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Equality news round-up: Another marriage case ends, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

– BREAKING UPDATE: The Eleventh Circuit has ruled in the class-action challenge to Alabama’s marriage ban. The court dismissed several appeals filed by Baldwin County probate judge Tim Russell as moot, and they ruled in favor of the couples on the injunction. In a follow-up order, the court denied Russell’s request to appeal the class certification.

– A man formerly employed by the federal government is suing, alleging anti-gay discrimination.

– Lambda Legal recently argued a sexual orientation discrimination case in the Seventh Circuit.

– The Eleventh Circuit has dismissed the appeals in the Florida marriage cases, and the district court will decide attorneys’ fees.

– In a case alleging that Utah refused to recognize same-sex parents of a child, the parties have agreed to a permanent injunction.

Thanks to Equality Case Files for these filings


  • 1. 1grod  |  October 20, 2015 at 9:32 pm

    The Strawser v Strange case, which at the District Court level affirmed a class of plaintiffs – couples seeking marriage licenses, and a class of defendants – the AL probate judges was AFFIRMED by the appeal panel of Tjoflat, Hull and Wilson of the 11th Circuit. This decision enables Judge C Granade to now issue a final judgment and permanent injunction. The State is very unlikely to appeal to the US Supreme Court given the declaration the Attorney General has made to Judge David Proctor in the Aaron-Bushes v Strange case that Obergefell "conclusively resolved the legal issues" and the State is in full compliance with "the law of the land". But what is most telling about this panel's decision is their statement that the AL Supreme Court's temporary injunction dated March 3 2015 against probate judges issuing marriage licenses has been abrogated by the June 26 decision of the US Supreme Court – Obergefell. WooHoo! Judges as Nick Williams of Washington Co have lost their excuse/pretext for not issuing licenses

    As said in another thread, dissenting AL Supreme Court Justice Greg Shaw got it right in the first place. It will soon be time for a Class Action suit to be filed against the nine delinquent probate judges as class defendants. This is a judgment that the AL Association of Probate Judges should immediately get and distribute an electronic copy while giving it serious attention. I've read elsewhere that the apparent permissive 'MAY ISSUE' in the legislation has very weak legs to stand on. G

  • 2. 1grod  |  October 21, 2015 at 8:15 am

    This AM I checked with Equality Alabama to see how they are covering this development. Nothing?!. Scottie you are a resident of the state, indeed part of the decision related to your own [Baldwin Co] probate judge Tim Russell. You must have connections with those who manage their Facebook.
    On another avenue of communication, I did a word search of to see if this decision was given coverage. Not yet!! Again Scottie, or the two or three others from there who contribute to this blog. Please help to make this known. But perhaps you are waiting on Judge C Granade's final judgment and permanent injunction. My guess is by the first of next week she will act. We are in the final act of this long drawn-out drama. Any guess who will try to get ahead of the curve? Autauga Co's Alfred Booth, Bibb's Stephanie Kemmer, Chamber's Brandy Clark Easlick, Choctaw's Michael Armistead, Clarke's Valarie Bredford Davis, Covington's Ben Bowden, Geneva's Fred Hamic, Pike's Wes Allen or Washington Co's Nick Williams – i.e. avoid being cited as bigots? ,

  • 3. 1grod  |  October 21, 2015 at 9:22 am

    Just how many of the following must say 'Uncle' before the rest fall in line – my guess is three. Autauga Co's Alfred Booth, Bibb's Stephanie Kemmer, Chamber's Brandy Clark Easlick, Choctaw's Michael Armistead, Clarke's Valarie Bredford Davis, Covington's Ben Bowden, Geneva's Fred Hamic, Pike's Wes Allen or Washington Co's Nick Williams

  • 4. Bruno71  |  October 21, 2015 at 11:22 am

    While I hope your observations are correct, I'm skeptical that this will have any effect on any of the non-issuing probate judges in Alabama. Even Shannon Minter of the NCLR, who represented the plaintiffs in the case, said that those judges were not in breach of Granade's ruling because of the way Alabama law is worded. Also, while the AL SC and observers may well note the 11th CA's interpretation that Obergefell abrogates the AL SC's mandamus, this observation/ruling is not binding on the AL SC or the AL state judiciary. If the activist justices on the AL SC as well as the truculent probate judges decide to do so, they can continue to cause problems until SCOTUS directly tells them to stop. We'll see how it plays out though, it's possible that by now these probate judges have to grapple with the realization that they are mostly hurting heterosexual couples in their rural/ex-urban/suburban counties.

  • 5. 1grod  |  October 21, 2015 at 12:19 pm

    Bruno -thank you for reminding us about the independence of the state judiciary system. As to your point about straight couples seeking marriage licenses, in 2012 there were 2244 marriages in these non-conforming counties, the largest number per county [391] was in Washington Co. It surprises me that more pressure has not been brought to bear by the county to not treat its taxpayers so shabbily.

  • 6. Bruno71  |  October 21, 2015 at 12:36 pm

    I've looked at some of the Facebook pages of a few of these probate judges, and they get more than a few encouragements from people to stand firm on their principles. It's quite probable that the constituents in these counties in this part of the country are supportive, and willing to overlook the fact that future married couples will have to travel a bit to get a license. But for how long?

  • 7. Christian0811  |  October 21, 2015 at 12:17 am

    Also in under-reported news, the constitutional court of Portugal rejected the possibility of a referendum on the right to petition for adoption by a same-sex couple. The court held that, first, a referendum could put homosexuals rights to whims of the majority and thus be discriminated against and, secondly, that submitting a question addressing both step-child and joint adoption could confuse voters as the issues are significantly different from each other.

    The case is cited as 176/2014.

  • 8. davepCA  |  October 21, 2015 at 1:47 pm

    Wow, testing the constitutionality of a referendum process on a particular issue of rights BEFORE putting the issue on the ballot and enacting unconstitutional laws that then have to get dragged through the courts, wasting millions and millions of taxpayer dollars to remedy.

    What a good idea.

    If Portugal can do this, why the hell can't we figure out how to do it here in the states?

  • 9. sfbob  |  October 21, 2015 at 1:59 pm

    It's a quirk of our legal system. Theory is, I believe, that until a referendum gets passed, it doesn't actually have the ability to cause harm to anyone. Therefore nobody has standing to sue to prevent it from being placed on the ballot. If I'm not mistaken, a few states do permit their courts to issue advisory opinions. The federal courts can't and don't and most states model the rules for their judiciary on the federal system.

  • 10. VIRick  |  October 21, 2015 at 2:10 pm

    Dave, many countries which still follow the basic Napoleonic Code test the constitutionality of proposed laws before implementing them. Luxembourg did precisely that in 2014, before implementing its same-sex marriage legislation, as did Chile earlier this year, before it implemented its same-sex civil unions legislation.

    However, unlike Portugal, most other countries following the basic Napoleonic Code do not allow for referenda,– an alternate method of preventing unconstitutional initiatives from ever becoming law in the first instance, and a process still currently being worked upon in Slovenia.

  • 11. Christian0811  |  October 21, 2015 at 2:24 pm

    If I recall correctly, the system was pioneered by Charles DeGaulle's 5th Republican constitution. The Constitutional Council, from 1958-1974, could only rule on the constitutionality of laws 'a priori' on a referral from the Prime Minister or President. In 1974 this right was extended to MPs, who now have to collect a certain number of signatures in each chamber to send a bill before the council.

    The Constitutional Law of 23 July 2008 extended the ability of constitutional review to persons in on-going lawsuits to appeal a law being applied in the case they feel is unconstitutional. This is called 'posteriori' review. The law must be certified at the court of first instance as being serious and non-frivolous and then the law must be sent to the competent Supreme Court (either the Council of State or Court of Cassation).

    If the Supreme Court approved the question, which it does purely on a technical basis, the Council will review the question and publish its opinion within three months if not sooner.

  • 12. tx64jm  |  October 21, 2015 at 2:31 pm

    Luxembourg does not follow the napoleonic code. Its original civil law was loosely based on the French napoleonic code, but it has been so highly modified it no longer resembles the napoleonic code.

    Luxembourg is a constitutional monarchy, and the current Grand Duke is Henri. In Luxembourg, laws take effect on the sixth month after passage. The same sex marriage law was passed in July 2014 and promulgated by Henri that month, so it took effect on January 1, 2015.

    There was no constitutional test of the law before it took effect.

  • 13. VIRick  |  October 21, 2015 at 3:44 pm

    As quoted from my archives, cashed on another site:

    "The legislative process in Luxembourg is unique. Earlier today,18 June 2014, they held the first, and most important vote on the proposed legislation legalizing same-sex marriage and same-sex adoptions, passing it by a lop-sided margin of 56 – 4. Now, the Council of State (which is in fact an advisory body made up of judges) will then decide whether a second vote is even necessary. This procedure is mostly just a formality, but in the interim, they do check on whether the language in the bill is in accordance with constitutional and international law.

    In other words, the judges in Luxembourg determine the constitutionality of a bill before it is finalized as law. They're allotted 6 months to complete this process. The new law will go into effect on 1 January 2015."

    I will leave it to others to determine whether or not this procedure follows the intent of the Napoleonic Code.

  • 14. tx64jm  |  October 21, 2015 at 6:46 pm

    "Its opinion must entail a thorough examination to ensure compliance of the draft texts with the Constitution, international conventions and the rule of law. Its role is to persuade, not to impose. Thus its role is purely consultative."

    So, the council of state cannot stop legislation from becoming law, they can only require a 2nd vote of the chamber of deputies.

  • 15. Mike_Baltimore  |  October 21, 2015 at 5:17 pm

    Most people think the British Monarch cannot veto any bill passed by Parliament.

    That actually isn't true. The British Monarch can veto ANY bill he or she so chooses. For the Monarch, that is the LAST bill they veto, as the British Parliament will overturn the veto, then cut the Monarchy completely out of the legislative process.

    In effect, the British Monarchy can veto all bills if they so wish, but in actuality, they won't veto ANY bills, unless they have a death wish on the Monarchy.

  • 16. Mike_Baltimore  |  October 21, 2015 at 5:38 pm

    BTW – according to the Encyclopedia Britannica (revision date of May 29, 2015), the only nations with the base Napoleonic Code to date, with certain revisions and modifications, are Belgium, LUXEMBOURG, and Monaco.

    Parts of it are still in existence in some nations. Just about any nation that has a 'cage' for defendants (Egypt, Italy, for examples) formerly was ruled by the Napoleonic Code, but are no longer ruled by it.

  • 17. VIRick  |  October 21, 2015 at 7:26 pm

    "…. the only nations with the base Napoleonic Code to date, with certain revisions and modifications, are Belgium, LUXEMBOURG, and Monaco."

    Thank you, Mike!

    Luxembourg is also probably the only country in the world where being totally bourgeois, as in luxembourgeois (their nationality, as expressed in French), is deemed to be a perfectly-acceptable compliment.

  • 18. tx64jm  |  October 22, 2015 at 4:19 am

    "the only nations with the base Napoleonic Code to date, with certain revisions and modifications, are Belgium, LUXEMBOURG, and Monaco."

    Appears that EB is incorrect.

    "The New Code of Civil Procedure was amended by a law in 1998. Until then, Luxembourg was still using the original Code of Civil Procedure decreed in 1806 by Napoleon."

  • 19. Sagesse  |  October 22, 2015 at 5:41 am

    Trivia. In Canada, the laws of the province of Quebec are based on the Napoleonic code. The other provinces and the federal government follow British common law.

  • 20. 1grod  |  October 21, 2015 at 8:18 pm

    While the definition of marriage/divorce fall with the Canadian federal sphere of responsibility, most of the other attributes of marriage fall with domestic relation law i.e abiility for spouses to share a common name. Except for Quebec, the roots of these laws is the English Common Law. The roots of Quebec's civil code is the 1804 Napoleonic Code. Canadian Supreme Court hears cases under the common and civil code as well as the criminal code which is operative in all provinces. How ssm came to Quebec:

  • 21. VIRick  |  October 21, 2015 at 11:14 pm

    " The roots of Quebec's civil code is the 1804 Napoleonic Code."

    Indeed! Plus, I would argue that just about every country worldwide which has codified law has inherited the basic gist of it from that same 1804 Napoleonic Code.

    Even in the USA, Louisiana (inherited from France), Puerto Rico (inherited from Spain), and the USVI (inherited from Denmark) all have codified law based on the Napoleonic Code.

    But in addition to the three (Belgium, Luxembourg, and Monaco) cited by Mike, I would also claim France, Spain, Portugal, Italy, Denmark, and almost all of Latin America, from Tijuana to Tierra del Fuego (among others), have codified law based on this same 1804 Napoleonic Code.

    It would not surprise me to learn that countries as diverse as Norway, Sweden, Netherlands, and Switzerland do, too.

  • 22. JayJonson  |  October 22, 2015 at 6:42 am

    1grod, thank you for calling attention to the Quebec marriage case, which has received less attention (or at least less of my attention) than the Ontario marriage case. I was especially taken by the argument of one of the attorneys for the plaintiffs, Noël Saint-Pierre: "He referred to a court ruling that defined 'dignity' in the Charter of Rights and Freedoms as 'having equality, having autonomy in one's personal life and thus in one's choices.' Same-sex couples are not able to choose marriage, and thus are deprived of dignity. He carefully analyzed the many benefits of marriage automatically given to heterosexual couples, and showed how it was not possible for same-sex couples to duplicate them via individual legal contracts. Alimony, child visitation, child support, and immigration are four such areas. For poor couples who cannot afford legal assistance, legal contracts to get some of the protections of marriage are not an option."

    This makes me wonder if Justice Kennedy's repeated emphasis on dignity in his marriage equality opinions was influenced by the Quebec case. Do you know if the unanimous opinion of the Quebec Appeals Court echoed the attorney's argument about dignity?

  • 23. 1grod  |  October 22, 2015 at 8:08 am

    Jay –… (Eng) and… (Fr)
    My quick reading of the text of the Appeal Court suggest the decision was made on the basis of res judicata – an federal law found unconstitutional by a superior court in one province that is not appealed [and a third party seeking standing to appeal being denied, adjudicated to the level of the Supreme Court], ought to have effect in all jurisdictions in Canada. [The same reasoning applied to the decision made by the Court in the Yukon.]

  • 24. davepCA  |  October 21, 2015 at 3:26 pm

    Yeah, my comment was a bit tongue in cheek. I'm aware of why we don't do this here in the states, I just wish we did it the way it's done in some of these other countries, or that we had at least SOME kind of reasonable check process to reduce the amount of blatantly unconstitutional laws that get enacted and then have to be overturned.

  • 25. RnL2008  |  October 21, 2015 at 2:55 pm

    Thank you all for your continuing comments……it's helpful to folks like me who aren't following every case across the Country………I appreciate all of your comments…..even by tx64jm….though I do think that poster enjoys causing dissent!!!

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