy Stay Motion, and will take time to write it. G

  • 3. Raga  |  January 26, 2015 at 10:08 am

    Technically, the court has only agreed to issue an order "addressing the plaintiffs' request for clarification" – that order could either grant or deny that request.

  • 4. Raga  |  January 26, 2015 at 10:11 am

    I'm surprised by the broadness of the ruling, since this is only a recognition case. Laws in other states, in similar cases, have been read down only to the extent that non-recognition is unconstitutional. Is the Alabama law un-severable for some reason? It seems to me the court might have overreached, and if the State points this out to the Eleventh Circuit, there is a chance that a stay would be granted.

  • 5. Mike_Baltimore  |  January 26, 2015 at 10:52 am

    If 11CA or SCOTUS decides the court in Alabama overreached, it might turn out to be essentially a Pyrrhic victory for the Alabama bigots, since most presume that by the end of June, SCOTUS will rule that ME shall be recognized everywhere in the US. The SCOTUS decision would be less than 5 months from when the Alabama bigots can celebrate their 'getting one over on the Federal government'.

    And I really want some governor to activate the National Guard, then have the President over-rule them by nationalizing the Guard so the SCOTUS decision can go into effect. After all, President Obama will be in office until January 20, 2017, long after the SCOTUS decision is handed down. And last I heard, President Obama is on our side, not the side of the bigots.

  • 6. Sagesse  |  January 26, 2015 at 11:14 am

    Not a lawyer and not speaking as one, but the underlying issue was the ability to adopt, in the case at hand based on recognition of an out-of-state marriage. Isn't the problem the same, and the unconstitutionality the same, if the parents cannot marry in-state?

    Is one of the other Alabama federal marriage cases a celebration case? If a celebration case is decided (favourably), then all bases are covered.

  • 7. Raga  |  January 26, 2015 at 11:23 am

    I could be wrong, but my recollection is that none of the Alabama cases seek the right to marry in-state. Also, the underlying issues may be the same for both aspects, but courts are generally required to exercise restraint from addressing issues not properly before them (striking down just the recognition aspect of the ban would have provided full relief to the plaintiffs here). In this case, like in the Kentucky case, a new plaintiff couple should have had to intervene and challenge the celebration part of the ban for the judge to rule it unconstitutional.

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