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Mobile County stops issuing marriage licenses

LGBT Legal Cases Marriage equality Marriage Equality Trials

Mobile County’s probate judge has stopped issuing any marriage licenses while he reviews yesterday’s decision from the Alabama Supreme Court:

MOBILE, Ala. — The probate court in one of Alabama’s biggest counties says it won’t issue any marriage licenses at all after the Alabama Supreme Court disagreed with a federal court and upheld the state’s ban on same-sex marriage.

Mobile County’s probate court posted a notice on its website Wednesday saying it is halting all marriages while it reviews the decision.

The announcement doesn’t say how long that review might take. And it’s still unknown what probate judges in Alabama’s 66 other counties will do.

Mobile County’s probate judge is still under a federal court order requiring him to issue marriage licenses to same-sex couples. It’s unclear how he can stop issuing licenses while he’s bound by that order.

135 Comments

  • 1. TomPHL  |  March 4, 2015 at 9:05 am

    This action should lead to a resolution of this standoff. It seems to me that the Alabama SC's ruling has no effect on the federal district court cases and the injunctions proceeding form them. They remain in effect and the federal district court can demand compliance. That this puts the probate judges between an rock and a hard place is the fault of the Alabama SC and only they can change that. If they sanction a probate judge for complying with the injunction that could lead to the matter going to the SCOTUS. They do probably have the power to forbid the probate judges who are not covered by an injunction to issue marriage licenses. But their opinion on the issue of marriage equality has no force in any federal court only on state courts. If someone applies for a license in Mobile county I believe judge Granade will order judge Davis to comply with her injunction and take steps to force compliance if disobeyed.

  • 2. Elihu_Bystander  |  March 4, 2015 at 10:06 am

    In order to do that, according to ME attorneys, they need to have new plaintiffs who have experienced real and concrete harm. e.g. same sex couples who have been denied a marriage licence, and who are willing to become intervener plaintiffs.

  • 3. JayJonson  |  March 4, 2015 at 9:15 am

    The egregious Don Davis is on the hot seat now. Not only about the issuance of marriage licenses but also about finalizing the adoption papers of the original plaintiffs.

    I don't think Judge Grande will be intimidated by the Alabama Supreme Court. Her grandfather had to deal with similar grandstanding in the 1960s. She will act cautiously but firmly to assert the power of the federal judiciary.

  • 4. David_Midvale_UT  |  March 4, 2015 at 9:31 am

    I would make a burnt offering to the gods in support of Judge Granade and a speedy resolution to this situation, but I replaced that broken toaster, and the new one does not make burnt offerings as regularly as the old one did. Maybe crossing fingers and toes will help. . . if only to show our friends in Alabama that we care.

  • 5. 1grod  |  March 4, 2015 at 10:38 am

    David: March 5 Judge Don Davies must submit to the AL Supremes by 5:00 pm a position on whether he is bound by any existing federal order other than the four couples he was ordered to issue in a license in Strawser. Re his March 2 motion to dismiss Searcy II, made before Judge Granada, he and the Court will receive the Searcy response on March 5 [busy weekend of reading], and on March 11 he will submit to Granada's Court his reply. His decision to keep the office closed to any marriage applicant will no doubt be legally dealt with by then. [State-side door to office: CLOSED, Fed-side door: 'open'. Is he considering a petition to the US Supremes? What was said you did with the burnt offerings toaster? Could you FedEx it over to Don's office as soon as possible. He has a lot of gods who need to be pacified. Scottie – you may need to go across the Bay and clear the air. http://www.marriageequality.org/alabama_lawsuits_

  • 6. 1grod  |  March 4, 2015 at 9:26 am

    off-topic-a tad: What is being said around the country: http://www.al.com/opinion/index.ssf/2015/03/what_

  • 7. Dr. Z  |  March 4, 2015 at 9:38 am

    Probate judge questions validity of existing marriages for same-sex couples.
    http://www.al.com/news/huntsville/index.ssf/2015/

    Vile.

  • 8. Sagesse  |  March 4, 2015 at 10:23 am

    Just my (not a lawyer) opinion… The AL SC said STOP issuing licences; it said nothing about the licences already issued. I read that to say those couples are legally married. However, the marriage itself is a 'point in time' event. State recognition is an ongoing thing, and I expect the state to read the AL SC decision to say that Alabama will not recognize those marriages until SCOTUS rules.

    Has the DOJ officially indicated whether the Alabama marriages will be recognized for federal purposes?

  • 9. RnL2008  |  March 4, 2015 at 12:49 pm

    The earlier marriages are legal and this reeks of the situation like with Prop 8……hopefully it WON'T take that long to clear up this mess that Moore and his clonies have created!!!

  • 10. davepCA  |  March 4, 2015 at 1:07 pm

    Yes, this move is complete BS and pure pointless discrimination. But unlike Prop 8, this will get resolved very quickly. Worst case would be a little more than 100 days from now….

  • 11. RnL2008  |  March 4, 2015 at 1:11 pm

    I agree with you that it will be resolved in a much shorter time frame, but even with a positive ruling from SCOTUS in June, Alabama will still be a homophobic bigoted state defining the ruling……at which time how would Gays and Lesbians get restitution for their harm?

  • 12. davepCA  |  March 4, 2015 at 1:14 pm

    I don't think I understand what you mean…?

  • 13. RnL2008  |  March 4, 2015 at 1:18 pm

    I agree with your comment about this issue being resolved in a faster time frame than what happened with Prop 8, however with that being said, Moore has already stated that whatever the ruling is by SCOTUS come June, the State of Alabama DOESN'T have to follow it…..at least that's the delusion Moore is under!!!

  • 14. davepCA  |  March 4, 2015 at 1:29 pm

    Yes, I wouldn't be too surprised if Alabama balks initially and SCOTUS has to issue a special "this means YOU TOO, Alabama!' follow up to the June decision. But other than a little bit of extra foot-dragging, the bigots in the Alabama state government have no further cards to play and the game is over.

  • 15. sfbob  |  March 4, 2015 at 1:30 pm

    I believe a similar order was required for Alabama following Loving vs Virginia.

  • 16. VIRick  |  March 4, 2015 at 2:08 pm

    Bob, it took 3 years and another massive federal lawsuit, filed by the US military authorities at Ft. McClellan, with the assistance of the US Department of Justice, "United States v. Brittain," 1970. G Clyde Brittain was the Probate Judge of Calhoun County.

    Alabama is just sooooooo special, isn't it? They always seem to need their very own personalized lawsuit, designed just for them.

  • 17. sfbob  |  March 4, 2015 at 2:12 pm

    Yes I believe you posted that information earlier (or someone else mentioned it here or elsewhere). I just couldn't find the reference.

  • 18. RnL2008  |  March 4, 2015 at 1:40 pm

    I hope you're right…..and I want to believe it will all be okay….but today, my give-a-damn is broken and I'm just in awww, over the stupidity and arrogance that Alabama has demonstrated at this point in time…….may SCOTUS do something to those "ACTIVIST" Judges…….hopefully soon, light will be allowed to shine in that state!!!

  • 19. Fledge01  |  March 4, 2015 at 3:04 pm

    Alabama Supreme court already said it would accept the specific marriages ordered by the federal judge. So at least on some level gay marriage is undisputedly accepted in Alabama. Of course the existing marriages are legal. And by default, same sex marriages performed outside of Alabama are not questioned by the Alabama Supreme court's ruling. They made an situation that can not exist. And regardless, a federal judge will order things like adoptions and other actions to be recognized in Alabama, even if Alabama gets out of the marriage business altogether.

  • 20. Steve84  |  March 6, 2015 at 4:30 am

    I question the validity of electing judges who don't even need legal training

  • 21. Sagesse  |  March 4, 2015 at 10:29 am

    Judge Davis's decision in the adoption case was an indication that he was reluctantly complying with Judge Grenade's order, going only as far as he felt he had to go and not one step further.

    He's not going to do anything until someone tells him to. However, Mobile is such a large county, he's (I suspect intentionally) painted a target on his back for refusing to issue licences to anyone. That will probably get a response.

  • 22. DeadHead  |  March 4, 2015 at 10:35 am

    One another note, more of Brian Brown’s desperation – fear mongering – he is trying to link two very different issues… Brian Brown is claiming Americans could lose their gun rights if judges are allowed to make same-sex marriage legal. http://www.thenewcivilrightsmovement.com/davidbad

  • 23. Eric  |  March 4, 2015 at 10:52 am

    his argument is some what backwards, the denial of rights, enumerated or fundamental, is what his side is after.

  • 24. RnL2008  |  March 4, 2015 at 1:12 pm

    How? What does one have to do with the other? My guess is NOTHING and all he is doing is showing what a moron he really is!!!

  • 25. davepCA  |  March 4, 2015 at 1:17 pm

    He's basing his sky-is-falling rhetoric on the false argument that allowing same sex couples to legally marry requires 'redefining the federal Constitution', rather than what it really is, which is just applying the same basic principles of Constitutional Law to this legal question that have been applied to many other legal questions to show that a law is unconstitutional.

  • 26. RnL2008  |  March 4, 2015 at 1:21 pm

    Exactly…….bigots will remain bigots until one of two things happen……they die or they get a brain…….somehow the latter will NOT happen in Brian Brown's case!!!

  • 27. ReadLearn  |  March 4, 2015 at 10:48 am

    This is the same county where the federal order was given. There could be no possible way that the probate judge could not understand that he is supposed to issue marriage licenses in Mobile County. What a crock.

  • 28. flyerguy77  |  March 4, 2015 at 11:08 am

    I suspect new lawsuits will be filed soon, and SCOTUS WILL step in this mess by end of June. ( before the BIG DECISION). maybe ordering ALA SC to vacate their decision, and smack their hands.. Mommy and Daddy already said yes. "SCOTUS" JMO

  • 29. scream4ever  |  March 4, 2015 at 1:34 pm

    Exactly. They could do it simply by ruling on technicalities while saving a ruling on the merits for the June decision.

  • 30. Mike_Baltimore  |  March 4, 2015 at 11:29 am

    What we need is for a heterosexual couple intending to get married soon to intervene in the suit.

    The Alabama SC order said 'no licenses to same sex couples', but the order didn't touch other couples. Alabama state law says marriage licenses SHALL be issued by probate judges. If the probate judge in Mobile County is not issuing any licenses, how is that office following the SC order? (I can see temporary closures for floods, ice, fire, etc., but even then it is a temporary closure with a time limit, and if an extended time limit, then temporary facilities can be set up.)

  • 31. jm64tx  |  March 4, 2015 at 1:19 pm

    Nope. Alabama law says marriage license MAY be issued by probate judges.

    Alabama 30-1-9: No marriage shall be solemnized without a license. Marriage licenses may be issued by the judges of probate of the several counties.

  • 32. Mike_Baltimore  |  March 4, 2015 at 1:27 pm

    Who else, besides probate judges, issue marriage licenses in Alabama?

    Please note: I did not say probate judges MUST issue marriage licenses, but that the issuance of marriage licenses shall be by probate judges.

    So again, I ask; Who else, besides probate judges, issue marriage licenses in Alabama?

  • 33. jm64tx  |  March 4, 2015 at 3:45 pm

    The word "SHALL" implies a duty; The word "MAY" implies permission. So in using the word MAY in the statutes, the Alabama legislature said they dont have to, but they can if they want to.

    So when you said "SHALL be issued by probate judges" you were implying that a probate judge has a duty to issue a marriage license.

  • 34. VIRick  |  March 4, 2015 at 4:35 pm

    "….MAY …. they dont have to, but they can if they want to."

    No, that's not at all what distinguishes the two terms.

    One of the ministerial duties of the probate judges is to issue marriage licenses.

    The word "shall" implies that they would have a duty to issue a license to anyone who requests one, whether or not they are of age, consanguinously-related, or already married to someone else.

    The word "may" implies they have the duty beforehand to verify that both applicants are of age, are not first-cousins, and are still unmarried, prior to issuing them any license to marry. The word "may" gives the probate judge that discretion to insure that all applicants are qualified.

    Another example:

    You SHALL stop making up shit.

    Because, in time, you MAY find it difficult to swallow your own shit.

  • 35. ianbirmingham  |  March 5, 2015 at 1:28 pm

    First cousins can legally marry in Alabama and in many other states – see https://en.wikipedia.org/wiki/Cousin_marriage_law

  • 36. VIRick  |  March 5, 2015 at 3:13 pm

    Thank you. Thus, I take it that everything else I stated is correct, clear, and accurate.

  • 37. Mike_Baltimore  |  March 4, 2015 at 4:46 pm

    Yeah, yeah, yeah.

    Now please answer the question.

    To repeat that question: Who else, besides probate judges, issue marriage licenses in Alabama?

    Or are you using the old bigot habit of answering A question, but not the question asked of you?

  • 38. Wolf of Raging Fires  |  March 4, 2015 at 4:52 pm

    Not necessarily. Despite the clumsy wording, if in the context of state logistics only probate judges issue marriage licenses, then "MAY" should be read as "ONLY MAY", which is essentially equivalent to "SHALL."

  • 39. MichaelGrabow  |  March 4, 2015 at 12:03 pm

    Looks like all counties have stopped.
    http://www.hrc.org/blog/entry/hrc-unable-to-confi

  • 40. flyerguy77  |  March 4, 2015 at 12:10 pm

    It's time to file new lawsuits and go to scotus NOW

  • 41. Wolf of Raging Fires  |  March 4, 2015 at 12:05 pm

    Fuuuuuuuuck!

  • 42. justplainkay  |  March 4, 2015 at 2:02 pm

    Here's a theory worth pondering…I'm wondering if Justice Kennedy thinks the marriage case can be decided using his animus jurisprudence or if he realizes (yet) that telling millions of religious people (many of whom are zealots) that their faith based opposition to marriage equality is animus would cause more long-term resentment and disrepect of the federal government and the SCOTUS than Roe v. Wade did.

    If by chance he realizes he can't use the animus analysis in this case, that bodes well for us I think because we really want the more traditional equal protection/levels of scrutiny to be used anyway (which analysis is inherently much less personal and insulting to individuals than a finding of impermissible animus is). And Alabama is single-handedly showing Kennedy why we need a levels-of-scrutiny ruling, where sexual orientation is found to require at least heightened if not strict scrutiny. Of course, all the other discriminatory laws that are being introduced and passed in other states in the wake of the favorable ME rulings, also highlight why a levels-of-scrutiny ruling is needed in the marriage case. What good is it if we can get married if we can be fired from our job when we go to put our spouse on our benefits?!?! I hope that Kennedy is paying close attention to what is going on in the wake of all that's happened in the last 12 months and that he doesn't even consider the animus analysis.

    I'm also hoping Ginsberg files a concurring opinion that indicates she thinks S.O. should be a protected classification awarded strict scrutiny!

    Which analysis do YOU think the ruling be based on? Time to read the briefs to see what our attorneys are arguing – animus or levels of scrutiny…or both.

    K

  • 43. wes228  |  March 4, 2015 at 2:04 pm

    I honestly think Kennedy will avoid an Equal Protection analysis altogether and base his decision purely on Due Process (right to liberty) grounds…this is fitting with his themes of individual liberty, the right to chart one's own destiny, etc. etc.

  • 44. sfbob  |  March 4, 2015 at 2:15 pm

    I believe the various plaintiffs' initial briefs in Obergefell, et al are arguing both aspects.

  • 45. ebohlman  |  March 4, 2015 at 3:17 pm

    Heightened scrutiny provides no protection against discrimination by private parties; that kind of protection is statutory, not constitutional, and the statutory classifications are unrelated to level of scrutiny.

    For example, disability is only subject to rational basis review (albeit the "with bite" Moreno/Cleburne/Romer style), yet I could easily name 5 different Federal statutes that prohibit disability discrimination. Illegitimacy is subject to heightened scrutiny, but I'm not aware of any statutes that prohibit private parties from discriminating against bastards.

  • 46. VIRick  |  March 4, 2015 at 5:10 pm

    "I'm not aware of any statutes that prohibit private parties from discriminating against bastards."

    Ebohlman, does that include trolls at EoT???

  • 47. ianbirmingham  |  March 4, 2015 at 2:31 pm

    On the question of whether existing Alabama same-sex marriages are valid, note that the Alabama Supreme Court ruling refers to them as "purported" marriages. In other words, they are saying these are only actions that claim to be marriages, as opposed to valid and legally recognized marriages. This kind of reference is normally used when judges are about to rule that what happened wasn't really a marriage, but rather an action that was "void ab initio" – never valid in the first place. It would be as if a toddler signed a legal contract to purchase a Porsche for $50,000 – the contract would be considered legally nonexistent from the beginning, because the toddler is a minor and unable to enter into legal contracts. Now technically the prior marriages are still valid, because even though the judges pointed clearly in the direction of "We're going to slam-dunk these marriages into the trash can", they did so in the context of dicta (which means that the judges were not talking about the exact logic of their ruling in this particular case – they were simply blathering on about tangential topics). Dicta isn't legally binding – but, as in this case, it can give a loud and clear signal about how this set of judges plans to rule if they are presented with the very same situation that they tangentially discussed. The existing same-sex marriages in Alabama will almost certainly be ruled "void ab initio" (invalidated) as soon as the Alabama Supreme Court gets a chance to do so.

  • 48. 1grod  |  March 4, 2015 at 4:48 pm

    Ian: Evans v Hebert: and others suggest otherwise: As I recall the state had to puck up close to $100,000 in legal fees. https://www.aclu.org/lgbt-rights/federal-appeals-

  • 49. VIRick  |  March 4, 2015 at 5:07 pm

    "…. the state had to puck up …."

    Oh indeed, did the state of Utah ever puck up!!

    But, of course, you're correct, as it was also quite an expensive puck up.

  • 50. ianbirmingham  |  March 5, 2015 at 1:32 pm

    And as I recall, the state supreme court was never involved in that case, thus it's an entirely different situation which is not relevant to the Alabama case.

  • 51. TomPHL  |  March 4, 2015 at 6:57 pm

    The Alabama supreme court can rule any way it wants to but the AG etc. are still bound by the federal district court injunction So how this will play out on the ground remains to be seen. It may be interesting. You seem a bit myopic in your emphasis on the federal courts below SCOTUS being unable to bind the state courts, when the more interesting fact is the state court's inability to override the rulings of the federal district court.

  • 52. Rick55845  |  March 4, 2015 at 7:10 pm

    Good point. The Alabama Supreme Court only directed the Probate Judges to follow Alabama law and not to issue marriage licenses to same-sex couples. They did not tell the governor and AG to disobey the federal court's injunction. I don't believe they can do that.

    George Wallace stood in the schoolhouse door in 1963 to enforce racial segregation and to prevent black people from exercising their constitutional rights. I suspect the current governor and the AG lack his level of conviction or his foolishness, but I think it is likely they will drag their feet and resist complying with Judge Granade's injunction as much as they possibly can.

  • 53. ianbirmingham  |  March 5, 2015 at 1:47 pm

    The federal order to issue four marriage licenses has already been implemented, so it's no longer possible to prevent that from happening. However, look at pages 20-23 or so of the Alabama ruling where they talk about all the different implications for probate judges if same-sex marriage exists – spousal immunity, etc. etc. – while emphasizing that probate judges have to follow Alabama law.

    This strongly indicates that at least some (and quite probably all) probate judges are going to henceforth treat those Alabama same-sex marriage licenses as worthless scraps of paper, and the Alabama Supreme Court will then promptly uphold that treatment.

    The June 2015 SCOTUS ruling is what will give Alabama the final smackdown it so richly deserves.

  • 54. Mike_Baltimore  |  March 5, 2015 at 9:38 am

    Alabama is one of the states that tried to defy the SCOTUS ruling that people of different ethnicities could marry. That opinion by Alabama went a long way, didn't it?

  • 55. Eric  |  March 5, 2015 at 3:35 pm

    Your toddler example is a bit off base. Unlike the toddler, the couples that married entered into legal and valid marriages at the time.

    The validity of the marriages wasn't before the court, but if it was, then those couples would have standing to appeal the decision's 14th Amendment ruling to SCOTUS.

    Please pick which way the anti-gay want to lose this and then be consistent. This is the law we are talking about, not superstition, rationality is required.

  • 56. ianbirmingham  |  March 5, 2015 at 4:58 pm

    No, it's exactly how the Alabama Supreme Court sees the situation. They are saying that Alabama law prohibits such marriages, and that there is nothing unconstitutional about the Alabama law(s) prohibiting those marriages, and the clear logical implication of what they have written is that none of these marriages are valid. They accept that the four marriage licenses ordered by the federal district court have already been issued, but they don't view them as representing anything other than "purported" marriages (i.e., fake, invalid marriages) – marriage icenses that were issued by mistake. Certainly they have no plans to give even the slightest legal respect to any same-sex marriages whatsoever. Go read the ruling… http://sblog.s3.amazonaws.com/wp-content/uploads/

  • 57. VIRick  |  March 4, 2015 at 2:33 pm

    Here's one for both Brandall and Rose:

    I just got a tweet from God, and he doth sayeth:

    @TheTweetOfGod

    "The Alabama Supreme Court has blocked same-sex marriage on the legal grounds that it is 1953"

    God, who has a very long memory when it comes to such things, also noted that this rogue ruling comes almost 50 years to the day of the Selma march.

  • 58. RnL2008  |  March 4, 2015 at 3:18 pm

    That was pretty funny……thanks for making me smile!!!

  • 59. VIRick  |  March 4, 2015 at 6:17 pm

    For those who might need a slight refresher course on Civil Rights history, the march from Montgomery to Selma took place on 9 March 1965, and is being commemorated in a series of events scheduled to occur this weekend, 5-9 March 2015, all over Alabama.

  • 60. brandall  |  March 4, 2015 at 7:19 pm

    My tweet from @TheTweetOfGod said:

    "The Alabama Supreme Court has blocked same-sex marriage on the legal grounds that it is April 12, 1861."

  • 61. VIRick  |  March 4, 2015 at 7:33 pm

    OMG Brandall!! I'm jealous! You must have a direct line! LOL

  • 62. DrBriCA  |  March 4, 2015 at 2:41 pm

    In other disappointing news… Arkansas federal district judge won't lift the stay on her decision.
    http://www.greenfieldreporter.com/view/story/dd78

    "Baker ruled Wednesday that two courts shouldn't hold jurisdiction simultaneously and that, even if she could claim jurisdiction, she wouldn't lift the stay because the 8th Circuit refused to grant one while agreeing to hear a separate, similar appeal in Missouri."

    That makes SD and AR both on hold likely until SCOTUS. The article even interviews one of the lawyers for the plaintiffs who admits that they likely won't appeal to the 8th, since the 8th's ruling on the (first) request to lift Missouri's stay was referenced in Baker's ruling today. I suppose they might get some encouragement to keep appealing IF the second Missouri request and/or the Nebraska ruling make it up to SCOTUS and SCOTUS then holds off or lifts the stays, but unless and until that happens, the 8th circuit is going not going to show much more progress before June, as many have predicted.

  • 63. scream4ever  |  March 4, 2015 at 2:53 pm

    On another note we should be hearing at anytime whether or not the Arkansas state supreme court will rule on their marriage case based on the previous justices or the new ones.

  • 64. DrBriCA  |  March 4, 2015 at 2:56 pm

    Plus the Arkansas state supreme court also has yet to respond to a request to lift the stay in the Pulsaki county ruling!

  • 65. scream4ever  |  March 4, 2015 at 4:34 pm

    I think they'll respond to both issues at the same time. It would make the most sense to rule bases on the old justices and make the other issue moot.

  • 66. TomPHL  |  March 4, 2015 at 7:10 pm

    I must admit that with the marriage equality end game only 4 months away I'm most curious about how they deal with the Arkansas constitution's declaration of rights. Will they declare that it doesn't mean what it says just to uphold the ban on marriage equality, which they know is probably going to be dead in June? Or will they stall until summer to avoid making a ruling.

  • 67. VIRick  |  March 4, 2015 at 7:44 pm

    I believe that the stall has been on since at least November 2014.

  • 68. scream4ever  |  March 4, 2015 at 9:09 pm

    Or maybe they could shock us and do something in our favor lol

  • 69. TomPHL  |  March 5, 2015 at 6:10 am

    The fact that this would be the only honorable course will probably not have any traction with them.

  • 70. Decided_Voter  |  March 4, 2015 at 9:45 pm

    If they appeal to the 8th and they deny, can't they go to The Supreme Court who hasn't granted any stays since before Oct? I think Raga has been advocating for this?

  • 71. VIRick  |  March 4, 2015 at 10:08 pm

    Appealing the stay from the 8th Circuit Court to SCOTUS should work for both the Missouri "Lawson v.Kelly" case, as well as for the Nebraska case.

  • 72. Decided_Voter  |  March 4, 2015 at 10:12 pm

    Could South Dakota and Arkansas do that too? First going to 8th and then SCOTUS if needed?

  • 73. VIRick  |  March 4, 2015 at 10:55 pm

    We once thought so, but both of those District Court judges had originally placed a stay on their cases, pending appeal/final resolution, and then quite recently, both refused to lift/vacate those stays.

  • 74. Raga  |  March 4, 2015 at 11:05 pm

    Both SD and AR Plaintiffs have the option of appealing the denial of their motions to lift stays to the Eighth Circuit and then SCOTUS.

  • 75. DrBriCA  |  March 4, 2015 at 11:26 pm

    I imagine that process would be a slow route for both states. The 8th has now delayed both rulings on the Missouri stay (which isn't even contested by the state) for at least a month each time. They likely would slow walk an appeal for SD and AR as well. Plus, even if appealed to SCOTUS thereafter, the stays have been in effect for a couple months already, so I'd imagine the plaintiffs can't request "emergency relief." They'd have to go through the normal process of briefing on the stay, letting the state reply, and then adding or waiving one more response, which would take another round of days to weeks, by which point we'd already be nearing the oral arguments or decision for Obergefell et al.

    At least Missouri may have a shot still, given that the stay was never requested in the first place (and Kansas City is giving out licenses already despite the stay), and Nebraska has an expiration date on its one week stay, so SCOTUS has more to work with there.

  • 76. VIRick  |  March 5, 2015 at 3:30 pm

    "…. Nebraska has an expiration date on its one week stay, so SCOTUS has more to work with there."

    DrBri, that's the ticking time-bomb right there, more reminiscent of the Florida situation where the stay also had an expiration date.

  • 77. DrBriCA  |  March 5, 2015 at 3:34 pm

    The ACLU just filed its brief in response to Nebraska's request for a stay. I'd been wondering when we'd see more movement on this issue, especially with only one more business day left before March 9!
    http://journalstar.com/news/local/aclu-fights-bac

  • 78. Fledge01  |  March 4, 2015 at 2:59 pm

    I disagree that the Mobile probate judge is under an order to issue marriage licenses to same sex couples. I read his order as saying that if he issues any licenses, he can't discriminate against same sex couples.

  • 79. Wolf of Raging Fires  |  March 4, 2015 at 3:40 pm

    On what grounds do you think that? He was added as a defendant in Strawser. He absolutely is under federal orders to issue licenses to same-sex couples.

  • 80. Fledge01  |  March 4, 2015 at 4:35 pm

    Read Rick55845's comment below: It doesn't say that the judges are enjoined from refusing to issue marriage licenses to plaintiffs. Rather it says they are enjoined from refusing to issue marriage licenses to plaintiffs "due to the Alabama laws which prohibit same-sex marriage." There are many reasons other than the Alabama law in which he can refuse to issue any couple, including same sex couples, a marriage license. Such a reason may be that he isn't issuing licenses at all to any couple regardless of the sex of each person. The ruling says if plaintiffs take the same steps that are the prerequisite for opposite sex couples, the judge may not deny a license. But if a judge is not issuing any licenses to anybody, than it is impossible or a same-sex couple to meet the prerequisite that are sufficient for opposite sex couples since even those opposite sex couples can not meet the prerequisite since there is no prerequisite sufficient to force a judge to exercise his option to be in the marriage license business.

  • 81. Wolf of Raging Fires  |  March 4, 2015 at 4:48 pm

    If his denial of all licenses substantially burdens the fundamental right to marry, then he may be forced to provide licenses to everyone.

  • 82. Fledge01  |  March 4, 2015 at 4:56 pm

    You may be correct about this, but this specific question has never be before SCOTUS. Marriage is a fundamental right, but you don't need a license from a state to be married. Just like a state doesn't have to issue fishing licenses to allow people to go fishing. No license required. The next question though is how the state grants the privileges of marriage. That is the key question that is not covered in the current rulings, though the adoption papers issue will be addressed soon in Alabama.

  • 83. Wolf of Raging Fires  |  March 4, 2015 at 5:00 pm

    "You may be correct about this, but this specific question has never be before SCOTUS. Marriage is a fundamental right, but you don't need a license from a state to be married."

    With the exception of the small and shrinking number of states that allow common law marriages, you cannot have a civil marriage without a marriage license.

  • 84. Rick55845  |  March 4, 2015 at 6:52 pm

    The condition of being married predates the issuance of licenses by any State by thousands of years, if not more. A couple can be married by simply agreeing that they are, or by adhering to local customs or rituals recognized in their society. This is true regardless of whether any State recognizes their marriage. Marriage was not created by any State.

    Licensing marriage, and also criminalizing or failing to recognize certain marriages, is an act of the State to regulate the privileges and duties of marriage that it chooses to recognize.

    I'm not sure if that is what Fledge01 meant, but that is how I view marriage. Fundamental rights apply to individuals. They cannot be granted or denied by another entity, including the State. The State can only regulate how it chooses to dole out the privileges and obligations it confers upon those it grants marriage licenses to.

  • 85. Wolf of Raging Fires  |  March 4, 2015 at 7:04 pm

    A ceremonial marriage without recognition isn't a marriage at all. It is that recognition by the community which evolved into recognition by the sovereign authority/State and unfortunately, unless the State recognizes our marriage-to-be, it will do neither me nor my husband-to-be any good besides it feeling nice, especially in a crisis or family planning situation.

    No offense, but I'm sick of all the theoretical prattle about what marriage is or isn't. We're operating within an established law structure that we're stuck with and must work with our options there.

  • 86. Rick55845  |  March 4, 2015 at 7:14 pm

    Oh, that's nonsense. You are conflating a fundamental right to marriage with a fundamental obligation to be governed. The right exists, the obligation does not. (The right to establish a government is very different from an obligation to be governed.)

  • 87. Wolf of Raging Fires  |  March 4, 2015 at 8:00 pm

    You completely missed the point of what I said

  • 88. weaverbear  |  March 4, 2015 at 7:35 pm

    Forgive me, but this is why I insist on using the term civil marriage. Unfortunately, we have wedding officiants in this country of some religious denomination, and too many people conflate getting married with following some religious doctrine or mandate, rather than focusing on the formation of a legal civil contract between the members of the couple and of that couple with the state. In many other parts of the world, you might have a religious ceremony in a church somewhere, but your marriage isn't legal until you go down to city hall to get married in front of a civil magistrate.

    When ever I see protesters holding religious or bible based signs in opposition to my right to a civil marriage, I have to wonder if we would be facing as much of a struggle, if every couple in this country had to have a civil ceremony in order to get married.

  • 89. Rick55845  |  March 4, 2015 at 7:47 pm

    OK, I'll forgive you, but I'm atheist, not a follower of any religion.

    We don't live in a binary universe, black or white, on or off. It's not a matter of having religious marriage or civil marriage, one or the other. Marriage is an individual associational right. It doesn't depend on religion or the State.

    We all already have the right to marry. We also all want the State to license and recognize civil marriage for us because of the privileges and obligations associated with it. It's a matter of convenience, mostly, and a doorway to other State-regulated privileges. But aside from that, civil marriage licensing and recognition has little to do with the personal commitment and conjoining of lives and affairs that marriage entails.

    I've been married for 22 years; just not in the eyes of the State, or with the "blessing" of any religion. Still, since the State makes them available, I covet those privileges it confers upon those it recognizes as married. But that is a bit different from actual marriage.

  • 90. Wolf of Raging Fires  |  March 4, 2015 at 8:03 pm

    Where is that JayJohnson when you need him?

  • 91. JayJonson  |  March 5, 2015 at 7:14 am

    Ha, ha! See below, Wolf. (I actually wrote the response to Rick55845 before I saw your comment above. You know me so well!)

  • 92. Wolf of Raging Fires  |  March 5, 2015 at 8:04 am

    Haha! I figured this one was right up your alley! 🙂

  • 93. Mike_Baltimore  |  March 5, 2015 at 9:04 am

    Even the Crown Prince of Monaco (a country of 30,500 who are 90% Latin Rite Catholic) had to have a civil ceremony at the city hall to get married. The next day, he and his bride then held a religious ceremony – not in the cathedral, but in the palace courtyard (the cathedral was considered too small for the anticipated crowd).

  • 94. VIRick  |  March 4, 2015 at 7:48 pm

    "We're operating within an established law structure that we're stuck with …."

    Rick, Wolf's correct. Stay within these bounds.

  • 95. Wolf of Raging Fires  |  March 4, 2015 at 8:01 pm

    He's not going to, Rick. He's just going to keep theorizing himself into a little knot and justifying his "associational marriage" and how wonderful it is and we should just be happy with our right to hangout together.

  • 96. Rick55845  |  March 4, 2015 at 8:24 pm

    Not true at all. I started out explaining what I thought Fledge01 might have meant in the post you responded to. Like I said at the time, I could be entirely mistaken.

    Everything else I said subsequently was a response to your statement that "A ceremonial marriage without recognition isn't a marriage at all." I suppose I found that offensive.

    So you are the one who started with the philosophical theorizing. I just called you on your bullshit.

  • 97. Wolf of Raging Fires  |  March 4, 2015 at 8:38 pm

    Just leave me alone

  • 98. Rick55845  |  March 4, 2015 at 8:39 pm

    You got it.

  • 99. JayJonson  |  March 5, 2015 at 7:11 am

    AS Wolf of Raging Fires says, "a ceremonial marriage without recognition isn't a marriage at all." If it were, we would have no problem at all in attaining marriage equality. The entire struggle is about real civil marriage–not scare quote marriage, not religious marriage, not a joining of two hearts, etc. It is in fact the recognition of our marriages by the civil authorities that is at issue in the struggle for equal rights.

    Rick, your metaphysical and metaphorical definition of marriage may be quite satisfying for people who have to (or are willing to) settle only for the metaphysical and metaphorical, but the issue that will be decided in the courts will not be metaphysical definitions of marriage, but the recognition of marital relationships by the state and federal governments of the United States.

  • 100. Wolf of Raging Fires  |  March 5, 2015 at 8:05 am

    Very well put, my friend.

  • 101. Sagesse  |  March 4, 2015 at 5:42 pm

    This may take a while to play out, but…

    The state of Alabama has a marriage law that permits heterosexual couples to marry, and has other family laws that regulate interactions between married people (divorce, custody, adoption) and confer marriage related benefits. The residents of Alabama want and expect that marriage and family law regime to be available to them. Sooner or later state officials are going to come under pressure to get the state's representative (probate judges) to reinstate their right to get married, independent of what is decided about same-sex couples. Long before anyone gets to court to determine whether marriage is a fundamental right in Alabama.

  • 102. Wolf of Raging Fires  |  March 4, 2015 at 5:45 pm

    I keep feeling like Alabama is going to need to be beaten into submission over every little thing in order to accomplish anything there. Ugh.

  • 103. Sagesse  |  March 4, 2015 at 5:57 pm

    No one is going to jump up and down loud enough to make the Alabama AG enforce same-sex marriages… but the people of Alabama will get plenty annoyed before too long if 'traditional marriages' aren't happening in a large county like Mobile. Likely enough to flush the AG out into the open.

  • 104. Wolf of Raging Fires  |  March 4, 2015 at 6:09 pm

    I'm not sure how you translated "beating into submission" into "jumping up and down." LMFAO.

  • 105. Sagesse  |  March 4, 2015 at 7:05 pm

    Didn't. You're mixing my metaphor.

  • 106. Wolf of Raging Fires  |  March 4, 2015 at 7:07 pm

    My bad lol

  • 107. VIRick  |  March 4, 2015 at 5:01 pm

    Fledge, one of the ministerial duties of an elected probate judge in Alabama is to issue marriage licenses to all otherwise qualified couples.

    "But if a judge is not issuing any licenses to anybody …."

    In what part of the job-description for a probate judge in Alabama did you find that "if" clause?

    Try this one instead:

    If they close up shop, pick up their marbles, and go home, they're not doing their job.

  • 108. 1grod  |  March 4, 2015 at 4:55 pm

    Wolf/Fledge/Rick: AL Supreme Court 's enlightened' opinion p 134: "As to Judge Davis' request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser." Expect soon after 5:00 pm on the 5th, the 'haloed' Supremes minus Roy and Shaw will direct Mobile probate judge to adhere to their order. Why else would they have been explicit re the 4 marriages other than to lead Don in a certain direction – one he so wants to take.

  • 109. Rick55845  |  March 4, 2015 at 4:03 pm

    The preliminary injunction order is here: http://www.scribd.com/doc/255598034/1-14-cv-00424

    The relevant part at the bottom says:

    It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA.CODE 1975
    § 30-1-19 are unconstitutional because they violate the Due Process Clause and the
    Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is
    hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the
    Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that
    are required in the normal course of business as a prerequisite to issuing a marriage
    license to opposite-sex couples, Judge Davis may not deny them a license on the ground
    that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity
    of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama
    law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis
    and all his officers, agents, servants and employees, and others in active concert
    or participation with any of them, who would seek to enforce the marriage laws of
    Alabama which prohibit or fail to recognize same-sex marriage.

    DONE and ORDERED this 12th day of February, 2015.
    /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE

    I believe the last sentence makes the order apply to Don Davis for all same-sex couples, not just the plaintiffs. I see nothing that suggests that Don Davis may refuse to issues licenses at all, or that he must comply only if he also issues licenses to opposite sex couples. So, while I might be wrong Fledge01, I do not read it the way you do.

  • 110. Fledge01  |  March 4, 2015 at 4:50 pm

    The order does not have to specifically state everything he IS permitted to do. The order doesn't say what color he has to paint his walls or what his office hours have to be. Unless that topic was specifically spelled out in the order, he can do anything that wouldn't create a direct conflict with the exact words in the order. The federal government can't require states to do anything. They can only tell states what they can't do. The only way the federal government can do to make a state do something is to withhold money from them if they choose not to do a specific thing. See my reply to Wolf above where I explain the nuanced words of the order that carefully prevents her order from requiring more than what she is permitted to require under the US constitution.

  • 111. Mike_Baltimore  |  March 5, 2015 at 9:18 am

    So, the Federalization of National Guard troops and sending in Federal troops and marshalls (as happened in several states during the 1950s and 1960s during the fight to desegregate) was 'withholding money from the state?

    IMO. sending in Federalized troops, Federal troops and marshalls is a bit more than withholding money.

  • 112. StraightDave  |  March 5, 2015 at 9:30 am

    But those troops didn't really "make" anybody do anything. They were just there to provide protection for citizens trying to go about their daily lives safely. They were there to prevent bad behavior not to mandate some action.

  • 113. VIRick  |  March 4, 2015 at 4:27 pm

    "…. that if he issues any licenses …."

    Sorry, but there is no "if" about it.

  • 114. VIRick  |  March 4, 2015 at 5:54 pm

    That didn't take long at all. The Blount County probate judge just got sued in federal court (Birmingham District Court) for withholding a marriage license.
    http://www.al.com/news/birmingham/index.ssf/2015/

  • 115. DrBriCA  |  March 4, 2015 at 6:09 pm

    That's good, although too bad it's not in Granade's southern district. It's in the north where there hasn't been much movement with the other lawsuit pending up there with a W. appointee, right?

    'Randall Marshall, legal director for the ACLU of Alabama, said a new lawsuit brought outside of Judge Granade's court would have to start from square one and would likely take months to resolve. "So it is highly unlikely that a new lawsuit would be resolved by the time the U.S. Supreme court rules at the end of June," he said.

    "So a new lawsuit is likely to be more counter-productive than productive," Marshall said.'

  • 116. ReadLearn  |  March 4, 2015 at 6:57 pm

    Good info, even if it's a bummer.

  • 117. Rick55845  |  March 4, 2015 at 6:27 pm

    This lawsuit was filed two weeks ago, before the Alabama Supreme Court directed Probate Judges not to issue marriage licenses to same-sex couples.

    I just wanted to clarify that this lawsuit is not a response to the Alabama Supreme Court's feckless ruling.

    Blount county is in the northern part of the state. So that means that this suit is being filed in a different US District Court than the one that Judge Granade is in. She is in the Southern district.

    As an ACLU spokesperson quoted in the article said, this new suit is unlikely to be resolved before the US Supreme Court gives its decision on the four cases from the 6th CA that it has already granted certiorari to. I question, however, why the ACLU spokesperson suggested that it might be counterproductive. Can anyone suggest how a new suit, even if it isn't likely to be resolved before the Supreme Court rules, would be counterproductive? Why would that be so?

  • 118. scream4ever  |  March 4, 2015 at 8:59 pm

    Our side needs to petition to join the case and then appeal the order directly to the SCOTUS. I'm sure they could overrule it on technical grounds without referring to the merits.

  • 119. VIRick  |  March 4, 2015 at 9:06 pm

    Possibly because the two guys in question are out there by themselves, totally doing their own thing, and are not part of any "test" case, or rights-group effort. Instead, they've engaged private attorneys in a stand-alone case. From my own semi-involvement in the "Brenner" case in Florida, the ACLU and the other assorted rights groups don't particularly like "wild card" cases that might run counter to their own planned strategy. They hated the fact that the "Brenner" case beat them to the punch and was filed (in enemy territory) in northern Florida.

    And you're correct, the new Alabama case was originally filed in Birmingham on 17 February 2015. It came to light today, 4 March 2015, after the Blount County Probate Judge made a public announcement concerning it.

  • 120. ianbirmingham  |  March 5, 2015 at 5:05 pm

    It's counterproductive because it uselessly expends valuable resources. "Save that money for the next legal battle, don't waste it here" is what he's trying to say. Example: "You could be married — hopefully in 50 states after the last week in June — and be fired in 29 states on Monday if you got married on Saturday. That's a problem,"

  • 121. ReadLearn  |  March 4, 2015 at 6:55 pm

    Unfortunately, Alabama is setting an "example" to other states such as Texas, Louisiana and Mississippi, who will also pull these same shenanigans if the 5th circuit court does decide to rule soon. It seems like the 5th circuit isn't going to rule at all, though. And, even after the Supreme Court rules, do lawsuits have to be filed in every state to get them to comply?

  • 122. DrBriCA  |  March 4, 2015 at 7:14 pm

    Time will tell to see what happens in these remaining few states (plus or minus a few others like the Carolinas, Kansas, or Oklahoma) with their supreme courts trying a similar move. We've already seen how their legislatures are trying to push various discrimination bills.

    Don't get too down on the timeliness for the Fifth Circuit to rule. They likely have a split vote, and the hearing was just under two months ago. Most of the split circuits took 2-3 months to rule, and even the unanimous 9th opinion took a month to issue. If they haven't ruled by the SCOTUS hearing in late April though, then I'd agree that they're just waiting until June with everyone else.

  • 123. VIRick  |  March 4, 2015 at 7:19 pm

    No, not necessarily. Judges in stayed/pending cases (South Dakota, Missouri, Arkansas, Kansas, the 11th Circuit, the 5th Circuit (assuming they don't rule sooner), can and will issue a ruling, simply citing "per SCOTUS." Reflect back on how quickly the outstanding states in the 4th Circuit, the 10th Circuit (except Kansas), and the 9th Circuit had their cases resolved in favor of marriage equality, once the initial case(s) was refused at the highest level.

    I'm still holding my breath that Nebraska, with its abbreviated stay, will tip-toe through next week.

  • 124. DrBriCA  |  March 4, 2015 at 7:35 pm

    The Alabama debacle certainly has taken wind out of Nebraska's sails in terms of headline time. I haven't seen much else yet in terms of filings for the appeals court (especially for the emergency stay). Even the denial to lift the stay for the federal ruling in Arkansas has been rather quiet on here today!

  • 125. VIRick  |  March 4, 2015 at 8:08 pm

    Despite whatever happens in Alabama, Judge Bataillon's temporary stay in Nebraska is set to expire at 8 AM on 9 March 2015. In the interval, no matter how the 8th Circuit Court rules on the Nebraska AG's request for a stay extension, that decision can be appealed to SCOTUS, slipping that case right through the 8th Circuit's grubby clutches. Judge Bataillon has been around the block a few times, and knows what he is doing.

    He's at least as good as Judge Crabbe in Wisconsin. Remember her? I loved how she pre-announced that she fully intended to strike down the ban, then let all the officials hang out to dry waiting for her official decision (since they couldn't appeal her pre-announcement, even though they tried and Posner told them to get lost), while same-sex couples all over the state rushed to get married.

  • 126. DrBriCA  |  March 4, 2015 at 11:36 pm

    It would've been amusing to see another state try the "declaratory relief" route again that Wisconsin clerks took for that week. Even Judge Crabbe was like, "What can I put on hold? I haven't even given an order yet!" Definitely an interesting window period, although Alabama will likely now "take the cake" for the most twists & turns for on/off again marriage window periods!

  • 127. brandall  |  March 4, 2015 at 7:32 pm

    Attention angry EoT'ers….we should always try to take the high road despite the Alabama Supreme Court. This is really classy and in fact classic. Go ahead, give Alabama the George Takai finger:

    http://www.usatoday.com/story/tech/2015/03/04/twi

  • 128. davepCA  |  March 4, 2015 at 8:28 pm

    I like that.

  • 129. Randolph_Finder  |  March 5, 2015 at 6:39 am

    Still wish he had won his race for LA City Council…

  • 130. David_Midvale_UT  |  March 5, 2015 at 10:09 am

    It's difficult to take the high road (a) when hypocrites have been hurting families for decades because “When our leaders speak, the thinking has been done,” and (b) medical cannabis is not available in HATU (although there is a proposal for same recently introduced in Utah's Churchislature, but has NO chance of passage because the proposal has not been sanctified by the Fifteen Self-Appointed Old White Men who run this state). On the other hand, Grand Junction, Colorado, is about a 9 hour drive, round trip.

  • 131. Zack12  |  March 4, 2015 at 7:44 pm

    I expect to see a ruling from the 5th circuit by mid March to early April.
    There has not been a single split ruling that has been issued in two months or less.
    I know we want a ruling ASAP but that isn't going to happen.

  • 132. flyerguy77  |  March 4, 2015 at 11:36 pm

    I believe we will see a few lawsuits by next week or so, and federal courts will force ALA probate judges to allow same-sex couples to get married.. jmo and SCOTUS won't like what ALA SC have done.. http://www.al.com/news/index.ssf/2015/03/alabama_

  • 133. Wolf of Raging Fires  |  March 5, 2015 at 12:33 am

    I sure hope you're right :j

  • 134. Sagesse  |  March 5, 2015 at 5:54 am

    Always nice to see Judge Vaughn Walker out and about.

    Retired Judge Vaughn Walker talks Prop. 8 case, Brad Pitt and Alabama [San Francisco Business Times]
    http://www.bizjournals.com/sanfrancisco/blog/2015

  • 135. JayJonson  |  March 6, 2015 at 5:32 am

    What we need are a couple of courageous county probate judges who are willing to disobey the state Supreme Court ruling. Actually, I do not think such disobedience requires much courage.

    Who would prosecute them for such disobedience? The Governor and the Attorney General are under an injunction not to prevent same-sex couples from receiving marriage licenses.

    We need some individuals who are willing to open the school house door and confront Moore et al.

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