‘We have won:’ Federal judge orders probate court to issue marriage licenses to same-sex couples (updated)

U.S. District Court Judge Ginny Granade ruled this afternoon that Mobile County Probate Judge Don Davis cannot withhold marriage licenses from applicants based on their sexual orientation.

More than 100 spectators crowded Granade’s courtroom earlier to witness the “contempt of court hearing” against Davis, though Davis himself wasn’t present. The charge was filed in the case of Strawser v. Strange, which along with Searcy v. Strange declared the state’s laws forbidding same-sex marriages were unconstitutional. Davis was added as a defendant to the Strawser case Monday, after the local probate court stopped issuing marriage licenses to all couples.

In his only public statement on the matter, Davis said his decision to stop issuing all licenses was due to conflicting orders from Granade and Alabama Supreme Court Justice Roy Moore, who ordered probate judges to ignore the federal interpretation.

As a result of the conflict, Davis’ attorney Michael Druhan compared the probate judge’s position to that of a Vietnam soldier standing on a landmine.

“If he stands there, he’ll be shot. If he moves, he’s going to blow up,” Druhan said. “It’s very serious problem.”

Druhan was the only legal counsel representing Davis, and kept his remarks very brief during the hearing – saying only that the probate court was looking for guidance from the court because of “two conflicting orders.”

When asked why the conflict wasn’t clarified by the Supremacy Clause, which establishes federal law’s precedence over those adopted by the states, Druhan said he had “not personally researched that” and would not “issue an opinion on it.”

Randall Marshall, legal director of American Civil Liberties Union of Alabama, was prepared to issue a statement on it and said there shouldn’t have been any confusion about what he referred to as “Constitutional Law 101.”

“If Alabama’s constitution and the Alabama statute are set said, which they were in the case, certainly a court order entered after that would be set aside as well. That’s the way federalism works in this country,” Marshall said. “This should come as no surprise to anyone, and particularly to a chief justice.”

Marshall said Moore’s last minute order was incorrect from a legal standpoint on a state and federal level, but Christine Hernandez, who represented the case’s original plaintiffs, went on to call it “void from the moment he pressed save on his word document.”

Hernandez noted Alabama law prevents a judge under investigation by Alabama’s Judicial Inquiry Committee (JIC) from issuing any administrative order. Moore is currently under investigation due to a complaint filed by Alabama’s Southern Poverty Law Center for his recommendation to probate judges across the state to “defy a federal order” and refuse to issue same-sex marriage licenses — comments he made Jan. 27 in an open letter to Gov. Robert Bentley.

“Once the judicial inquiry complaint was filed against him, Judge Moore no longer had the authority to issue an administrative order. That’s been previously litigated, and it’s in the Alabama Constitution,” Hernandez said. “The second amended complaint was filed by the SPLC on Feb. 3, and unless its resolved, Judge Moore has no authority to issue any type of administrative order.”

Hernandez argued that point in front of Granade this afternoon as well, and requested the court officially void Moore’s Feb. 8 order to prevent confusion among other probate judges in the state.

Marshall called Moore’s last minute attempt a “ploy,” but said he expected Granade to make the ruling for injunctive relief — making it “crystal clear” that an administrative order or “any other kind of attempted ploy” is not going to stand.”

Marshall wasn’t the only one confident Granade would side with the case’s plaintiffs. Cari Searcy and Kimberly McKeand — the couple’s whose case initially overturned Alabama’s same-sex marriage ban — said it felt like they had already won, but after the hearing, they were just waiting for confirmation.

Hernandez was quick to interrupt the couple saying, “We have won.”

Neither of the plaintiff’s attorneys could give details about Moore’s pending investigation by the Judicial Inquiry Committee, but Hernandez did say she expected the outcome to be “very similar to the first time a JIC complaint was filed against him,” which famously resulted it Moore being ousted his position by Alabama’s Court of Judiciary.

As for the marriages, several received licenses were awarded shortly after the doors were ordered open around 4 p.m. The first couple to receive a license was Robert Povilat and Milton Persinger, who have made national media outlets several times over the past few days.

The pair sat for hours on Monday waiting for the windows to open at the marriage license kiosk, and as each day passed Povilat an Persigner were given the first place in line by whoever was in front of them. After four days, nearly 100 hours — Povilat was handed a pink card with “1” printed on it.

“It was a little bit of an inconvenience to have to do it this way, but right now there are several gay and lesbian couples that aren’t getting what we’ve fought for,” Persinger said. “I hope this is a stepping stone for all of us who are wanting legalized marriage.”

Despite the being the face of a controversy that made headlines across the “bible belt” Povilat said they saw overwhelming support from the Mobile community.

“Just walking here from the federal courthouse, we had total strangers get out of the car and congratulate us. That tells me this community understands what we’re trying to accomplish, and that this community is ready for this.”

Updated to include information about the first same-sex marriage in Mobile County.

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