After a nearly eight-hour standstill, Mobile County Probate Judge Don Davis issued “disappointing” news to several same-sex couples and supporters at the probate court house Feb. 9.
Monday was suppose to mark the end of a 14-day stay on United States Judge Ginny Grande’s Jan. 23 ruling in Searcy v. Strange, the case that effectively overturned a ban on same-sex marriage in Alabama.
However, only four days after telling reporters his staff was prepared to issue marriage licenses to all couples, Davis spent the majority of the day Monday behind closed doors with legal counsel determining the most appropriate course of action.
The confusion wasn’t just local, as a majority of probate courts in counties across the state chose either to only accept marriage applications, refuse to facilitate same-sex marriages or put a freeze on their marriage divisions altogether.
Attorneys for Cari Searcy attributed a lot of the confusion to a last-minute order issued by Alabama Chief Justice Roy Moore Feb. 8 that once again urged Alabama’s probate judges not to perform same-sex marriages in defiance of Granade’s ruling.
Moore’s unprovoked order suggested the Alabama Department of Public Health’s redrafting of state marriage licences to include same sex options was in “contradiction to the public statements of Gov. Robert Bentley to uphold the Alabama Constitution.” Moore also went on to say “should any probate judge fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of Gov. Bentley to ensure the execution of the law.”
Bentley was quick to respond, releasing a statement through his press office saying though he was disappointed in the ruling, he would not take any action against probate judges who facilitated marriages for people of the same-sex, as it would “only serve to further complicate the issue.”
“The issue of same-sex marriage will be finally decided by the U.S. Supreme Court later this year,” his statement read. “I have great respect for the legal process, and the protections that the law provides for our people.”
Despite the governor’s frankness, and rulings by both the 11th Circuit Court of Appeals and the United States Supreme Court denying the state’s multiple requests for a longer stay, the conflict between Moore’s order and Granade’s ruling left Davis unclear as how to proceed for quite some time.The result was multiple same-sex couples waiting anxiously for the “marriage license” window to open up on Monday, with no word from probate staff until 2:30 p.m., around eight hours after the first couples arrived at the courthouse.
In a prepared statement, Davis said the “marriage license section of the court’s recording division would remain closed pending further instructions” from either the U.S. Supreme Court or Alabama’s Supreme Court.”
Davis performed his regular court duties throughout the most of the day, but in his prepared statement said his personal counsel had advised him to avoid the awarding of marriage licenses because of what he referred to as “unprecedented conflicts of law between the federal and state courts.”
Attorneys David Kennedy and Christine Hernandez said they were disappointed other large counties in Alabama — like Madison, Montgomery and Jefferson — seemed to be handling the change much smoother than Mobile County.
Kennedy said following the Supreme Court’s denial of a permanent stay, same-sex marriage became the law of the land in Alabama. He also also said the Supremacy Clause of the U. S. Constitution was written with this exact type of conflict in mind.
“Sometimes good politics and a correct interpretation of the law don’t mix,” Kennedy said. “And, some people are sore losers.”
The probate court’s failure to operate the marriage license window provoked a contempt of court request in Searcy V. Strange — the case that started all of the same-sex discussion in Alabama. However, Granade was quick to deny that request, saying “actions Davis or others who fail to follow the (U.S.) Constitution could be initiated by persons who are harmed by their failure to follow the law. However, no such action is before the court at this time.”
That ruling, which was filed shortly after 3 p.m., essentially paved the way for lawsuits from those denied the chance to marry Monday, and one such lawsuit has already been filed by Hernandez and Kennedy.
Hedgepeth v. Probate Court of Mobile County compiles around 10 couples denied a chance to marry, though the complaints will be filed collectively, Hernandez said it is not a class action lawsuit.
“We will be seeking individual damages from the state … we’ve been entrenched with trying to resolve this issue civilly and peacefully, and it does not appear it is going to be resolved. I think they’ve (probate court) taken a position of silence,” she said.
Further, Hernandez said in asking for civil contempt, there could be fines and “the very real possibility that somebody could go to jail.”
So far, the state has filed no response to the new lawsuit, but Davis, two of his ranking staff members, Bentley, Moore and Alabama Attorney General Luther Strange are named as defendants in the case and expected to receive subpoenas soon.
There were also around 12 heterosexual couples prevented from obtaining marriage licenses because of the freeze issued by Davis, though it’s not known if any of those couples are participating in this or any other legal action.
As 5 p.m. Monday, only nine of Alabama’s 67 counties were marrying all couples as expected. Many counties, like Mobile, have refused marriage licenses from all couples, while other, like Baldwin County, are accepting applications but not awarding same-sex marriages licenses pending further developments.
However, Hernandez and Kennedy said there is no legal argument preventing the state from having to recognize same sex marriages performed in other states. They also said marriages performed in other counties would be recognized as well, though they were quick to say “every resident should have the right to get married where they live.”
“Alabamians need to be able to transact their business in Alabama, and the same goes for Mobile County residents in Mobile,” Kennedy said.
Lagniappe will continue to post updates on this developing story as they are made available.