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BREAKING: National Center for Lesbian Rights (NCLR) files motion to amend Alabama marriage case as a class-action, covering all same-sex couples in the state

LGBT Legal Cases Marriage equality Marriage Equality Trials

The National Center for Lesbian Rights (NCLR) has filed an amended complaint in the Strawser case, seeking to turn the challenge into a class-action lawsuit. The new pleading asks Judge Granade, who’s been overseeing all the federal litigation in the Southern District of Alabama, to certify a plaintiff class with all same-sex couples in the state who want to marry, and a defendant class of all county probate judges.

The amended complaint is here.

The NCLR legal team is joined by the ACLU, Southern Poverty Law Center (SPLC), And Americans United for Separation of Church and State.

Specifically, the filing says: “The Plaintiff Class is defined as: “All persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages.” The Defendant Class is defined as: “All Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.”

The case could potentially result in a formal federal decision requiring marriage licenses to be issued to same-sex couples throughout Alabama.

Shannon Minter, legal director at the National Center for Lesbian Rights (NCLR) told EqualityOnTrial, “Alabama couples deserve the security and protection that marriage provides. We hope that the court will act quickly to provide certainty to couples throughout the state and establish once and for all that Alabama’s same-sex couples have the freedom to marry.”

In an emailed press release, NCLR wrote, “The motion requests that the federal district court expand their lawsuit to cover all county probate judges in the state. In Alabama, probate judges are responsible for issuing marriage licenses. Today’s filing requests the federal district court order to require all probate judges to issue marriage licenses to same-sex couples.

The Alabama Supreme Court on Tuesday halted same-sex marriages in the state despite the U.S Supreme Court’s refusal to stay a lower court’s decision invalidating the ban.

“If Alabama officials thought we were going to sit back and allow them to deny same-sex couples their constitutional right to marry, they thought wrong,” said Ayesha N. Khan, legal director of Americans United. “We are going to fight for these couples.”

Susan Watson, executive director of the ACLU of Alabama, added, “Alabama needs to be on the right side of history. Marriage equality is coming to all 50 states. We will not give up the fight until marriage equality exists for all.””

42 Comments

  • 1. Wolf of Raging Fires  |  March 6, 2015 at 2:04 pm

    A class-action amendment to the lawsuit is a great idea. I hope the judge goes with it!

  • 2. Scottie Thomaston  |  March 6, 2015 at 2:06 pm

    It's awesome! It would mean the AL SCt could be bypassed.

  • 3. Wolf of Raging Fires  |  March 6, 2015 at 2:11 pm

    Could ALSC try to reiterate their order if this plan goes through?

  • 4. Zack12  |  March 6, 2015 at 2:29 pm

    Good, that bigoted and absurd the Alabama Supreme Court made shouldn't stand.

  • 5. DrBriCA  |  March 6, 2015 at 2:31 pm

    It could, but each and every county probate judge would be at risk of contempt of federal court by heeding the ALSC order. Plus, the AG is already under federal court order to not enforce the law, so he can't bring up or enforce any charges against the clerks for violating state law. There would finally be some use out of naming Strange in the original two lawsuits!

  • 6. guitaristbl  |  March 6, 2015 at 2:42 pm

    I wish this would have happened earlier not after all the circus that's going on now.

    Also the 11th circuit should become active in all that and stop expecting Granade to handle it by herself against a bigoted state Supreme Court. She is basically alone in all that judicially.

  • 7. DrBriCA  |  March 6, 2015 at 3:07 pm

    I agree. A class action lawsuit would've clarified things a lot sooner (same for the potential confusion Florida was facing and the ongoing chaos in Kansas).

    I wonder though what the 11th Circuit could do at this juncture to chime in, other than lift its own hold on any further proceedings on the cases pending review. They really want to sit this one out until June.

  • 8. ReadLearn  |  March 6, 2015 at 3:29 pm

    I wonder if any attorneys reading this think this will be all sorted out before SCOTUS rules?

  • 9. VIRick  |  March 6, 2015 at 3:35 pm

    A federal class-action suit is splendid! Still, it's not the first involving the issue of same-sex marriage. Here's what I wrote about the lawsuit in Georgia on another website in August 2014:

    "On 26 August 2014, the Georgia same-sex marriage case, "Innis v. Aderhold," originally filed on 22 April 2014 by Lambda Legal, has been expanded to a putative class-action suit on behalf of all unmarried same-sex Georgia couples and all Georgia residents with valid marriages from other jurisdictions but which are not presently recognized by the state of Georgia."

    Also, the "other" case in Virginia, "Harris v. Rainey," was also a massive class-action suit filed on behalf of all 14,000 (est.) unmarried same-sex Virginia couples.

    In any event, federal "class-action" is the way to handle a bad-ass state comprised of several District Court districts, as a "class-action" ruling will have state-wide application. On the downside, class-action suits are complex and cumbersome.

  • 10. RnL2008  |  March 6, 2015 at 3:38 pm

    Frankly, as I stated on the other thread, Judge Davis should be tossed in Prison until such a time as he realizes that he NEEDS to do his job……..I can't believe this jackazz is responsible for the mess in Alabama and then has the AUDACITY to NOT only ask the ASSC for an extension, but then turns around and asks the Federal Judge to Stay her injunction against him…….throw is pathetic homophobic azz in jail!!!

    Yes, folks….it's been that sort of day for me!!!

  • 11. VIRick  |  March 6, 2015 at 3:43 pm

    "A class action lawsuit would've clarified things a lot sooner."

    Oh absolutely, but remember, judges can only rule on cases and issues before them. Plus, "Strawser" began as an under-the-radar pro se case without any outside legal assistance whatsoever.

    Oh wait! That first sentence needs clarification. Judges can only rule on cases and issues before them, unless they're the Alabama Supreme Court.

  • 12. Decided_Voter  |  March 6, 2015 at 3:54 pm

    Did Kansas change theirs to a class action (which seems the more effective route to get it settled statewide)? Or are they trying a different way?

  • 13. brandall  |  March 6, 2015 at 4:22 pm

    I'm prophetic again. My EoT comment from 2 days ago:

    "To the ASC or other state judicial entities….If you proceed, you will be subject to enormous "pain and suffering" civil class action lawsuits that half the country's attorney's will take up for a percentage of the payout or pro bono just for the fun of it."

    And this is from someone who had no idea how civil rights jurisprudence worked 2 years ago. I am so happy for what this site has taught me.

  • 14. VIRick  |  March 6, 2015 at 4:31 pm

    Oh Brandall, don't be so modest! You're one of the biggest, sharpest, most astute brains here.

  • 15. VIRick  |  March 6, 2015 at 4:40 pm

    See my comment up above where I just summarized all of the class-action suits on the issue of marriage equality. To answer your question in a rather facile manner, Kansas went some other route.

  • 16. Wolf of Raging Fires  |  March 6, 2015 at 4:47 pm

    That works! Thanks, Doc!

  • 17. Wolf of Raging Fires  |  March 6, 2015 at 4:49 pm

    Unfortunately, my Rose, that wouldn't solve what has become a statewide quagmire. If it was just him avoiding his duty, I'd say go for it…but it's so much more than that now.

  • 18. DrBriCA  |  March 6, 2015 at 4:50 pm

    Yeah, I was going to comment on that as well, but I didn't feel like rehashing the whole thing. Part of the beauty of that first week of back to back rulings was that this pro se case slipped past all of us!

    Hopefully she'll add people as requested, assuming she's as annoyed as we are about the state Supreme Court trying to countermand her. We know from last month that she moves light-years faster on amendments compared with Crabtree!

  • 19. DrBriCA  |  March 6, 2015 at 4:55 pm

    Kansas added more plaintiffs and departments that were clearly ignoring the order. I believe they also included the governor this time, as he was directing the state not to recognize the unions (though I could be wrong).

    One of the big problems is that Crabtree has been painfully slow in ruling on the amended complaint. He keeps asking for more discovery and briefs. At this rate, it'd be faster to have the 10th circuit just finally rule against the appeal based on Kitchen and Bishop and just tell the rest of Kansas to get with the program themselves!

  • 20. Silvershrimp0  |  March 6, 2015 at 5:36 pm

    Sadly the AL Supreme Court order is just as valid (although I disagree with it of course) for now as the federal district court ruling. The only court that can overturn a state supreme court ruling is SCOTUS. The only way get this resolved is to either wait it out until June/July, or have someone appeal the AL Supreme Court ruling to SCOTUS.

  • 21. Wolf of Raging Fires  |  March 6, 2015 at 6:07 pm

    Nice use of facile. :)

  • 22. RnL2008  |  March 6, 2015 at 7:56 pm

    I frankly DISAGREE….it may be valid for the OTHER counties, but it is NOT valid for Mobile, Alabama and Judge Davis is in contempt!!!

  • 23. 1grod  |  March 6, 2015 at 8:56 pm

    Silver: For argument sake, assume your position is right, that is there is nothing district or circuit courts can do to change the status of issuing marriage licences as both state and federal courts can interpret the USA Constitution. Who could appeal to the US Surpremes? Probate Judges. In my view, it is unlikely the Supremes would consider a petition for certiorai and hear it this term. Which leaves those seeking to be married to wait the decision of the Court's oral arguments on April 28.

  • 24. Silvershrimp0  |  March 6, 2015 at 9:06 pm

    I'm not sure they'd issue a ruling on the merits this term, but they might be willing to stay the AL SC order. My understanding is that the AL SC broke convention of how federal and state courts share jurisdiction, so I think SCOTUS would eventually want to make it clear what happens in this circumstance as the probate judges have been put in an impossible position. If they comply with the federal order they could face sanctions, and if they comply with the state order they could be held personally responsible for damages. It's legal chaos and SCOTUS really needs to clear things up.

  • 25. RnL2008  |  March 6, 2015 at 10:07 pm

    Probate Judge Davis is the one true person TOTALLY responsible for the mess in Alabama. By asking the ASSC to step in and give him direction along with the idiot anti-gay organizations who SHOULDN'T have been allowed to intervene in the first damn place, more lawsuits had to be filed in order to clean up this mess…..and then DAVIS has the AUDACITY to ask the ASSC for an extension for his reply and at the same time asks Judge Granade to issue a stay so that he DOESN'T have to do his job…….no matter how you want to claim the ruling from the ASSC is valid……I DON'T believe it is!!!

  • 26. Wolf of Raging Fires  |  March 6, 2015 at 10:14 pm

    I agree with you wholeheartedly about the Alabama Supreme Court. Their ruling was completely out of line.

  • 27. DrBriCA  |  March 6, 2015 at 11:31 pm

    I agree. Davis really has been at the epicenter of this chaos, much more so than our old buddy Moore. He already required the first amendment to the Strawser case in order to start licensing, and he still has to answer for his reluctance to recognize the Searcy marriage for the adoption purposes. He had no qualms rushing to the ASSC for clarification or stop issuing licenses once the ASSC "ruled," and yet he needs an extension when the ASSC itself asks for more clarification from him. Plus he's pursuing a stay in a federal case that already has been given the go-ahead by SCOTUS a month ago!

  • 28. RnL2008  |  March 6, 2015 at 11:37 pm

    Yep……and I really believe he needs to face the consequences for his actions…….if ANY every day American refused to follow Court rulings, you'd know in a hot minute, we'd be taken off to jail for at least being in Contempt.

  • 29. flyerguy77  |  March 6, 2015 at 11:39 pm

    Totally agreed, it smells fishy this mess is caused by Don Davis, CJ Moore and the info about Justice Parker is huge flag.. I believe its an inside job by Moore and Parker.. Definitely, it sounds like Parker needed to recuse himself because of the connection with the stay seekers.. it needs to be an investigation of this decision.. maybe this summer..

  • 30. flyerguy77  |  March 6, 2015 at 11:53 pm

    I have a feeling she will deny Davis' request for a stay and maybe order all of counties to start issuing marriage licenses to all couples, threat with them contempt of court and ask ALA SC TO vacate their decision because of supremacy cause

  • 31. DrBriCA  |  March 7, 2015 at 12:40 am

    The last part might be a stretch, but I do agree that she's shown enough of a backbone in this fight that she'll stand by her decision and will deny the stay. SCOTUS itself already declined to stay the ruling a month ago! Plus she'd about the here why Davis thinks he doesn't have to grant an adoption in the Searcy case, as well, so he still is going to have a day in court with her.

    One thing I realized earlier is that there probably isn't that great of a threat of contempt of the state judiciary as one would expect for not heeding the ALSC's bogus order. One of the primary enforcers would be the Attorney General, and he's still under direct order from Granade to not enforce said laws! If anything, it'd be smarter for her to remind Davis and Strange about this rather than get back into the pissing contest with the ALSC.

  • 32. JayJonson  |  March 7, 2015 at 6:53 am

    Yes. As I pointed out on another thread, both the Attorney General and the Governor are under direct order not to enforce the laws against marriage equality. The Governor specifically assured the probate judges that they would not be prosecuted for violating the laws that were held unconstitutional.

    Judge Granade is a very careful jurist. She is not likely to do anything but go by the book. That being said, she is also firm and will not stand for grandstanding and game playing. I expect that she will calmly remind the probate judges of their responsibility to follow the Constitution of the United States as interpreted by the federal judiciary and also remind them that consequences will follow if they persist in denying constitutional rights to their constituents.

    The problem with Judge Granade's approach is that she is thorough and will allow generous time for briefings to be filed and responded to, which will consume time.

    What is needed is for some probate judges with enough gumption to announce that they are not going to obey the Alabama Supreme Court ruling and begin to issue marriage licenses to same-sex couples.

  • 33. ianbirmingham  |  March 7, 2015 at 8:45 am

    The AL SC didn't break convention on how federal and state courts share jurisdiction, but they did very cynically and deviously exploit it.

    As I have tried to explain repeatedly, both the state courts and the federal courts are able to create their own interpretations of federal law, and the decisions of the US Supreme Court are the only means by which potentially 60+ different conflicting interpretations can be reconciled. In the meantime, both state and federal courts are free to issue their own potentially conflicting orders based on their own conflicting interpretations.

    It may be helpful to think about double jeopardy here. A person who commits a single act can legally be arrested, tried, convicted and sentenced twice for the very same action, once by a state court and then again by a federal court. In the US system of federalism, the state and federal governments are different sovereigns and they can act independently against you. Two different states are also two different sovereigns, so you can also be arrested, tried, convicted and sentenced twice for the same action by two different states. See http://www.tlgattorneys.com/2010/08/the-constitut

    Now think about how this applies to probate judges. If the federal court (the good bully) says "Do this or I'll kick your ass", and then a state supreme court (the bad bully) says "Do the exact opposite or I'LL kick your ass", the hapless probate judge is caught between two bullies. Neither bully has any power over the other, but they both have power over the probate judge. Only the US Supreme Court can grab these two bullies by the collar and say "Do it MY way or I'll kick ALL your asses!"

    At this point one might reasonably think "what a SNAFU" and that would be correct. The Founding Fathers were of the opinion that it was a damn good idea to have many different authorities independently interpreting the US Constitution, with the US Supreme Court being responsible for settling the differences. For the most part it works reasonably well, but in rare situations like this you can get a perfect storm of clusterfuck resulting in ludicrous situations. And that is exactly what we are seeing here.

    Since the probate judge is part of the state's government, its primary responsibility is to the state and it would have to comply with the state supreme court's orders and suffer whatever penalties the federal court hands out. The state of Alabama would wind up paying those penalties.

  • 34. montezuma58  |  March 7, 2015 at 10:55 am

    Agree. The AL Supreme Court proceedings were contrived to generate a conflicting ruling after the federal courts weighed in. The state courts were just punting to the state's constitution before. They wouldn't have dared touch marriage equality from a federal perspective beforehand. But now that they have nothing to loose they rush a "case" through to gum up the works.

  • 35. ianbirmingham  |  March 7, 2015 at 11:28 am

    Here's another knuckle-dragging moment in Alabama history: a group of KKK fans has just put up a billboard at the foot of the Edmund Pettis bridge in Selma, Alabama (site of the infamous nationally televised brutal police attack on unarmed African-American voting rights protesters 50 years ago) depicting and praising Nathan Bedford Forrest (the Founding Father of the Ku Klux Klan) and inviting visitors to explore Alabama's historical tourist sites related to the Civil War….

    http://www.dailymail.co.uk/news/article-2984137/K

  • 36. ianbirmingham  |  March 7, 2015 at 3:19 pm

    The probate judges can't do that. Their duties are "ministerial" (non-discretionary) and they cannot take it upon themselves to interpret the Constitution. Choosing between conflicting interpretations of the Constitution is what real judges do, and ministerial officials can't do that.

    Remember back in 2004 when Gavin Newsome got San Francisco issuing same-sex marriage licenses because he and the county clerk decided that not doing so would be unconstitutional? The California Supreme Court ruled that the county clerk could not interpret the Constitution – only judges can do that.

    http://web.stanford.edu/~mrosenfe/Lockyer_v_San_F

  • 37. Rick55845  |  March 7, 2015 at 7:09 pm

    Ian, the probate judges do not need to interpret the constitution themselves in order to start issuing marriage licenses to same-sex couples. Judge Granade has done that already. She struck down the provisions of Alabama's constitution and statutes that ban marriage between persons of the same sex and recognition of the same because they violate 14th amendment due process and equal protection. Even though only one probate judge is named in her order, the others can rely on her interpretation of the constitution. So they can simply choose to start issuing licenses despite the Alabama Supreme Court's order.

  • 38. ianbirmingham  |  March 7, 2015 at 9:27 pm

    Incorrect. Choosing between the AL SC's interpretation and the federal district court's interpretation is what real judges do, and ministerial officials can't do that.

  • 39. 1grod  |  March 7, 2015 at 9:46 pm

    Silver: What is the path to get to the US Supremes?

  • 40. Silvershrimp0  |  March 7, 2015 at 9:50 pm

    I would imagine a probate judge, or possibly the governor or AG, would have to appeal the AL SC order. I haven't heard of anyone trying to appeal the AL SC ruling, so I'm not sure they'll do anything. SCOTUS could also take it up sua sponte, but that doesn't seem likely

  • 41. Sagesse  |  March 8, 2015 at 10:23 am

    It's Alabama. And (mostly) the author isn't even talking about the decision that halted the issuance of marriage licences in the state. Evidently, that's only the second most political thing the AL SC did last week.

    Where justice goes to die: Alabama Supreme Court follows politics, not the law
    http://www.al.com/opinion/index.ssf/2015/03/where

  • 42. JayJonson  |  March 8, 2015 at 4:08 pm

    You keep repeating this mantra, but that doesn't make it any more correct. The probate judges must choose between obeying one of two orders given to them. They can as easily obey the order from Judge Granade as the one from the Al Supreme Court. In fact, they can do so with the knowledge that they will not be prosecuted by the state of Alabama for doing so.

    I suspect that most of them are simply political hacks with no courage, so they will do the thing that looks easiest and is less inclined to stir the wrath of voters. But it is silly to say that they cannot do the right thing.

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