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Same-sex couples in Mobile County file lawsuit seeking a marriage license

LGBT Legal Cases Marriage equality Marriage Equality Trials

A new lawsuit was just filed by the same attorneys involved in Searcy v. Strange seeks to force Mobile County to issue marriage licenses to same-sex couples.

There aren’t any details about the plaintiffs, though the complaint notes that the plaintiffs did ask for a marriage license from Mobile County Probate Court.

EqualityOnTrial will have more information on this when it becomes available.

UPDATE: In related news, the Mobile County Probate Court has issued a statement confirming that they are closing down the marriage licensing office altogether. They’ve also asked their attorneys to seek clarification with the Alabama Supreme Court as to their obligations, given Chief Justice Moore’s memo and the federal court orders.

Thanks to Equality Case Files for these filings

62 Comments

  • 1. JayJonson  |  February 9, 2015 at 3:43 pm

    Excellent lawsuit that asks for an emergency ruling ordering the probate judge and staff, the governor, and the chief justice of the alabama supreme court to do their jobs and be assessed sanctions for violating the constitutional rights of the plaintiffs.

  • 2. davepCA  |  February 9, 2015 at 3:56 pm

    "closing down the marriage licensing office altogether"…. That kind of 'attempt to avoid complying with the federal ruling won't fly. Where on earth are these people getting this 'advice' to consider such actions? Don't they have any lawyers around that office??

  • 3. Eric  |  February 9, 2015 at 4:01 pm

    This scorched earth policy is where fundamentalism leads.

  • 4. ReadLearn  |  February 9, 2015 at 4:01 pm

    This reminds me of my hometown in the rural south which closed the public swimming pool rather than comply with a federal order to allow black kids to swim there. // I actually think this might be legal.

  • 5. Eric  |  February 9, 2015 at 4:02 pm

    Awesome that everyone is getting sued in both their individual and official capacities.

  • 6. ReadLearn  |  February 9, 2015 at 4:03 pm

    However, surely there will be enough push back by straight people, as well as the business community, who want to have weddings in Mobile, Alabama.

  • 7. Eric  |  February 9, 2015 at 4:04 pm

    One has a fundamental right to swim? These two issues are not similarly situated.

  • 8. Pat_V  |  February 9, 2015 at 4:07 pm

    So where do we stand now? The map on this page seems pretty good as a starting point http://www.al.com/news/index.ssf/2015/02/see_if_y

    So I used it to update the spreadsheet I made earlier. https://docs.google.com/spreadsheets/d/1sOMXM59jZ
    (for counties not issuing licenses to same-sex couples, I didn't distinguish the cases where they accept applications: those are still jerks not issuing licenses, period.)
    The table automatically calculates the % of population for each category.

    Is that up to date this way? I read earlier that another count had 10 counties. Can someone add it to the spreadsheet? (anyone can update the sheet directly by putting an 'X' in the right column)

  • 9. davepCA  |  February 9, 2015 at 4:08 pm

    Nope. It isn't. It's simply an obvious attempt to avoid complying with the federal order. Expanding a ban on the recognition of the rights of citizens to include additional citizens in an attempt to conceal the true target of the discrimination cannot survive judicial scrutiny. Especially in a case like this where the facts in the case and the sequence of events spells out quite clearly what they are really attempting.

  • 10. NetAmigo  |  February 9, 2015 at 4:13 pm

    These people are carrying on the same way they did more than 50 years ago to deny civil liberties to racial minorities. They shut down their public schools and opened “private” academies in an effort to continue segregation. They elect a demagogue as their Supreme Court Chief Justice to lead the battle for bigotry and religion even after he has been removed from office by his peers for defying lawful authority. Nothing is new here.

  • 11. davepCA  |  February 9, 2015 at 4:13 pm

    Yup. The state officials don't have a legal leg to stand on regardless of whether opposite sex couples get pissed off at these shenanigans, but getting more people fed up with this stuff can backfire for the state, and it's not a bad thing to have even more people on our side fighting these actions.

  • 12. davepCA  |  February 9, 2015 at 4:15 pm

    Just want to add my "thanks!!" to you for doing this. Excellent!

  • 13. flyerguy77  |  February 9, 2015 at 4:18 pm

    Can this new lawsuit fly? meaning the couple can go to different county? but this smells fishy big time through…

  • 14. Pat_V  |  February 9, 2015 at 4:18 pm

    You're very welcome!

  • 15. RnL2008  |  February 9, 2015 at 4:20 pm

    By Moore, who DOESN'T have a leg in this fight……the man needs to be removed from the bench!!!

  • 16. RnL2008  |  February 9, 2015 at 4:23 pm

    Yes, as the Judge put in her reason for denying the contempt charges today……..every Probate Judge who is refusing to issue marriage licenses to Same-Sex couple NEED to be added to this lawsuit!!!

    And I'm curious to know how straights feel about being denied the right to marry in some of these counties as well?

  • 17. Sagesse  |  February 9, 2015 at 4:27 pm

    I think it's helpful that they're closing down the office altogether. The state has a marriage law, and has set up an administrative infrastructure for providing legal marriage licensing in the state. This is a ministerial function. Wisely or not, they've designated the probate judges to deliver marriage licensing in the county. Regardless of what decisions are made regarding same-sex marriages in the state, SOMEONE in state government has the authority to tell the probate court judges to do their jobs, because offering legal marriage licences in the county is not optional or discretionary. Find that SOMEONE, and you've found the authority to instruct them how to apply Judge Grenade's order changing the marriage regime as it applies to same-sex couples.

  • 18. guitaristbl  |  February 9, 2015 at 4:27 pm

    They have literally sued everyone, from the probate judge to Bentley and Strange for their lack of spine to enforce the ruling and of course Moore. Good for them ! They point out to the facts of the case and what they want (and they ask exactly for what they should be asking – relief and sanctions) in a a brief and effective way.
    I hope the emergency ruling comes soon and its a hard one, especially on Moore.

  • 19. A_Jayne  |  February 9, 2015 at 4:31 pm

    Wouldn't their most expeditious approach be to ask to intervene in the already pending action in Judge Granade's court? (As best I know, still "pending" due to her having issued a preliminary injunction, and not yet a permanent one…)

    In her own (denial of contempt charges) order, she quotes her original order as saying:

    "[A] clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees."

    Why would people file a new lawsuit instead of going this route?

  • 20. Sagesse  |  February 9, 2015 at 4:32 pm

    I think #10 was Larmar county that was 'in' briefly, then back 'out', so the number is now 9.

  • 21. ReadLearn  |  February 9, 2015 at 4:32 pm

    I think it just depends on what the duties of the Probate Judges are. Do their duties include issuing marriage licenses? I'm definitely for marriage equality. Just playing devil's advocate.

  • 22. ReadLearn  |  February 9, 2015 at 4:35 pm

    I'm not sure, but I believe that someone may be the governor.

  • 23. Raga  |  February 9, 2015 at 4:35 pm

    The complaint is wrong in stating, as a fact, that the Supreme Court decided the stay request by a 7-2 vote. We do not know that that was necessarily the case. Sorry, I had to point it out.

  • 24. NetAmigo  |  February 9, 2015 at 4:37 pm

    I think they tried that approach and the judge rejected it.

  • 25. guitaristbl  |  February 9, 2015 at 4:38 pm

    I was about to point out the same thing. IMO it is the most plausible scenario though. I just can't imagine Alito not joining Thomas's dissent if he agreed on the issuance of the stay with Thomas and Scalia.

  • 26. davepCA  |  February 9, 2015 at 4:48 pm

    That attempt was rejected because the couple involved was already married (in another state) and therefore could not show harm and thus had no standing. I'm not sure why the latest action is a new suit rather than a new couple seeking to 'intervene as plaintiffs' as mentioned in the order…?

  • 27. Zack12  |  February 9, 2015 at 4:51 pm

    The more things change, the more they stay the same.
    Alabama is simply continuing its long tradition of being on the wrong side of history.

  • 28. A_Jayne  |  February 9, 2015 at 4:52 pm

    No, they asked the judge to hold the probate judge in contempt, but she declined to do so since he was not (yet) a party to the case she decided. That's what I think should have been their next step – asking to intervene as plaintiffs in the already pending action, instead of filing a new lawsuit, which is why I asked about that.

  • 29. sfbob  |  February 9, 2015 at 5:05 pm

    As I understand it, in Alabama, probate judges issue marriage licenses and may solemnize marriages. It has been noted here and elsewhere that, despite their title, probate judges are not technically judges; they needn't be lawyers nor be admitted to the state bar. Their duties are a mix of judicial and ministerial functions. As to the issuance of marriage licenses it has been noted here, and in fact people have referenced the websites of various counties where it is stated specifically, that the issuance of marriage licenses is a ministerial function so there is no discretion on the part of the probate judge as to whether or not to issue a marriage license; a couple that meets the statutory requirements for marriage must be issued a license.

  • 30. bayareajohn  |  February 9, 2015 at 5:07 pm

    It's about perspective. They prefer to see it as HISTORY being on the wrong side of Alabama.

  • 31. Pat_V  |  February 9, 2015 at 5:13 pm

    Cool, thanks. It's really outrageous that only 9 of 67 counties are following the law, and that barely 30% of the population can get marriage licenses in their own county. How are you guys expecting it to increase now? Can we hope to get a sizable chunk back in the law within the next couple of days? Or shall we expect it to play out like in Kansas with a slow increase of Marriage equality counties over the course of several months?

  • 32. Waxr  |  February 9, 2015 at 5:31 pm

    There is official resistance, but the public seems to be accepting ME without demonstration.

  • 33. davepCA  |  February 9, 2015 at 5:39 pm

    I think we're both right, aren't we? Not sure now…

  • 34. BillinNO  |  February 9, 2015 at 5:42 pm

    I know this is a trifle off topic, but what with today's events, what are the likely scenarios for the Fifth Circuit between now and June. I'd so like the panel of Fifth Circuit Judges to bring in Louiisiana, Texas and Mississippi before SCOTUS does it. What are the odds now?

  • 35. VIRick  |  February 9, 2015 at 6:01 pm

    Zack, I think it might be important to point out one difference between Alabama 50 years ago and Alabama now, and that difference concerns the "Alabama black belt," the east-west stripe of counties across south-central Alabama which are majority black in population, and which were a central focus in the Civil Rights campaign. That includes Montgomery, Lowndes County and Dallas County (Selma) where segregation was most strongly entrenched, and where the white minority felt most "threatened.".

    Today, those areas are on our side, as blacks, in general, know about rights and about rights being denied (but don't tell Clarence Thomas). The strongest critique yet:

    "Lowndes County Probate Judge John Hulett said he would issue licenses to same-sex couples and would perform ceremonies for same-sex couples. None had come in so far today, 9 February 2015. "I talked to some counties around me that aren't doing it. I said, 'Send 'em to me.''"

    Asked about Moore's order telling probate judges not to issue the licenses, Hulett said Moore doesn't run the probate office. "He's been put out one time," Hulett said, referring to Moore's removal from office in 2003 for refusing to follow a federal judge's order to remove a Ten Commandments monument from the state judicial building.

    "I'm not going to hurt somebody to make somebody else look good," Hulett said. Hulett said it was up to God to sort out the "wheat and the chaff." "We don't fight people who are living together," Hulett said.

    Another late report further indicates that Dallas County (Selma) is issuing marriage licenses to same-sex couples.

  • 36. Raga  |  February 9, 2015 at 6:03 pm

    If I could speak to the Texas and Mississippi Plaintiffs or their counsel, I would tell them not to wait for a ruling on the merits, which may take months to come down. I would urge them to immediately move the appropriate court (perhaps first their respective district courts, then the Fifth Circuit) to immediately lift the stays. Given that the Fifth Circuit panel seemed to be leaning in our favor, I'm sure the panel would vote 2-1 to lift the stay immediately in both Texas and Mississippi, given SCOTUS's denials of stays in Florida and Alabama. (The Fifth hasn't had a chance to rule on a stay since the Florida stay denial.)

  • 37. VIRick  |  February 9, 2015 at 6:22 pm

    "One has a fundamental right to swim?"

    Eric, that depends. As they learned in Florida during the desegregation fight over the public use of public facilities, they might be able to close down the public swimming pools (for "health" reasons), but they couldn't close down the Atlantic Ocean,– or the Gulf of Mexico.

    As a result, after a number of legal suits, it was deemed that everybody had the fundamental right to use the public beaches, given that the beaches were part of the public domain.

  • 38. A_Jayne  |  February 9, 2015 at 6:25 pm

    I got my assessment from reading this from Scotty's article "BREAKING: Lawyers for Alabama same-sex couple file contempt motion against Mobile County probate judge UPDATE: request denied" — "UPDATE: The judge has denied request, pointing out that the probate judge wasn’t named as a defendant and therefore wasn’t required to do anything."

    Also I read Judge Granade's denial of the contempt motion available at http://www.scribd.com/doc/255223642/1-12-cv-00208

    In her order, she mentions an adoption case, indicating that no evidence presented to her showed "that they have been prevented from applying for the adoption or that their adoption application was wrongfully denied" – is that the couple married in another state? Or were there two requests for a contempt order? IDK

  • 39. VIRick  |  February 9, 2015 at 6:28 pm

    "…. in Alabama, probate judges issue marriage licenses and may solemnize marriages."

    Bob, correct. At least that's how it once was in Alabama counties state-wide until very, very recently. Here's one of the handful retaining that tradition:

    "Lowndes County Probate Judge John Hulett said he would issue licenses to same-sex couples and would perform ceremonies for same-sex couples."

  • 40. VIRick  |  February 9, 2015 at 6:47 pm

    http://www.al.com/news/index.ssf/2015/02/see_if_y
    Looking down through the comments section, which seems to be up-dating, we find these:

    Autauga County began issuing licenses late today to All Couples in compliance with The Federal Courts. Two were issued at the end of the day.

    Chilton issued one same-sex marriage license when they opened this morning, then stopped because of Moore's order.

    Fayette County IS NOT issuing marriage licenses to same-sex couples. When you call to ask, they'll give you a copy-and-pasted "We're issuing all legal marriage licenses in the state of Alabama." Same-sex couples are not included in their definition of "legal marriages."

    And apparently, Lamar County was feeding the same copy-and-paste message as above. Blount County was doing likewise.

    As for the remaining handful of "unknowns:"

    Clay County is not issuing licenses to anyone. I spoke with Angela Wilson, the records clerk there this morning. I've been unable to reach anyone from Chambers County. The person I spoke with in Bullock County's Probate Office was not even aware of the recent rulings in regards to same-sex marriage, she stated they are not issuing licenses to same-sex couples. Macon County's Probate Judge never called me back.

  • 41. bythesea66  |  February 9, 2015 at 7:11 pm

    I suspect the Fifth will rule for ME before SCOTUS rules, but it will probably be at least a little while (though I suppose it could come at any time as long as they don't stay the process). Raga is right that the plaintiffs should not wait and should go for lifting the stays wherever possible.

  • 42. 1grod  |  February 9, 2015 at 7:56 pm

    I've made some adjustments giving you 10 inclusive counties. In percentage terms: 33% are issuing, 33% are not issuing to same gender couples and 33% are not issuing to same or opposite gender couples

  • 43. RQO  |  February 9, 2015 at 8:08 pm

    Perhaps it's fundamentalist's minds are swimming.

  • 44. BillinNO  |  February 9, 2015 at 8:14 pm

    Raga, I was a member of the Board of the Forum For Equality which filed one of the Louisiana Suits; I will pass your suggestion on to the Legal Committee.

  • 45. 1grod  |  February 9, 2015 at 8:45 pm

    I've charted 16 inclusive counties with 0 unknown. Human Rights Campaign Alabama is my primary source.

  • 46. Zack12  |  February 9, 2015 at 9:10 pm

    In regards to the 5th circuit, I think a ruling will take another month at least.
    And I'm okay with that because it will mean less time for an en banc hearing to be held which will certainly overturn our victory there.

  • 47. VIRick  |  February 9, 2015 at 9:13 pm

    Same-sex couples from Macon County (Tuskegee) got married today in Montgomery, one county west.

  • 48. VIRick  |  February 9, 2015 at 9:17 pm

    "I've charted 16 inclusive counties with 0 unknown."

    And were you intending to share this information?

  • 49. Decided_Voter  |  February 9, 2015 at 9:18 pm

    Thanks. It gets tiring seeing that misinterpreted in the media, etc.

  • 50. VIRick  |  February 9, 2015 at 9:25 pm

    My read is this:

    The "Searcy" plaintiffs were already married in another state. They weren't seeking a marriage license in Alabama. They were seeking recognition of their out-of-state marriage for purposes of second-parent adoption. Alabama now recognizes their out-of-state marriage, thus they were not harmed by the Mobile probate judge denying marriage licenses to same-sex couples.

    The "Strawser" plaintiffs were seeking to be married in Alabama.This couple has been harmed by the denial of a marriage license.

    The lawyers should have filed the contempt of court motion for the "Strawser" plaintiffs, rather than for the "Searcy" plaintiffs. Personally, I see that as a stupidly elementary error on the part of the legal team.

  • 51. Pat_V  |  February 10, 2015 at 12:26 am

    Oh wow, great! thanks for updating the spreadsheet. Now we have more than a third of the population living in marriage equality counties, then! Did so many counties suddenly change their mind at the end of the day?

  • 52. Pat_V  |  February 10, 2015 at 12:33 am

    Yes, but if it comes to the Fifth circuit, will the stay decision be handled by the same favorable panel that heard the case last month, or by all judges, like it's done at SCOTUS? If all 5th circuit judges get to decide on whether to lift the stay, seems there is no chance of that happening…

  • 53. Zack12  |  February 10, 2015 at 12:36 am

    From my understanding, on the circuit court level only the judges that ruled on the case can decide whether or not to issue a stay.

  • 54. JayJonson  |  February 10, 2015 at 6:03 am

    Apparently, it is Moore. At least, he claims that to be so. I suspect that is why he is among the defendants in this law suit.

  • 55. JayJonson  |  February 10, 2015 at 6:11 am

    The Strawser plaintiffs, and many other couples denied by the Mobile probate judge, have now filed a lawsuit.

  • 56. JayJonson  |  February 10, 2015 at 6:13 am

    Thanks for this information.

  • 57. wes228  |  February 10, 2015 at 6:23 am

    But would it be the panel of judges assigned to the appeal of the merits decision or to the monthly motions panel?

  • 58. wes228  |  February 10, 2015 at 6:25 am

    Wasn't aware of the recent rulings in regards to same-sex marriage??? Did you follow up with a phone call to the fire department? Her pants on fire could've burnt the whole building down!

  • 59. 1grod  |  February 10, 2015 at 6:51 am

    Rick – its on the spreadsheet. I've added Lee after a straight supporter stated to HRC that same-gender persons were getting licenses in the line that she was in.

  • 60. 1grod  |  February 10, 2015 at 6:57 am

    Pat – like you, I'm drawing on a variety of sources, and relying on the apparent honest intentions of those who make them. But in a fluid situation your google spreadsheet allows for all of us to contribute. What is lacking is a timestamp for when the last person entered changes. Graeme

  • 61. A_Jayne  |  February 10, 2015 at 7:09 am

    I didn't connect that the couple on whose behalf the contempt order request was filed was, in fact, the couple married out-of-state.

    My read of Judge Granade's denial order is she saw two things wrong with the filing – the first of which was that Probate Judge Davis was not at that time under any order from the court for which he could be held in contempt for violating. Her second point was that attorneys had not shown proof of harm to their clients.

    The first seems a point of order – sue the right person. The second seems a point of evidence – prove your case.

    So, even filing a contempt motion on the part of their other clients would not fulfill that first point of order:

    "Probate Judge Don Davis is not a party in this case and the Order of January 23, 2015, did not directly order Davis to do anything. Judge Davis’s obligation to follow the Constitution does not arise from this court’s Order. The Clarification Order noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law. However, no such action is before the Court at this time."

    In a footnote, Judge Granade indicates that "1 Judge Davis was originally named as a defendant, but by stipulation of the parties (Doc. 29) was dismissed from the case." (IOW, when the "parties" agreed to sue only the AG, it was because the state assured all involved that the AG could provide relief as sought if the state lost its case – which has now been shown to be patently untrue by statements the AG has since made. What is the penalty for lying to a federal court, anyway?)

  • 62. Raga  |  February 10, 2015 at 8:15 am

    Normally, once a case is assigned to a merits panel, all subsequent motions are assigned to that same panel. So yeah, the same panel who heard oral argument will decide on the stay request.

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