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BREAKING: Federal judge hearing Alabama marriage cases clarifies decision: “the Constitution requires the Clerk to issue… licenses”

LGBT Legal Cases Marriage equality Marriage Equality Trials

In a new order in Searcy v. Strange, the district court judge who is overseeing the two recently-decided marriage cases in Alabama responded to the request to clarify the scope of the Searcy decision, stating that “the Constitution requires the Clerk to issue [marriage] licenses” to same-sex couples.

The decision resembles a recent order that a district court judge in Florida issued clarifying the decision striking down that state’s ban.

The Searcy order says that, because the case involved only one same-sex couple, the injunction only extends to that one couple. But citing the language from the Florida order, the judge noted that the US Constitution bars the state from denying marriage to same-sex couples and refusing to recognize lawful marriages:

[I]f the stay is lifted, the Judgment in this case makes it clear that ALA. CONST. ART. I, §36.03 and ALA .CODE §30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

This means both parts of the ban are unconstitutional, and so any county that operates under the ban is doing so in violation of the Constitution.

Presumably, as was suggested in the Florida case, the judge could add additional parties to the case if they are denied their Constitutional rights.

Thanks to Equality Case Files for these filings


  • 1. samg68  |  January 28, 2015 at 10:08 am

    Good move by saying "look what happened in Florida". Hinkle's order was a strong rebuke to recalcitrant officials.

    Interesting wording though,

    "If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period…"

    Almost inviting the 11th immediately lift the stay before the 9th Feb.

  • 2. Scottie Thomaston  |  January 28, 2015 at 10:12 am

    She said the same thing in her denial of a stay pending appeal/grant of a 14 day stay: something like referencing the Eleventh Circuit possibly dissolving the stay themselves.

  • 3. RQO  |  January 28, 2015 at 10:50 am

    The train has left the station, Elvis has left the building, a "colored" man is POTUS, Homos are legal and "uppity" – and still Jesus (funny, he doesn't LOOK Jewish) and/or the 4 Horsemen of the Apocalypse have not appeared. That aside, if there is a way other than simple passage of time we can assure the citizens of Alabama the world has not ended, we should offer it up to them. After 7 years in an ultra-consertvative neighborhood in CO (biting my tongue most of the time), I reluctantly concurr: hearts first, minds (rather limited) second.

  • 4. RnL2008  |  January 28, 2015 at 11:28 am

    Dude, lucky I wasn't drinking anything otherwise I would have sprayed my monitor…….that was a good one!!!

  • 5. A_Jayne  |  January 28, 2015 at 12:37 pm

    We can remind the citizens of Alabama that gay people and our supporters still walk among them. When the rapture occurs, all those who freely "love one another" (as their deity instructs) will be gone, while those who have failed to follow that instruction will be left in squalor.

    Apparently their deity agrees with the direction the country is taking, at least on this issue, and wants those loving people to continue to provide a good example for others who may someday be able to learn from it.

  • 6. RobW303  |  January 28, 2015 at 1:53 pm

    What I don't understand is that the predictions of these scaremongers grow ever more outrageous, and on ever flimsier pretexts, while NONE of their predictions come true, yet people still pay attention to them. How irrational and gullible must you be to give them any credence (much less money) at all?? When will the media stop giving these hyperbolic cranks buzz?

  • 7. ebohlman  |  January 28, 2015 at 9:48 pm

    It's largely a cognitive dissonance effect: nobody really wants to admit they've been duped, and so everybody (and I do mean everybody) will come up with the most ridiculous (to anybody not directly involved) rationalizations to justify that they haven't.

    It's not a matter of intelligence or the lack thereof; as Michael Shermer famously said "smart people believe weird things because their intelligence makes them especially skilled in defending to themselves decisions they made for non-smart reasons." Increasing intelligence simply leads to more elaborate and truthier-sounding rationalizations.

    Combine that with the personality trait of authoritarianism (see Robert Altemeyer's The Authoritarians) and an epistemological style that emphasizes "believing a person" as opposed to "believing a person's assertions" and you get people who are simply psychologically unable to do anything but dig harder when they find themselves in a hole.

  • 8. Mike_Baltimore  |  January 28, 2015 at 1:55 pm

    I think the 'good' people of Alabama also need to be reminded that several states voted on ME in 2012, passed ME by various margins, and now more than two years later, those states are still in existence and have had nothing bad happen (if we forget the election of a GOTP Governor in Maryland).

  • 9. Waxr  |  January 28, 2015 at 3:28 pm

    I looked up to see if it was raining fire and brimstone, but the whether was clear.

  • 10. Tony MinasTirith  |  January 28, 2015 at 6:23 pm

    Fire and brimstone are soooooo pre-history. Nowadays it's all about Tsunami's, sink holes, earth quakes and polar vortexes.

  • 11. franklinsewell  |  January 28, 2015 at 11:54 am

    Hahahahahahahahahahahahahah – She cut and pasted from Judge Hinkle's clarification in Florida! I love it.

  • 12. VIRick  |  January 28, 2015 at 8:20 pm

    Federal Judge Granade's clarification order cites federal Judge Robert Hinkle's similar clarification order in Florida, in this copy-and-paste portion:

    "History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And 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."

  • 13. guitaristbl  |  January 28, 2015 at 12:16 pm

    So we have a ruling striking down the recognition ban, a ruling striking down the celebration ban and a clarification of these rulings that makes it as clear as Hinkle did in Florida that while the injunction here only concerns the couple, the constitution binds the clerks and probate judges.

    Do Strange and Bentley want anything more ? If the stay is lifted the course the state has to follow is clear. The state officials have a choice : either stick to their duty and follow the federal constitution allowing the ruling to take effect smoothly or take Moore's advice and revive the Wallace era in Alabama by forcing the national guard to come in to protect LGBT citizens and their rights. I do hope Alabama makes the right choice this time around.

  • 14. RnL2008  |  January 28, 2015 at 12:36 pm

    Oh but didn't you read the wonderful fundie letter from Chief Justice Moore that clearly shows just was an azz he is and unfamiliar with the laws of this Country…… should be dumped into a toxic waste bin!!!

  • 15. RobW303  |  January 28, 2015 at 1:56 pm

    Unfamiliar? He did it once before, and was removed from the bench because of it. Then was reelected. Yep, Alabamans willingly elect discredited judges.

  • 16. RnL2008  |  January 28, 2015 at 2:04 pm

    Again, Stupid should hurt and the reason why we still need the Electoral College is evident by the idiots in Alabama who reelected this jackazz!!!

  • 17. Tony MinasTirith  |  January 28, 2015 at 4:50 pm

    If there was any doubt from 5 Supreme Court Justices of pure and outright animus and hate towards same sex couples, they need to look no further than Alabama "Chief Justice" Moore. He is on record with his animus and his belief that he is the law unto himself. After being censured and deposed as Chief Justice for defying a federal court in 2000/2001, Mr. Moore is going at it again and trying to rally the Governor into the same lawlessness. He not only needs to be stripped of his position…AGAIN, he needs to cool his heels for a few years in a Federal Penitentiary since he didn't learn his lesson the first time. Lets see how high and mighty he is after 2-3 years with Rod Blagojevich as his bunk mate. Being the new kid on the cell block he'll be Blagojevich's Beatch. Not only is he advocating defying federal court orders and breaching judicial ethics AGAIN, he's now adding to his lawlessness by trying to contribute to the delinquency of a Republican State Governor. Moore should get extra time in federal prison for attempting to subvert state officials into lawless defiance of Superior Courts. How well did it work out for governor George Wallace, also of Alabama, when he attempted to defy Federal Court orders? Alabama is not a sovereign nation unto itself, as much as Mr. Moore would like to think it so.

    If either the Governator or Judge Moore needs a civics refresher, Alabama is one state in a Federal Republic who's highest and absolute law is the Constitution. Article VI, Paragraph 2 of the Constitution, aka the Supremacy Clause, establishes that the federal constitution, and federal law , take precedence over state laws, and even state constitutions.

    Here's the Text of the Constituition for them:

    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

    Any 4th grader can understand the plain English text of the Federal constitution. But apparently not a christianist fascist Chief Justice. By reading Mr. Moore's comments on gays stating that Alabama has the power to put them to death, it should be clear to Justice Kennedy that chistianist fascists are just as dangerous and just as full of hate and murder as radical Muslims. The bible calls for stoning to death, sanctioned slavery and rape, and human sacrifices…as a society, the US has moved beyond the Old Testament. It's one thing when Bryan Fischer of the AFA, and Brian Brown of NOM call for State Officials to defy the Federal Judiciary…when the highest judicial officer of a state court advocates it and tries to reel in and corrupt the Governor, that's a whole other contemptible thing.

  • 18. Brad_1  |  January 28, 2015 at 5:07 pm

    Question to EoTers:

    Do you know if the Supreme Court could consider Moore's animus as the court weighs the 6th Circuit cases this spring; or if Moore's animus cannot be considered/raised because Moore/Alabama have no connection to the 6th Circuit cases?

  • 19. sfbob  |  January 28, 2015 at 5:10 pm

    If the issue of animus is raised in court filings or at the oral argument stage I doubt it makes much difference whether that animus is expressed somewhere in the 6th District or elsewhere; it can and should be mentioned since the court's decision will affect the entire nation.

  • 20. Tony MinasTirith  |  January 28, 2015 at 5:15 pm

    Since the Court is being asked to set National Policy, there is no reason an attorney can't bring up relevant evidence of animus from anywhere in the US. In a lower court an attorney could not submit new evidence. There is no such restriction at the Supreme Court.

  • 21. VIRick  |  January 28, 2015 at 12:34 pm

    "She cut and pasted from Judge Hinkle's clarification in Florida! I love it."

    She must read EoT because several members suggeted that she do precisely that. Hinkle knew what he was doing, and originally issued a preliminary injunction which allowed for clarification on top of clarification. Following in the footsteps of a fellow Southerner who knows how to handle Southerners, so did she. Thus, she can keep on clarifying her clarification, if need be, until even of the dumbest of the obfuscating dumb-asses get it. It's doing the Southern expression in print, "You've been told." Sometimes, it's even necessary to repeat that a few times,– and to remind them, along the way, that one can.

  • 22. Tony MinasTirith  |  January 28, 2015 at 5:11 pm

    In June the Supreme Court will overturn the 6th circuit. They will definitely say that states must apply the laws [of marriage] equally, thereby being required to issue licences to TWO people of the same sex. We may be seeing the Obama administration order the U.S. Military to be prepared to enforce the Supreme Court's order allowing same sex couples to lawfully apply for marriage licences and get married. And I thought Kansas was being stubborn.

  • 23. scream4ever  |  January 28, 2015 at 8:52 pm

    Speaking of Kansas I think the briefs are due shortly and we should then have a clarification ruling handed down not long after that!

  • 24. montezuma58  |  January 28, 2015 at 4:28 pm

    The probate judges association finally admits what they really knew all along. That is the ruling does apply to them.

  • 25. davepCA  |  January 28, 2015 at 5:27 pm

    Well bless their hearts.

  • 26. VIRick  |  January 28, 2015 at 5:47 pm

    They've been told, so yes, indeed, bless their hearts!

  • 27. Tony MinasTirith  |  January 28, 2015 at 6:06 pm

    Thanks for the awesome news update Montezuma!

    Do not mess with a Federal Judge. Capitulation looks great on bigots!

    "It is the opinion of the Association, on the advice of legal counsel, that until the stay is lifted, probate judges cannot issue marriage licenses to same sex couples," Monroe County Probate Judge Greg Norris, the group's president, said in a prepared statement. "However, on the occasion that the stay is lifted, same sex couples may apply for marriage licenses."

    So much for grandstanding…didn't last a week. Let this be a lesson to Georgia, Nebraska, North and South Dakota.

  • 28. Tony MinasTirith  |  January 28, 2015 at 6:01 pm

    On an off topic note, does anyone know what the status is of the case at the Hawaii Supreme Court, McDermott v. Abercrombie? I believe the Hawaii Supreme Court was supposed to hear oral arguments in the case last month. This is the case where the state representative McDermott and three other individuals challenged the constitutionality of the Hawai'i Legislature’s authority to enact the Hawai'i Marriage Equality Act of 2013.

    I'd like to see the Hawaii Supreme Court knock this fool tool [McDermott] down once and for good. McDermott is another tool of animus that won't die (figuratively speaking of course).

  • 29. Zack12  |  January 28, 2015 at 8:48 pm

    McDermott is merely doing the bidding of DINO Mike Gabbard, who doesn't want to be seen as the face of the anti-gay movement in Hawaii now that his daughter Tulsi (whom we shouldn't trust) is a rising star in the Democratic party.
    IMO, Gabbard is the one behind all the anti-gay antics we've seen in Hawaii including this.
    After, he is the one that founded the group that pushed for the ban to be put on the ballot to start with way back in 1998.
    Give how vile and hateful he was back then, hard to believe he is dealing with the loss of his amendment that well.
    As for the status of it, we should hear something in the next five to seven weeks.

  • 30. Tony MinasTirith  |  January 28, 2015 at 6:28 pm

    Unofficial Count Down timer to Estimated Date for Nationwide Marriage Equality
    June 30, 2015

  • 31. Tony MinasTirith  |  January 28, 2015 at 7:32 pm

    American Family Association Evangelist Bryan Fischer Has Been Fired, Maddow Reports

    This day just keeps getting better and better!

  • 32. RnL2008  |  January 28, 2015 at 7:42 pm

    I'm so sorry for him……….lol…..NOT

  • 33. Tony MinasTirith  |  January 28, 2015 at 8:48 pm


  • 34. RQO  |  January 28, 2015 at 8:19 pm

    In the nick of time, the Probate Judges of Alabama remember their legal education, and manners.

  • 35. montezuma58  |  January 29, 2015 at 4:34 am

    Probate judges in AL are not required to have gone to law school or be licensed to practice law (except for a few counties). Most of them do have legal background but there are a few that are former insurance salesmen or such.

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