Weeks after a United States District Court judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state. In a 134-page opinion, seven of the nine justices said the U.S. Constitution "does not require one definition of marriage." The Alabama Supreme Court once again has instructed probate judges not to issue marriage licenses.
Of course the big conflict here is that a U.S. District Court judge struck down Alabama's ban on gay marriage. That was appealed, but the Supreme Court refused to put a hold on that ruling while it decides on the issue of same-sex marriage itself. Alabama seems not to be able to understand that federal jurisdiction trumps state jurisdiction.
"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the court wrote. "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."
While same-sex marriage advocates chanted "love wins" outside Alabama courthouses last month, the Alabama Supreme Court said love has little to do with legal marriage in the state.
In probably the most appalling part of the Supreme Court's opinion, the justices stated that "Although love may be an important factor in a lasting marriage, civil marriage has no public interest in whether the people seeking a marriage license love one another."
This means that that yesterday's ruling from the Alabama Supreme Court throws the state into conflict with the federal judiciary. Remember, it was Alabama Chief Justice Roy Moore who issued a similar order in February. U.S. District Court Judge Callie Granade, who struck down gay marriage in the state, has already ruled that probate judges should should follow her order, not that of the chief justice. Now the Supreme Court of Alabama has decided to respond with an almost unanimous voice, over a case in which they have no jurisdiction. Unlike the United States Supreme Court which does have a few instances of original jurisdiction, the Alabama Supreme Court only has appellate jurisdiction as the state's highest court of appeal. A case must begin in a lower state court in order to be heard by the Alabama Supreme Court.
Contrary to the Alabama constitution and Judicial precedent over jurisdiction, the Alabama Supreme Court issued the order, called a writ of mandamus, that had been requested by the Alabama Policy Institute and the Alabama Citizens Action Program last month to stop the issuing of same-sex marriage licenses.
The court seemed to chide Alabama Attorney General Luther Strange for not taking a more active role in enforcing state law, sadly however for the wrong reason. "In the wake of the federal district court's orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may have been altered by the federal district court's decision," the court wrote. Strange had the legal duty to advise the probate judges to follow Judge Granade's order; however, he remained silent on the subject and let chaos ensue.
Moore actually recused himself from Tuesday's ruling, presumably, because his previous order had already been addressed by Judge Granade, but I have to wonder why Justice Tom Parker did not also recuse himself. Parker was founding Executive Director of the Alabama Family Alliance (now the Alabama Policy Institute), which was one of the two public interest groups who asked the the Alabama Supreme Court to rule in this case as a court of original jurisdiction, which it cannot do. One has to wonder how much in campaign contributions Parker and others justices received from the Alabama Policy Institute to make it worth their while to ignore Alabama legal precedents to even take up the issue.
Justice Greg Shaw was the lone dissenter in this case. He said that the Supreme Court should have put Granade's ruling on hold, but that it is clear that this court has no jurisdiction to take this case and that the public interest groups suing on behalf of the state have no standing. Further, Shaw stated in his dissent that pursuant to the Alabama Constitution, Alabama's probate judges have both judicial and ministerial duties. The Alabama Supreme Court only has jurisdiction of their judicial, not ministerial duties. Shaw pointed out that the judiciary of Alabama has no legal authority over issuing marriage licenses of any kind, therefore it is not in the jurisdiction of the Alabama Supreme Court to rule on this action of the county probate judges, just as they have no authority over the keeping of public records, driver's licenses, or automobile tags.
County probate judges are judges in mostly name only, adoption proceedings and probating of wills being their sole judicial duties. According to the Alabama Constitution, the ministerial duties of probate judges, such as record keeping, marriage licenses, and auto tags are not included in the judiciary, and thus are not subject to a state Supreme Court writ of mandamus. The order is actually moot if the probate judges choose to follow state law. However, I doubt that will happen, probate judges will cease issuing same-sex marriage licenses, and Alabama will be thrown into further judicial chaos.
Shaw concluded his dissent by writing:
"By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law. Therefore, I must respectfully dissent."
"The state is going to take such a black eye on this," said University of Alabama Law Professor Ron Krotoszynski, Jr.. "I think it's going to play very badly in the national media," he said, citing shows like Bill Maher, John Oliver and The Daily Show with Jon Stewart.
"They're rejecting Judge Granade's reasoning lock stock and barrel," Krotoszynski said.
Granade's reasoning is in line with more than 60 federal district judges who have ruled on the same issue since the U.S. Supreme Court knocked down a part of the federal Defense of Marriage Act (or DOMA) in 2013, Krotoszynski said.
The next likely step is for one of the probate judges to file an emergency stay with the U.S. Supreme Court, Krotoszynski said. The situation could be "chaotic" between now and June when the U.S. Supreme Court is to rule on the issue anyway in a 6th Circuit case, he said.
Probate Judge Davis in Mobile could be in the worst position if the Alabama Supreme Court brings him under their order, which it appears they are inclined to do, Krotoszynski said. "He is between a rock and a hard place," he said. Davis had been ordered specifically to follow Judge Granade's ruling when he initially refused to allow the Mobile County Probate Judge's office to open for business after the initial stay ended.
The Human Rights campaign blasted the Alabama Supreme Court's ruling, which it called meandering and bizarre.
"The Alabama state Supreme Court does not have the authority to interfere with a federal court order," said HRC Legal Director Sarah Warbelow. "This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling."