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One same-sex couple challenging Alabama’s marriage ban opposes stay in Eleventh Circuit

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A response to the state of Alabama’s request for a stay in Searcy v. Strange has just been filed by lawyers for the couple who successfully challenged the ban.

The couple opposes any further stay in the case, suggesting that, “It it clear that [the state] ha[s] little or no chance for success, that the state of Alabama will not be harmed, that Appellees and others similarly situated will suffer immediate, identifiable harm, and the public interest lies in favor of lifting the stay.”

The response points out, as the lower court decision had, that the state’s argument that it will suffer irreparable harm if no stay is granted because of the uncertainty of the legal validity of marriages performed or recognized after the stay is lifted, is more so an argument that the same-sex couples will face harm. That’s not the standard for irreparable harm in this case.

The motion is time-sensitive, as the temporary stay is set to expire on February 9, so we can likely expect a quick ruling.

The Eleventh Circuit has previously denied a similar request in the Florida marriage case.

Thanks to Equality Case Files for these filings


  • 1. Decided_Voter  |  January 29, 2015 at 12:01 pm

    Do we know the judges on the 11th's stay panel?

  • 2. Scottie Thomaston  |  January 29, 2015 at 12:10 pm

    It looks like it might be the same as the panel that decided the FL stay.

  • 3. Zack12  |  January 29, 2015 at 12:14 pm

    That will be good for us.
    We do not want a combo of the judges from Alabama hearing this.

  • 4. Scottie Thomaston  |  January 29, 2015 at 12:27 pm

    Well one could counter that by noting that Judge Higginbotham in the Fifth Circuit is from Alabama 🙂

  • 5. Zack12  |  January 29, 2015 at 12:37 pm

    We could but Edward Carnes and Will Pryor are more in the mold of Roy Moore then him.

  • 6. guitaristbl  |  January 29, 2015 at 12:34 pm

    What a coincidence that the only active judges on the 11th from Alabama are the only republican appointees at the same time..

  • 7. Raga  |  January 29, 2015 at 12:24 pm

    One way to find out is to see other (signed) recent orders from the 11th on similar motions in other cases. If there is a motions panel that rotates every month or so, we can learn who this month's motions panel is. Since the Florida stay was decided in December, it is possible we have a different panel for January, depending on how often the panel rotates.

    Another possibility is, if a merits panel has been assigned already to the Florida appeal, this motion might be referred to that panel. There is no way of knowing this though.

  • 8. Scottie Thomaston  |  January 29, 2015 at 12:26 pm

    According to the rules, it looks like these panels are put together in October and only changed if the status of a judge on the court changes. That is, if they take senior status, pass away, or retire, or a new judge is appointed. It doesn't seem like anything has changed since the last panel so I'm really thinking it's the same.

  • 9. Raga  |  January 29, 2015 at 12:30 pm

    Oh good! Then the outcome of this stay request is all but certain 🙂

  • 10. Raga  |  January 29, 2015 at 12:38 pm

    I looked up the rules, and here's the relevant excerpt from the Eleventh Circuit's Internal Operating Procedures (IOP):

    1. Routing Procedures to Judges. Pre-submission motions requiring consideration by judges are assigned to motions panels. Composition of these panels is changed at the beginning of each court year in October, and upon a change in the court’s membership. The clerk submits the motion papers to the judges assigned in rotation from a routing log, the effect of which is to route motions randomly to judges based on filing date. In matters requiring panel action, the papers are sent to the first judge (initiating judge), who will transmit them to the second judge with a recommendation. The second judge in turn sends them on to the third judge who returns the file and an appropriate order to the clerk.
    2. Emergency Motion Procedure. Emergency motions are assigned in rotation from a separate emergency routing log. The papers are forwarded to all panel members simultaneously. If the matter requires that counsel contact panel members individually, the clerk after first securing panel approval will advise counsel (or parties) of the identity of the panel members to whom the appeal is assigned.

    Since the word "panels" is in plural, there seems to be some ambiguity – perhaps there are several motions panels that are formed in October, and every motion is assigned to one of these at random?

    Page 99 of

  • 11. mariothinks  |  January 29, 2015 at 12:06 pm

    Did the 11th ask for a response?

  • 12. Scottie Thomaston  |  January 29, 2015 at 12:07 pm

    Not as far as I know.. But the parties are allowed to file one.

  • 13. mariothinks  |  January 29, 2015 at 12:10 pm

    Thanks Scottie!

  • 14. Elihu_Bystander  |  January 29, 2015 at 1:42 pm

    Reading the plaintiff's brief, I have noticed a number of incomplete sentences and serious grammatical errors. A simple proof read could have avoided these.

    They were serious enough to cause me to loose my syntax as I was reading the brief.

  • 15. samg68  |  January 29, 2015 at 2:39 pm

    Not uncommon though, plenty of judge's orders have been just as bad.

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