Though it advised members not to issue marriage licenses to same-sex couples last weekend, the Alabama Probate Court Judges Association changed its tune after United States Judge Ginny Granade clarified who her ruling overturning a ban on homosexual marriages applies to.
On Jan. 25, the probate judges association — tasked with managing the issuance of marriage licences in Alabama — took the position Granade’s initial ruling only applied to the two women at the center Searcy V. Strange. That case officially ended the state’s ban on same-sex marriage Jan. 23, though Granade’s subsequent stay would later delay its effect for two weeks.
Following the ruling, Alabama Chief Justice Roy Moore warned probate judges across the state that issuing such licenses in Alabama “would be a violation of state law” in his open letter to Gov. Robert Bentley on Jan. 27 — a letter that prompted a judicial complaint against Moore from the Southern Poverty Law Center the following day.
On Jan. 28, Grande took steps to make sure the implications of her ruling were not misunderstood or misconstrued by issuing an order clarifying who the case affects.
“Because the court has entered a stay of the judgment in this case, neither the named defendant, nor the probate courts in Alabama are currently required to follow or uphold the judgment,” the order reads. “However, if the stay is lifted, the judgment in this case makes it clear (Alabama’s) Defense of Marriage Act and Sanctity of Marriage Amendment are unconstitutional because they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”
Later that day, the probate judges association issued a statement saying they were “satisfied” Granade’s ruling would apply to all of Alabama’s 67 counties once the 14-day stay is lifted. As of now, that looks to be Feb. 9, unless the 11th Circuit Court of Appeals in Atlanta extends the stay indefinitely.
David Kennedy and Christine Hernandez, the attorneys who brought the suit on the state, said in an emailed statement they were pleased with Granade’s latest order. They also addressed Moore’s intent to “ignore” the federal ruling, which was made clear in his letter to the governor and in subsequent protests by his supporters.
“Although Alabama history records no shortage of instances when state officials and even some elected judges have defied federal court orders on issues of federal constitutional law, reasonable people can debate whether the ruling in this case was correct and who it binds; without moving in the direction of defiance,” Hernandez said. “There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. By defiance or at the direction of a politician or employer, a clerk that refuses to issue marriage licenses to same-sex couples, does so at their own risk.”
Hernandez went on to say the Constitution requires clerks to fulfill their duties and issue the marriage licenses, and warned clerks could potentially be subject to litigation from those denied licences, if they fail to perform those duties.It would seem the only recourse for Alabamians opposed to same-sex marriage, which recent polls show is still a strong 70 percent, is for the 11th Circuit to extend the stay until the U.S. Supreme Court can reach a federal decision on the matter.
Dean Young, who ran a failed campaign for the seat held by U.S. Congressman Bradley Byrne in 2013, recently led a protest against same-sex marriage in Mobile along with 17 others — many of whom were his family members.
There he voiced a prediction U.S. Supreme Court Justice Anthony Kennedy, a key swing vote in previous cases, would likely vote in favor of the states’ right to decided their own definition of marriage.
Though how Kennedy will vote is obviously unknown, national media outlets have indicated legal experts are also pointing to him as the likely deciding vote on the issue when it comes before the high court.
A recent article in Wall Street Journal said legal analysts expect justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor — often considered to be the “liberal” justices — to side with the growing notion that marriage is a Constitutional right that cannot be denied because of sexual orientation.
The more conservative judges, Antonin Scalia, Clarence Thomas and Samuel Alito are predicted to disagree, which, as Young indicated on the steps of the federal courthouse in Mobile, could put the ball in Kennedy’s court.
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