Constitutional Law

Federal court orders Ala. judge to issue same-sex marriage licenses; new suit seeks opposite result

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The battle over gay marriage in Alabama continued on Thursday as a federal judge ordered a state probate judge to issue marriage licenses, and a religious nonprofit filed a mandamus petition seeking the opposite result.

The judge who overturned Alabama’s gay marriage ban, U.S. District Judge Callie Granade, agreed to add Probate Judge Don Davis of Mobile County as a defendant to the litigation and issued an injunction on Thursday enjoining him from refusing to grant marriage licenses to same-sex couples. The New York Times, the National Law Journal (sub. req.) and the Washington Post have coverage.

Granade said her order (PDF) binds 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.”

Granade had initially stayed her January ruling overturning the gay-marriage ban, but when the stay expired on Monday the U.S. Supreme Court refused to extend it.

The day before the U.S. Supreme Court declined to act, Alabama Chief Justice Roy Moore issued an order directing probate judges not to issue marriage licenses to same-sex couples. Davis filed a petition with the Alabama Supreme Court seeking guidance on the scope and effectiveness of Moore’s order, but the state supreme court tossed the suit on Wednesday, saying it could not issue an advisory opinion.

In an interview with the ABA Journal on Thursday, American University law professor Amanda Frost said the conventional wisdom is that state court judges aren’t bound by lower federal court precedent, as Moore has argued. She saw an important distinction, however, in the case of Alabama probate judges.

When issuing marriage licenses, Frost opined, probate judges are exercising executive rather than judicial authority, and executive branch officials do have to follow lower court decisions. Since Davis was made a party to the litigation, he would be bound by Granade’s decision, she said.

However, Frost told the National Law Journal, it was her view that Granade’s order would not be sufficient to hold in contempt other probate judges who were not parties to the litigation and continued to refrain from issuing marriage licenses to gay couples.

Another law professor, Ronald Krotoszynski of the University of Alabama School of Law, told the New York Times there was a “technical argument” that state judges aren’t bound by lower federal court rulings, but the circumstances were different in this case, given the U.S. Supreme Court’s refusal to extend the stay of Granade’s ruling. “It takes a kind of willful blindness to seriously make this argument,” he told the Times.

The issue of whether probate judges are acting as executive branch or judicial officials was addressed in a petition (PDF) filed Thursday in the Alabama Supreme Court by the religious nonprofit Liberty Counsel. The petition asks the state high court to order probate judges who were issuing marriage licenses to same-sex couples to cease doing so.

The mandamus petition noted Alabama Attorney General Luther Strange was a party to the case when Granade struck down gay marriage in the state, but state probate judges were not defendants. The attorney general is an executive branch official, while probate judges are members of the judicial branch and are not agents of the attorney general who were bound by Granade’s initial decision, the petition says.

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