U.S. District Court Judge Callie Granade has issued a 14-day stay of Friday's order striking down Alabama's ban on same-sex couples' marriages to give the state time to seek a stay from the 11th Circuit Court of Appeals.
WASHINGTON — A fight over how to enforce Friday night's ruling striking down Alabama's ban on marriage for same-sex couples was brewing on Sunday — hours before government offices open and face questions about how to handle the ruling.
On Sunday, the Alabama Probate Judges Association advised that local judges should not grant marriage licenses to same-sex couples. Probate judges are specialty judges with specific authorities that vary from state to state, but can include wills and marriage licenses.
"What we would tell them is that legally, we can't issue them a marriage license. Alabama law does not allow that, and you are duty-bound by that," said Monroe County Probate Judge Greg Norris, the president of the association, on a conference call with reporters.
Although U.S. District Court Judge Callie Granade declared the state's amendment and statutes barring same-sex couples from marrying to be unconstitutional, the association maintains that the ruling does not apply to the local judges.
At the same time, lawyers for the plaintiffs in the federal case hit back at the association in a filing in the case Sunday. The lawyers point to the association's advice as reason for Granade, the judge in the case, to clarify her order.
Invoking the state's history of fighting back against federal court orders, the lawyers for the plaintiffs wrote, "Clarification is necessary as the Probate Judges association in Alabama have assumed the position like George Wallace at the schoolhouse door staring defiantly upon this Court's order ...."
Specifically, they wrote, "As it was necessary to educate the Probate courts across Alabama in 1970 it is again necessary that the Attorney General in this case be so ordered to educate the Probate courts across Alabama in 2015 that a judgment declaring a law in Alabama is in violation of the Fourteenth Amendment of the United States Constitution is not subject to interpretation as to enforcement county by county."
Even among the probate judges across Alabama, there is dissent from the association. Montgomery County Probate Judge Steven Reed tweeted on Sunday that he would be issuing marriage licenses to same-sex couples on Monday unless Granade issued a stay of her order.
"It's going to be up to each judge," Norris acknowledged. "Each probate judge county is their own jurisdiction, but the stance of the Probate Judges Association is that, based on our legal advice, that it would not be proper."
Through a vote of its executive board, the association is recommending against the issuance of licenses to same-sex couples based on the procedural posture of the case involved in Friday's ruling.
"Judge Granade's ruling in this case applies only to the parties who were in the case. It has no effect" on anyone not a party to the case, the group's lawyer, Al Agricola, said. Additionally, because the case was not brought as a class action lawsuit, he explained, the ruling does not apply to others "similarly situated" throughout the state — meaning only the same-sex couple who sought recognition of their California marriage can benefit from the ruling.
The only defendant in the case at the time of the ruling was Attorney General Luther Strange, Agricola also said, so Strange is the only government official ordered to enforce the ruling. Since the probate judges were not named, he said they are not bound by the ruling.
Additionally, "[t]he attorney general in Alabama has no role to play in the issuance of marriage licenses, so there is no party to Judge Granade's case who has any role to play with regard to the issuance of marriage licenses in Alabama," Agricola noted. Agricola, who did most of the talking throughout the call, is a politically connected lawyer in the state, having served as the general counsel to both of Alabama Gov. Robert Bentley's campaigns for the governor's office.
Among the other reasons discussed by Agricola for not issuing same-sex couples marriage licenses on Monday were several that appeared to focus on reasons for the federal court order not to go into effect immediately, including that the state should wait on the Supreme Court because it has taken up the issue and should have it resolved for the country by the end of June. He also described the process of changing "laws that go back to 1852 … between Friday evening and Monday morning" as "complex."
When discussing what would happen if same-sex couples are denied marriage licenses and ask to be added to the existing case in federal court and the probate judges are then ordered to issue licenses to such couples — a scenario laid out previously by the judge in the Florida federal court marriage case as a possibility — Agricola said, "Certainly, that is a possibility, but that has not yet happened and we don't know whether that will happen or not, and so that's where we are."
Meanwhile, the plaintiffs in the federal case before Granade opposed Strange's request that the ruling be stayed, or put on hold, until the Supreme Court rules on the four marriage-related cases before the justices.
"[E]very day that couples have to wait to marry or have their marriages recognized could make a critical difference to them and their families," lawyers for the plaintiffs wrote in a Sunday court filing, and Supreme Court actions denying stays in other marriage cases — including, most recently, in Florida — "ha[ve] made clear that it does not deem the risk of reversal [on appeal] to be a basis to stay an injunction in marriage cases."
The Probate Judges Association is expected to file an amicus curiae, or friend of the court, brief in support of Strange's request for a stay, officials noted in Sunday's call.