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AL supreme court orders Mobile County probate judge to stop issuing marriage licenses to same-sex couples

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The Alabama Supreme Court has, after denying Mobile County Probate Judge Don Davis’ request to extend the time for him to reply to their order, denied outright his request to remain unaffected by their recent decision enjoining all county clerks from issuing marriage licenses.

Instead, the court wrote, “Davis is added” to the existing state supreme court case, “and is subject” to the court’s order blocking county probate judges from issuing marriage licenses to anyone but opposite-sex couples.

Davis is still under a federal court order to issue the licenses so now he is truly stuck between federal and state law.

The National Center for Lesbian Rights (NCLR) and other civil rights groups have filed a motion in federal court that would force all county probate judges to issue marriage licenses to same-sex couples. No action has been taken on that motion yet, but we expect it soon.

Thanks to Equality Case Files for these filings


  • 1. Silvershrimp0  |  March 11, 2015 at 10:23 am

    Will Davis appeal this to SCOTUS, or just try to stall and run out the clock until June/July?

  • 2. dlejrmex  |  March 11, 2015 at 10:43 am

    All his actions have been stall tactics. What's strange is I think he and AL SC appear to believe that SCOTUS will go their way. I think they will actually push SCOTUS members that might have dissented to our side… (Not the brothers of a different mother but maybe some of the others.)

  • 3. Elihu_Bystander  |  March 11, 2015 at 3:08 pm

    "Not the brothers of a different mother…"

    Would that be the mother that comes out from under the front porch to bite when the brothers come home?

  • 4. RnL2008  |  March 11, 2015 at 10:30 am

    I'm NOT sure how the ASSC can TOTALLY trample a Federal District Judge's ruling as they are….this is just wrong and something needs to done to fix it!!!

  • 5. DrPatrick1  |  March 11, 2015 at 8:39 pm

    Rose, the problem is that they didn't. Ruling the way they did and reaching the merits in a case that wasn't before them seems wrong, unconstitutional, and if challenged, may find a unanimous court overruling them. However, strictly speaking, their order banning the probate judges does not contradict the federal district court judge. She ordered the issuance of 4 marriage licenses, and those have been issued. Her order does not REQUIRE anything more.

    BUT, and this is a big but, like Kim Kardashian booty big, the legal grounds for requiring those 4 licenses is not limited to some unique circumstance of the case. She rightfully found the law which forbade the licenses to be unconstitutional. Thus, the probate judges, who are sworn to follow the US Constitution are bound to follow that ruling, and rightfully started following her order more broadly than the order required. Because the federal district courts and state supreme courts are on parallel judicial tracks, their orders are not binding on each other in terms of interpretations of the US Constitution. (The state courts, contrary to what most assume, actually trump the Federal courts, but, importantly, only in interpreting state law. This is why the 9th circuit asked CaSC for their opinion on whether the proponents of prop H8 had standing in the CA system to defend the State's interest in prop h8. They do not trump federal courts when the interpretation is the federal constitution!). Thus, the probate judges are now in a very strong vice known as the Chinese Finger torture but with the federal district and the ASSC both pulling. They are not under a federal district court order to do anything, though this could change pending the class action attempt by NCLR. This seems to be our best, perhaps only, shot at getting back to equality before a SCOTUS ruling. Otherwise, I only see 3 options. Individual couples being added to the lawsuit in lieu of a class action, a probate judge who appeals the ASSC to SCOTUS, or waiting for the SCOTUS 6th circuit cases.

    So to sum up, the ASSC has f'ed it all up, intentionally, and almost certainly illegally. However, it would take a SCOTUS ruling to correct the situation. This should not stop the federal district courts from ruling in individual cases, which could include the class action attempt.

  • 6. RnL2008  |  March 11, 2015 at 8:49 pm

    Thank you for the explanation…….and yes, the ASSC really frucked up and still could face the consequences of this action.

  • 7. brandall  |  March 11, 2015 at 10:30 am

    The key to this tug-of-war is how much is Granade will hold her ground and not just pass to the June SCOTUS ruling. If she were to stay pending SCOTUS, it will be a delay in the tug-of-war and we could be trying to get these couples married or recognized into July or September. I want her to hold her ground, and let this case go up to SCOTUS now on its' own as a Federal vs. State judicial proceedings case. It is either now or a summer long battle with or without the National Guard. Let's reduce the delays as much as we can.

  • 8. 1grod  |  March 11, 2015 at 1:12 pm

    brandall Noah Feldman agrees, but sees this being stalled at the 11 Circuit Appeals Court. But the point will have been made. On another thread I've suggested that at least one for the amicus briefs provided the US Justices with a play by play. The plea was a strong ruling so that state court could not wallow in any ambiguity.

  • 9. brandall  |  March 11, 2015 at 2:05 pm

    That you for that link.

    "All this might take, say, three months — by which time the highest court in the land can solve the problem. "

    This is where I am diverging from Noah's thoughts. He believes the SCOTUS ruling will solve AL and all legal opposition will go quickly and quietly into the sunset.

    I believe the ASC is so far out there with their "sovereignty" they will continue to take their stand no matter what court tells them to stand down. We might as well have that fight now and not start it after June. I really don't want to see a George Wallace moment again anywhere, but the ASC, the governor and the legislature appear to want their names in the history books 50 years after Selma.

  • 10. RQO  |  March 12, 2015 at 6:03 am

    It's rogue sovereignty and seems exactly akin to the "tax protestors". We can once again banish any thoughts that a large minority of Southerners aren't still fighting the Civil War. A few weeks ago I actually heard the word "nullification" (cf 1820's South Carolina) bandied about. Jeeze!

  • 11. RnL2008  |  March 11, 2015 at 10:39 am

    Okay, here's a biotch of a Tea Bagger thinking she can make a bill overrule SCOTUS ruling on Marriage Equality:

  • 12. guitaristbl  |  March 11, 2015 at 10:45 am

    The lawlessness of this "court" continues. Can someone file a judicial ethics complain against 8 of the 9 judges of a state supreme court and get them all down ? Of course they would all be re elected in Alabama but something must be done anyway.

    Granade must enter an order AGAIN and make it clear that at the very least Davis has to issue licenses. She has the law on her side, unlike these lunatics.

    P.S. I feel sorry and express my sympathy to judge Shaw. Regardless of what his opinion on marriage equality is (not clearly stated yet but it is most probably a not favourable one), he seems a man of law and dignity, at least when it comes to this matter.

  • 13. Zack12  |  March 11, 2015 at 11:13 am

    Indeed, Roy Moore and Tom Parker should be both taken off the bench and disbarred for their conduct in this case.

  • 14. Raga  |  March 11, 2015 at 10:56 am

    Now that Judge Davis has been added as a party to the Alabama Supreme Court proceedings, he should appeal to SCOTUS and seek an emergency stay of the Alabama Supreme Court order pending appeal, or risk being held in contempt. Only SCOTUS can put a stop to this mayhem.

    At the same time, I'm not sure whether a state mandamus proceeding would be appealable to SCOTUS – whether they would have jurisdiction over a possible appeal.

  • 15. Silvershrimp0  |  March 11, 2015 at 11:03 am

    I'd imagine they would especially since the AL SC said in their ruling that the ban complied with the federal constitution.

  • 16. brandall  |  March 11, 2015 at 2:08 pm

    Any move Davis makes on the Federal Courts side will lead to a quick impeachment proceeding. While I'd love to see him ask for a ruling to clarify the situation, SCOTUS would come down on Granade's side and Davis would be vilified. What an awful spot to be in.

  • 17. jpmassar  |  March 11, 2015 at 11:06 am

    SCOTUS vs Alabama Supreme Court.

    Pistols at dawn?

  • 18. brandall  |  March 11, 2015 at 11:57 am

    I am sure the Sisters of Perpetual Indulgence will be happy to officiate. Just imagine that in the front of the steps to the AL State capitol.

  • 19. DeadHead  |  March 11, 2015 at 12:12 pm

    We need to get all the Sisters ordained then send them to Oklahoma (and other states who copycat this type of law) – the OK House just passed HB 1125:

    "If the Senate passes the bill, only 'an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination' would be allowed to issue 'certificates of marriage' after presiding over a ceremony,"

  • 20. JeffnRob  |  March 11, 2015 at 12:46 pm

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  • 21. Wolf of Raging Fires  |  March 11, 2015 at 7:44 pm

    I did this! Thank you!!!

  • 22. Eric  |  March 11, 2015 at 1:15 pm

    Why would we not simply challenge the establishment clause violation? One can't be compelled by government to engage in superstition.

  • 23. DrBriCA  |  March 11, 2015 at 2:37 pm

    Atheists will have a field day appealing this from the get-go, joined by Americans United for the Separation of Church & State.

  • 24. Zack12  |  March 11, 2015 at 3:41 pm

    Indeed, this law be struck down in no time flat.

  • 25. VIRick  |  March 11, 2015 at 7:20 pm

    "I am sure the Sisters of Perpetual Indulgence will be happy to officiate."

    And not just on the front steps of the Alabama state capitol. While they're at it, what about on the front steps of the Alabama Supreme Court building???

  • 26. Wolf of Raging Fires  |  March 11, 2015 at 7:49 pm

    Or this priest, right here *points at himself*

  • 27. RQO  |  March 12, 2015 at 6:07 am

    I left California 7 years ago. Is Sister "Mary Adoctah" still around?

  • 28. Mike_Baltimore  |  March 11, 2015 at 12:10 pm

    Maybe at the dueling grounds at Weehawken, New Jersey (presuming they haven't been totally 'developed') ala Burr v Hamilton in 1804?

  • 29. Zack12  |  March 11, 2015 at 11:21 am

    I hope in our response to this our side points out that one of the justices hearing this case, Tom Parker, is a direct founder of the hate group he and the other groups granted standing to.
    That is a far greater grounds for recusal then anything Moore and others have been saying about Ginsburgs and Kagan and yet they aren't saying a word on Parker.
    Hypocrisy much?

  • 30. flyerguy77  |  March 11, 2015 at 11:50 am

    I think we can't point out Parker has a conduct of interested in ALA sc We need to fight our cases by Federal laws/ court rules.. Judge Granade can order Don Davis needs to follow her rulings and upper Federal Court rulings not Ala SC.. I'm wondering if she will grant the action class suit..

  • 31. 1grod  |  March 11, 2015 at 1:34 pm

    The AG has counsel Judge Granada to have a hearing before determining what her next step is. She knew this was coming, and she seems to have wait the State Supremes out. The AG has pointed out there are some questionable legal assertions that a hearing would clarify. Does she seek wisdom from the 11 Circuit Appeals Court Chief Judge Edward Earl Carnes whose duty station is Montgomery. Does she have a hotline to Clarence Thomas's office to ask for advice? She already knows the associate justice will say Ginny "I told you so."

  • 32. Zack12  |  March 11, 2015 at 3:42 pm

    Edward Carnes is as much of a douchebag as anyone on the Alabama Supreme Court, as shown by his ruling in which he upheld Florida's gay adoption ban.
    He is going to be of no help here.

  • 33. Mike_Baltimore  |  March 11, 2015 at 12:17 pm

    It was my understanding that Davis had stopped issuing ALL marriage licenses 'until further notice'. Wouldn't forcing him to not issue licenses to only same sex couples be, in effect, an order for him to issue licenses?

  • 34. brandall  |  March 11, 2015 at 5:36 pm

    Oh the humor of watching Davis say he is under a Federal Court order to issue licenses to same-sex couples, but is now confused about what to do with opposite sex couples and therefore will seek guidance, but not issue opposite-sex couples licenses in the meantime. Not reality, but it would be soooooooo amusing.

  • 35. Roulette00  |  March 11, 2015 at 12:44 pm

    "Your Honors, I ask that the Supreme Court order the federal judge to stand down and either stay or vacate her order.

    "If your Honora do have this power, I will be free to follow your injunction.

    "If you do not have this power, then I cannot have the power to disregard the federal judge."

  • 36. Pat_V  |  March 11, 2015 at 3:49 pm

    I understand that there are 2 court systems, state and federal courts. And I know from following this blog that neither the state supreme court decisions nor the federal district courts decisions dominate the other.
    Now we have 2 conflicting decisions. If the state supreme court said "You must do *A*" and the federal district court said "You must do *B*", then it might be possible to wait and see and temporarily do none of A and B until the conflict is resolved by SCOTUS.
    But here, the federal district court is saying "You must do *A*" and the supreme court says "You are not allowed to do *A*". Therefore there are no intermediate wait-and-see option in this case: either the probate judge follows 1 decision OR he follows the other.
    How can this even happen? I don't mean "how can the AL supreme court be so crazy", I mean, in general, clearly from the way the US courts system has been designed, this is a situation which CAN occur: and surely, a process must have been set to solve these conflicting decisions, no? Aren't there any standard rules when such a situation happens? How can a person be forced to disregard one of the decisions, while the case is waiting a resolution from SCOTUS?

  • 37. brandall  |  March 11, 2015 at 5:45 pm

    There is one word that needs to be substituted in your first comment for the Federal order. That is the word "advise." Granade in her order (a final judgement) is saying 1) the law on the books is null and void, and 2) named or eventually a class of state folks are "advised" to follow the courts nullification of the marriage bans or you will be subject to further action that will be taken up by the plaintiff's (none in this case since they were all married) or the class we hope she creates.

    This leaves it up to the judge, clerk, whatever, to either follow her order or start building up a budget to pay for all the future judgements for ignoring the advisement.

    The ASC knows exactly what it is doing by creating an intentional conflict and putting the Probate Judges right in the middle where they are right if they are wrong and vice-versa depending on whether they attempt to follow the state or Federal courts.

    The same thing happened in the school segregation legal fights. This is a replay.

  • 38. Eric  |  March 11, 2015 at 6:14 pm

    It's not so much a "you must do A," as it is an "if you issue a marriage license to A, you must also issue a license to B."

    The out appears to be to stop issuing any marriage licenses in the state until SCOTUS rules. After all, it's only a few months and if waiting is no burden on the gays, then surely it isn't a burden on the straights either.

  • 39. Raga  |  March 11, 2015 at 4:17 pm

    I went back and read the federal injunction enjoining Judge Davis. Unfortunately, it only specifically enjoins him from withholding marriage licenses to the named plaintiffs, who have all now been issued licenses already. Therefore, at this point, technically, Judge Davis is NOT under conflicting orders from federal and state courts. That will change if Judge Granade allows the lawsuit to become a class action and then issues a sweeping ruling.

  • 40. davepCA  |  March 11, 2015 at 4:27 pm

    Come onnnn, let's see a class action!

  • 41. Jaesun100  |  March 11, 2015 at 5:47 pm

    How much more animus and state resistance and these discriminating religious freedom bills have to pass before the Supreme Court rules with heightened scrutiny? It's getting ridiculous.
    O and Sutton is being proven wrong everyday even with a favorable ruling we have so much trouble with a smooth implementation.

  • 42. brandall  |  March 11, 2015 at 7:57 pm

    An excellent point! Those states with rabid, new discriminatory laws are actually helping us. First, they accelerated marriage equality by passing the marriage bans which gave us a legal position to go to the courts. Now, they are now accelerating the need for heightened security by being openly and transparently blatant in creating a 2-class system of straight vs. LGBTQ.

    Stupid is as stupid does….Rose (RnL2008) has always been right-on with that phrase.

  • 43. VIRick  |  March 11, 2015 at 8:08 pm

    "…. need for heightened security …."

    Brandall, heightened scrutiny, too!!

  • 44. brandall  |  March 11, 2015 at 8:17 pm

    Oophs. Palm to forehead.

  • 45. Sagesse  |  March 11, 2015 at 6:51 pm

    On the subject of the Cato amicus brief to SCOTUS in the 6th Circuit case.

    The Equal Protection Clause Requires Giving Marriage Licenses to Same-Sex Couples [Cato at Liberty]

  • 46. VIRick  |  March 11, 2015 at 11:29 pm

    OK then. If the bigots want to disguise their bigotry under the guise of "religious liberty," we can fight fire with fire. Welcome the new DC-area group, Queer for Christ:

  • 47. F_Young  |  March 12, 2015 at 3:03 am

    Unraveling the Church Ban on Gay Sex

    This is a good article about the Natural Law rationalization for the Catholic church's opposition to gay sex (and ultimately same-sex marriage).

  • 48. Sagesse  |  March 12, 2015 at 6:19 pm

    This is the best description I've seen of the 'natural law' concept. As though putting the word 'natural' in front of the word 'law' makes it a law. It's mystifying… although a little less so with this explanation.

  • 49. DeadHead  |  March 12, 2015 at 6:56 am

    “Question: What do these people have in common? A person who’s openly gay, someone who’s urged the GOP to adopt a pro-gay agenda, a man who’s signed a Supreme Court brief supporting marriage equality in California, a woman who encouraged her pro-gay pastor to preach his convictions — and someone who’s been dubbed an “exporter of hate” for his work to enshrine anti-gay language in constitutions abroad. Answer: They all work for the former Florida governor and likely GOP presidential contender, Jeb Bush. … Late Friday, prominent evangelical attorney Jordan Sekulow announced that he had signed on as senior adviser to Bush’s Right to Rise political action committee. Sekulow, the 32-year-old executive director of the American Center for Law and Justice (ACLJ), is notorious within LGBT advocacy circles for his support of anti-gay legislation abroad, particularly in Africa, where he has worked to keep homosexuality a criminal offense.” Emma Margolin reports “Jeb Bush, the ‘gay-friendly Republican,’ is still all about that base” at

    The exporters of hate a list of who at http://hrc-assets.s3-website-us-east-1.amazonaws….

    Jeb isn't really trying very hard to be his "own man" just like his dad and brother he is pandering to the extreme right evangelicals.

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