WASHINGTON — The 11th Circuit Court of Appeals denied Alabama's requests to keep two rulings striking down the state's ban on same-sex couples' marriages from going into effect.
Without further action, the trial court rulings by U.S. District Court Judge Callie Granade are due to go into effect on Feb. 9 — meaning same-sex couples could marry in Alabama at that time.
Although the state can still ask the Supreme Court for a stay, the high court has not granted a stay in similar circumstances in recent months.
This would, however, be the first such request brought to the Supreme Court since the justices agreed to hear the appeal of several cases involving marriage or marriage recognition rights brought by same-sex couples in Kentucky, Michigan, Ohio, and Tennessee. In those cases, the state bans were upheld by the 6th Circuit Court of Appeals, leading the same-sex couples to seek review from the Supreme Court.
Alabama officials argued unsuccessfully to the district court and the 11th Circuit that the ruling in the cases involving their state's ban — one brought by a same-sex couple seeking to marry in Alabama and the other by a same-sex couple who married elsewhere and are seeking recognition of that marriage in Alabama — should be put on hold until the Supreme Court's resolution of those other cases.
They had hoped the appeals court would see that distinction as forming the basis of a reason for granting a stay during Alabama's appeal of the cases — in contrast to an earlier ruling from the appeals court when it denied a request to stay a ruling striking down Florida's marriage ban.
The appeals court, however, denied Alabama's request in a brief, one-page order that gave no reasoning for its decision.
Meanwhile, shortly after the 11th Circuit denied Alabama's request, the plaintiffs in the marriage recognition case — which includes a judgment that strikes down the ban as unconstitutional for both marriage and marriage recognition purposes — asked the district court to lift the stay before Feb. 9.
"Plaintiffs respectfully submit that there is no reason for this Court's stay to remain in place until February 9, 2015, as the Court made clear that this Court's stay was to allow the Defendants time to seek relief from the Eleventh Circuit on that issue," lawyers for Cari Searcy, Kimberly McKeand, and their son wrote in the motion filed Tuesday. "The Defendants have done so, and the Eleventh Circuit has denied their motion."
The brief ruling of the 11th Circuit Court of Appeals:
Alabama Attorney General Luther Strange opposes lifting the stay immediately, telling the trial court judge that he plans to ask the Supreme Court for a stay on Tuesday or Wednesday.
U.S. District Court Judge Callie Granade denied the request to lift the stay prior to Feb. 9.
Alabama Attorney General Luther Strange filed a request with Justice Clarence Thomas on Tuesday afternoon, asking for a stay of the trial court ruling pending appeal. Thomas could resolve the matter on his own, or refer the matter to the full court.
As noted earlier, the court has cases pending out of four states, challenging the marriage bans in Kentucky, Michigan, Ohio, and Tennessee.
Although the justices have denied stay applications in marriage cases since October 2014, this application is the first to reach the justices since they agreed to review the constitutionality of such bans. Although the distinction did not to change the appeals court's decision, all interested parties will be watching closely to see what the justices do with Alabama's request.
Granting the stay would signal that the court has entered a holding pattern until the decisions in the four marriage cases are handed down, likely in June. In other times and other cases, this likely would have been the expected result.
Denying the stay, on the other hand, is a real possibility here. It goes with the court's practice since denying a series of petitions from states whose marriage bans had been struck down, and it would be the strongest sign yet that the Supreme Court — at least a majority of the justices — are preparing to issue a national marriage equality ruling come this June.
Alabama Supreme Court Chief Justice Roy Moore — who previously criticized the ruling in a letter to Alabama's governor — on Tuesday sent a letter and memorandum to the probate judges across the state, asserting that U.S. District Court Judge Callie Granade is "acting without constitutional authority" and that the injunctions in the two federal marriage cases only cover state's attorney general.
The letter and memo were posted initially by Jordan Bloom.