Last this afternoon Alabama’s Supreme Court issued a writ of mandamus ordering the state’s probate judges to cease issuing same sex marriage licenses immediately, which would appear to be in defiance of previous federal rulings from U.S. District Judge Ginny Granade, the 11th Circuit Court of Appeals and the U.S. Supreme Court.
After being asked for a clear judicial ruling by the Alabama Policy Institute and the Alabama Citizens Action Program a little more than a week ago, the state’s highest court today issued a 150-page order effectively saying Alabama’s sanctity of marriage laws, which were overturned in Searcy v. Strange, are to be followed in Alabama.
For almost a month, the state has seen a patchwork of counties choosing to issue the licenses to same sex couples while others only issued them to heterosexual couples. Still, some counties refused to issue any marriage license at all.
One of the key provisions of the writ of mandamus states that the issuance of a federal court “doesn’t prevent” Alabama’s Supreme Court from acting.
“Although decisions of state courts on federal questions are ultimately subject to review by the United States Supreme Court, as are decisions of federal courts, neither “coordinate” system reviews the decisions of the other,” the order reads. “As a result, state courts may interpret the United States Constitution independently from, and even contrary to, federal courts.”
In short, the order also said Alabama’s probate judges have a ministerial duty not to issue any marriage license contrary to this law. Only Justice Greg Shaw issued a dissenting opinion, which seemed based on procedural issues. In that opinion, Shaw said the state was “venturing into uncharted waters” that could “potentially upset established principles of law.”It also appears Chief Justice Roy Moore recused himself from the decision. Moore has been vehemently outspoken against same-sex marriage since Granade overturned the state’s sanctity laws Jan. 23.
The dissenting opinion seems to be shared by David Kennedy, one of the two Mobile lawyers who represented the same-sex couple that effectively had the state’s laws overturned. Kennedy said the decision is unprecedented and said the people of Alabama “deserve better.”
“No Alabama court can override federal constitutional law,” he said. “Our nation’s highest court refused to allow Alabama to discriminate against same-sex couples beyond Feb. 9. Our state Supreme Court has endorsed nullification of that order. It can’t be clearer: when a state court decision or state law conflicts with a federal law or a decision of the federal judiciary on a federal constitutional question, federal law wins.”
Kennedy also said probate judges who try to uphold the sanctity laws “do so at their own peril regardless of what the state Supreme Court says.”
Mobile County Probate Judge Don Davis is mentioned directly in the ruling, which will give him until Thursday to provide support for argument to be removed from the current legal matter with the state. Because he was directly ordered by the federal court to begin issuing same-sex marriage licenses, Davis had opted to be dismissed from the lawsuit.
The state’s other 66 probate judges have a five day period to show cause for why they should be able to issue same-sex marriage licenses to same-sex couples.
Lagniappe will have more on this developing story as it moves through the court system.
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