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Alabama’s governor, Robert Bentley, files briefs urging Eleventh Circuit to put same-sex marriages on hold in the state

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In both Searcy v. Strange and Strawser v. Strange, Governor Robert Bentley of Alabama has asked the Eleventh Circuit Court of Appeals to extend the temporary stay that’s due to expire on February 9 until the appeals process is over.

The governor’s arguments largely rely on the Tenth Amendment to the US Constitution, suggesting that the amendment “guarantees” the power to define marriage to the states:

The District Court failed to consider the Attorney General’s argument that the power to define the incidents of marriage is reserved to the States. The Tenth Amendment guarantees this power to the States. As the United States Supreme Court affirmed in Windsor, the States have the sovereign power to define the incidents of the marital relation.

Along with citing US v. Windsor for that proposition, the brief relies on another Supreme Court case, Schuette v. BAMN to suggest that the right to marry is left up to the political process:

As the Supreme Court stated last term, the people of the sovereign States have a “fundamental right” that is “held in common,” the right “to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” Schuette v. Coal. to Defend Affirmative Action, 134 S.Ct.1623, 1637 (2014). And “[t]hat process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the votersare not capable of deciding an issue of this sensitivity on decent and rational grounds.” Id.

Both arguments have been made countless times in these cases.

The filing also claims confusion and uncertainty over which laws are unconstitutional and how the state should go about granting licenses to same-sex couples.

The same attorneys earlier filed a brief on behalf of the Alabama Probate Judges Association supporting a stay.

The Eleventh Circuit could act on the request at any time. The stay will otherwise expire on February 9.

Thanks to Equality Case Files for these filings


  • 1. guitaristbl  |  January 30, 2015 at 10:42 am

    And her come Schuette again to bite us from the back..I am still waiting to see a comforting way to counter Schuette's rhetoric from court opinions to be honest..

  • 2. Zack12  |  January 30, 2015 at 10:45 am

    There are ways to counter it but virtually all of them mean throwing the black community and affirmative actions programs under the bus.

  • 3. BillinNO  |  January 31, 2015 at 9:38 am

    (Essentially schuetting ourselves in the foot?)

  • 4. Rick55845  |  January 30, 2015 at 11:00 am

    It's simple. Affirmative action is a policy matter. Schuette v. BAMN doesn't deal with civil or fundamental rights or the due process and equal protection aspects of the 14th amendment. Policy matters can be left to the States, and to the voters. That's essentially what the majority opinion was in Schuette.

    Marriage equality, on the other hand, DOES deal with fundamental rights and 14th amendment guarantees. States cannot deprive individuals of their constitutional rights without due process and compelling interest.

  • 5. Decided_Voter  |  January 30, 2015 at 11:46 am

    Looks good to me. Clear, simple and to-the-point.

    Does this work for you guitaristbl?

  • 6. guitaristbl  |  January 30, 2015 at 12:04 pm

    It does work for me but that's not the point. Has any opinion thus far articulated that position ? That's the point.

  • 7. Decided_Voter  |  January 30, 2015 at 12:23 pm

    It's encouraging to see the vast majority of the opinions have still been pro-equality post-Schuette. The judicial record, developments in constitutional law, and trajectory are still pro-equality even when considering that. If it radically would've changed things, we likely would've seen that by now.

  • 8. davepCA  |  January 30, 2015 at 2:01 pm

    It seems to me that it's been articulated several times that the 10th amendment does not empower a state to enact measures that violate any of the federal Constitution's other mandates such as Equal Protection and Due Process.

    States cannot enact and enforce unconstitutional laws or state amendments.

    Not via the state legislature, not via public referendum, not via any method.

    This has been well understood for a very, very long time. Schuette doesn't change that.

  • 9. DrBriCA  |  January 30, 2015 at 2:31 pm

    I don't remember the specific ruling, but one of the recent post-Oct 6 rulings actually did incorporate Schuette in a pro-ME way. I apologize that I can't pinpoint it now (the hardship of having SO MANY pro-ME rulings!). I feel like it was either Kansas during the discussion of why the judge had the right to still rule while a similar case was also in the state court system or one of the recent district rulings from the 8th circuit. I feel like it was in a decision that needed a lot of maneuvering around certain arguments (either Kansas or the way the 8th circuit states needed to avoid Bruning).

    Again, I apologize that I can't pinpoint at this time (maybe VIRick could, as he's got a great memory), but there was one decision that incorporated Schuette, and I remember several posters on here excited to see a different way of incorporating the decision.

  • 10. Tony MinasTirith  |  January 30, 2015 at 3:37 pm

    VIRick is the Memory Alpha of EoT.

  • 11. VIRick  |  January 30, 2015 at 6:13 pm

    DrBri, now you've put me on the spot because I, too, can not find the reference. It's not in the district court decisions from Missouri, Arkansas, or South Dakota, so it must be in one of the rulings from Kansas.

    From the proceedings of the hearing on 31 October 2014, in "Marie v. Moser," I did find this:

    Kansas Assistant AG Fabert tried to persuade Judge Crabtree that the federal court should defer to the state Supreme Court. He cited a 1969 case in which the U.S. Supreme Court ruled that a federal district court could not enforce an injunction in a dispute between a railroad company and a labor union while the matter was pending before a Florida state court.

    “The Kansas Supreme Court has to be allowed to go forward,” Fabert said, arguing that the federal court lacked jurisdiction. “I would not be surprised if the Kansas Supreme Court has a decision within a day or two (after oral arguments).”

    Crabtree did not appear particularly swayed by his argument. “This is not a labor dispute,” he said. He pointed out that the 10th Circuit Court of Appeals had already found that same-sex couples have a “fundamental constitutional right” to marry.

    Then, a bit later, there's a lot of noise about policy:

    The Kansas governor’s office confirmed Wednesday, 19 November 2014, that state agencies would not change policies while the state continues to fight the overturning of its constitutional ban on same-sex marriage in the 10th Circuit Court of Appeals, despite the fact that the 10th Circuit has already (twice) ruled that the same bans in both Oklahoma and Utah are unconstitutional.

    On 26 November 2014, the ACLU revised its on-going lawsuit over same-sex marriage in Kansas, "Marie v. Moser," to include claims that the state is refusing to recognize unions performed in Kansas and other states. Their amended complaint seeks to force the state to recognize same-sex marriages for spousal health insurance benefits, state tax filing purposes, and driver’s license name changes.

    On the same date, Gov. Sam Brownback’s administration said that it will not make any policy changes to recognize same-sex couples while it defends the Kansas ban, and that all state agencies would take whatever actions are needed once the issue is resolved.

  • 12. DrBriCA  |  January 30, 2015 at 6:21 pm

    I'm certain it showed up once. Or maybe I'm confusing it with a handful of pro-ME rulings from the 10th circuit that actually used Hobby Lobby in a positive manner for protection of individual rights.

    Speaking of Kansas, when is Judge Crabtree going to finally issue a ruling on the amended complaints and take the Brownback administration to task?

  • 13. VIRick  |  January 30, 2015 at 6:37 pm

    "I'm certain it showed up once."

    Dr. Bri, I'm not saying you're wrong, I'm just saying that I can't find the reference. The several rulings from within the 8th Circuit did not use "Schuette" to dance around "Bruning," so we have to look elsewhere.

  • 14. Rick55845  |  February 2, 2015 at 8:21 am

    I'm not sure if this was the only case that referenced Schuette in an ME-positive fashion, but I know it was referenced in the appellant's brief in the Louisiana case, Robicheaux v Caldwell, on appeal to the 5th Circuit.

    This is the appellants brief:

    See page 18 and 19, and page 40 and 41.

    From page 18 and 19:

    While the Supreme Court interceded in Windsor to protect lesbian and gay couples from the results of a democratic process that “demeans the couple,” 133 S. Ct. at 2694, the court below held that vindication of the couples’ rights would “demean the democratic process,” ROA.1965. But, as the Supreme Court confirmed in another recent decision, judicial deference to the democratic process must give way under “the well-established principle that when hurt or injury is inflicted on . . . minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts.” Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014).

    From pages 40 and 41:

    But Louisiana’s claim that Plaintiffs’ right to marry “cannot be ‘deeply rooted’ in our traditions,” ROA.876, ignores that “liberty’s full extent and meaning may remain yet to be discovered and affirmed.” Schuette, 134 S. Ct. at 1636.

  • 15. Tony MinasTirith  |  January 30, 2015 at 3:29 pm

    He's right. Preaching to the choir (EoTrs) isn't as moving as preaching to those with the power to effect change.

  • 16. RnL2008  |  January 30, 2015 at 12:34 pm

    Schuette's is about the Affirmative Action and has NOTHING to do with Fundamental rights like marriage is!!!

  • 17. VIRick  |  January 30, 2015 at 6:23 pm

    Rose, true enough, but slightly broader, it's about state policy and policy changes, and at some point, as DrBri recalls, it is cited in our favor, most probably in one of the Kansas rulings regarding the necessity of Kansas changing its policies on marriage recognition for other state purposes.

  • 18. RnL2008  |  January 30, 2015 at 6:31 pm

    I've always stated that if a State DOESN'T want to recognize a marriage solemnized from another State, then that is their right, but it has to be ALL marriages from other states, NOT just Same-Sex couple's marriages……..and we may see that happen, but then a couple would be required to marry in EVERY state and that's just silly childish antics if ya ask me!!!

  • 19. Jaesun100  |  January 30, 2015 at 12:06 pm

    "ExxonMobil adds LGBT protections to employment, harassment policies"

    —-I say, it is about time.

  • 20. Rik_SD  |  January 30, 2015 at 12:28 pm

    wow really?? that's pretty huge!

  • 21. Tony MinasTirith  |  January 30, 2015 at 3:26 pm

    Exxon didn't do it out of a change of heart. They did it to comply with the Obama administrations executive order barring US Government contractors from discriminating against the gays and not taking a chance at loosing their lucrative government contracts.

    Money talks (but it don't sing and dance…and it it don't walk)

  • 22. Mike_Baltimore  |  January 30, 2015 at 9:18 pm

    I think ExxonMobil is also trying to 'sway the jury' in the Illinois employment case.

    A couple of problems with that strategy:

    – The Illinois case is not before a jury, but an administrative court; and

    – The change in policy was made months after the allegations say the employment actions took place.

  • 23. Tony MinasTirith  |  January 30, 2015 at 9:27 pm

    That's why, if it were me, I'd choose to buy my gasoline from any of the below instead of ExxonMobil
    Chevron, ConocoPhillips, Phillips 66, Valero, or several other Oil based energy companies. Keep driving past those Exxon Pumps.

  • 24. RnL2008  |  January 30, 2015 at 12:32 pm

    The 10th Amendment is NOT what is in question with these marriage bans……..the States are still allowed to define marriage and set the marital requirements……HOWEVER, that DOESN'T mean the State gets to write DISCRIMINATION into their Constitution WITHOUT a Compelling State Interest and that's where the State has failed in this fight.

    Denying the right to marry because of a specific gender restriction is one part of the problem…..the other is that the State DOESN'T have a compelling interest or good enough reason to deny one's FUNDAMENTAL right to marry and denying the right to marry SPECIFICALLY for Gays and Lesbians is NOT going to make ANY other individual or couple stay together for the sake of the children…….this is just a big flipping Lie and they know it!!!

  • 25. Tony MinasTirith  |  January 30, 2015 at 2:29 pm

    Yes, justice Kennedy made this clear in WIndsor with his carefully chosen language. In Windsor Kennedy does invalidate DOMA section three based on states rights…but look what he goes on to say:

    "…Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa", .

    Subject to certain constitutional guarantees… THAT is the operative phrase that anti-marriage equality forces conveniently ignore.

    No one is questioning the states authority to regulate marriage as RnL points out… OR to make public policy. The states, it's people and their representatives however may not abuse their authority and go around the constitution to deprive individual citizens of their inalienable rights. This was clearly evident in Romer and Lawrence. If this were not so, "the people" could vote to re-institute slavery, or vote that it's public policy that all families comport to the preferred family set up of Dad goes out to work, Mom stays home and cooks, cleans and has babies. The 10th amendment doesn't guarantee that states or it's people and their representatives have unlimited power over the lives and rights of it's citizens. In order for the government to circumscribe rights, seize property, or take an individuals life, it must due so with a compelling government interest, and as narrowly as possible to implement that government interest. The state's public policy DOMAs do not do that. Further, when adopted into the states constitution, they have the effect as well as the INTENT to remove the same gender marriage issue from public discourse all together. The fact that a state can overturn one of it's constitutional amendments does not allay the actual intent behind the amendment. And it's clear that the purpose and INTENT behind the mini DOMAs is to forever remove the possibility of same gender marriage with no legitimate interest and while singling out one and only one specific minority. The intent of putting this restriction into their constitution is to FOREVER remove this possibility and remove it from public discussion or court challenge. The reason for FOREVER removing the possibility of marriage is plain animus dislike and disapproval of the gay minority.

    The effect of these mini DOMAs, as well as the intent, is to do the same thing the FEDERAL DOMA did, which was to disparage same gender couples, their decisions on how to conduct their private lives, and to lesson the dignity of those families and the children they raise. There is no purpose under heaven that the government could proffer that could withstand constitutional due process and equal protection to withhold the rights of only the certain group of citizens targeted. So ultimately since the state has no legitimate interest in proscribing marriage from two people of the same gender, the 14th amendment REQUIRES that all states, their officers, employees, and agents to issue marriage licenses and recognize marriages between TWO people of the same Sex on an equal basis to TWO people of opposite sexes.

    En masse the lower district and circuit courts have recognized that the mini state DOMAs being challenged have the same exact INTENT and effect as the National DOMA. The Federal DOMA fell because not even congress has the power to override the equal protection guarantees of the 5th Amendment. Accordingly the states, it's people and their representatives do not have the power to override the 14th amendment by simple majority vote, and thus all mini DOMAs must also fall. The people do have the last word though. Through a constitutional convention brought about by the peoples representatives, the people may change their national Constitution. It is however the history of this great nation that when the constitution has been amended, it has been changed to expand rights not rescind them. The only exception was the 18th prohibition amendment and that ultimately fell because proscribing individual rights in the constitution plainly did not and does not work.

    An ordered, civil and polite society can only sustain when liberty, justice and freedom is enjoyed by ALL it's citizens.

  • 26. RnL2008  |  January 30, 2015 at 2:37 pm

    I already understood that……just stating a fact that the right to regulate or define marriage is NOT being denied to the States, and to use that in one's argument is just ridiculous and they know it!!!

  • 27. Tony MinasTirith  |  January 30, 2015 at 2:43 pm

    I knew you knew that! I was simply acknowledging what you said…and expanding on your excellent and righteous observation RnL.

    The point I was trying to make is that Shcuette is not even in the same ball park as Obergfell v. Hodges, Windsor, Lawrance or Romer. Not even in the same city.

  • 28. RnL2008  |  January 30, 2015 at 3:05 pm

    Thanks Tony, but I can be over-aggressive at times…….and I do appreciate your comment……..hugs to you:-)

  • 29. Sagesse  |  January 30, 2015 at 1:54 pm

    From Garrett Epps at The Atlantic.

    Marriage Equality Without Equivocation

    Unless the Supreme Court firmly declares that gay couples deserve equal protection, it risks encouraging state-level obstruction [The Atlantic]

  • 30. montezuma58  |  January 31, 2015 at 7:43 am

    In response to some probate judges taking their ball and going home, group to offer free weddings to all at the courthouse on the week of the 9th.

  • 31. VIRick  |  January 31, 2015 at 6:48 pm

    Huntsville, AL — Supporters of same-sex marriage are organizing free weddings in Huntsville once a judge’s ruling legalizing same-sex unions takes effect. "" reports the “Wedding Week” starts on 9 February at the Madison County Courthouse Square. Couples will be able to get married for free.

    Organizers said they planned the event after local probate judges announced they would issue marriage licenses to gay couples, but that the judges themselves could not perform office weddings because of their workload and limited staffing. One of the organizers, Amanda Conger, said volunteers with perform ceremonies, sign marriage licenses, take photos, serve cupcakes, and play music. The hosts say the ceremonies are not limited to same-sex couples.

    Alabama officials have asked the 11th Circuit Court of Appeals in Atlanta to stay the ruling that would allow same-sex marriages to begin on 9 February

  • 32. OrvilleKlutz  |  January 31, 2015 at 11:47 am

    I must admit I am getting impatient for the only logical ruling which is marriage equality across the land. SCOTUS has consistently ruled in favor of marriage equality since section 3 of DOMA was overturned. It would be nice if the 11th Circuit Court of Appeals would lift the stay so that marriage licenses can be issued in Alabama ASAP.

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