Motions to dismiss claims against four state officials have been filed in federal court as a part of Alabama’s response to a lawsuit challenging its same-sex marriage ban.
The motions aim to dismiss claims against Alabama Gov. Robert Bentley, Attorney General Luther Strange, Alabama Department of Human Resources Commissioner Nancy Buckner and Mobile County Probate Judge Don Davis.
“This is a case about marriage equality and the recognition of out of state lawful marriages of same-sex couples,” Attorneys David Kennedy and Christine Hernandez said in a press release. “Alabama’s unilateral decision to nullify, or strip away the lawful marriage of Alabama residents without due process negatively affects all those lawfully married same-sex couples in other states and particularly their children.”
A child was at the root of this particular case, which was filed by Mobile resident Cari Searcy. She has sought to legally adopt her wife Kimberly McKeand’s son Khaya since 2011.
Searcy’s lawsuit seeks a judge’s injunction in federal court that would allow the adoption under Alabama’s stepparent adoption statute (Ala. Code 226-10A-27) — an argument that already been denied both in Mobile County’s Probate Court and the Alabama Court of Civil Appeals.
Davis is named in suit because he denied Searcy’s petition for an adoption in 2012. Probate courts have sole jurisdiction over the adoptions of minors in Alabama and Davis is only probate judge in Mobile County.
In its response, the state maintains ‘the claims asserted against Judge Davis are based on judicial actions and are barred by judicial immunity,” which is outlined in the 11th Amendment.
In all previous cases the Alabama Code 1975 Section 30-1-19(e) has been used to deny Seracy the right to adopt Khaya despite being McKeand’s spouse.
That section of the law states Alabama “shall not recognize any marriage of parties of the same sex” that occurred in other states.
In a separate filling, the defense requested dismissals for Bentley and Strange. “Governor Bentley fully supports the laws at issue in this litigation, but naming him as a defendant and subjecting him to the attendant rigors of litigation, is incompatible with basic notions of sovereign immunity and the federal courts’ proper adjudicative role,” the response reads.
Hernandez said all of the defendants named in suit have filed motions to dismiss and she and her partner have two weeks to submit responses to those requests. The state has yet to respond to the actual complaint filed in federal court on May 7. “We’re currently set in front of U.S. Magistrate Judge Katherine Nelson,” Hernandez said. “We’ve already filed a summary judgment and we’re planning to file a motion for an injunction next week.”
A date for a hearing on the case won’t be set until all of the responses have been filed.
Hernandez said her client’s case in the Southern District is one of three filed against the state currently.
It joins similar suits in the Northern and Middle districts attempting to challenge Alabama’s refusal to recognize same-sex marriages performed in other states.