Recognition of same-sex marriage (SSM) & LGBT equality
2015-MAR to MAY:
AL Supreme Court issues order to Probate Judge
(Cont'd). Judge petitions federal District
Marriage equality stalled.
In this web site, the acronym "SSM" refers to same-sex marriage. Also, "LGBT"
refers to the Lesbian, Gay, Bisexual and Transgender/Transsexual community.
PC(USA) refers to the Presbyterian Church (USA).
2015-MAR-10: Alabama Supreme Court issued a direct order to Probate Judge Don Davis, for the County of Mobile, AL (Cont'd):
Scottie Thomaston, writing for Equality On Trial -- a pro-equality group -- wrote that:
"The Alabama Supreme Court has, after denying Mobile County Probate Judge Don Davis’ request to extend the time for him to reply to their order, denied outright his request to remain unaffected by their recent decision enjoining all county clerks from issuing marriage licenses.
Instead, the court wrote, 'Davis is added' to the existing state supreme court case, 'and is subject' to the court’s order blocking county probate judges from issuing marriage licenses to anyone but opposite-sex couples.
Davis is still under a federal court order to issue the licenses so now he is truly stuck between federal and state law." 1
On the advice of his lawyer, he decided to shut down the marriage license facility in Mobile, AL and to refuse to issue marriage licenses to anyone. Fortunately, the laws of Alabama give him a little bit of wiggle room. They state that a Probate Judge "may" issue marriage licenses. That could be interpreted to mean that he has the option of not issuing licenses at all. Unfortunately, Judge Davis is under a direct order from the District Court to issue licenses.
It is an intolerable mess.
The Alabama Supreme Court may have made an error in their order. They stated that the state ban on marriages by same-sex couples is compatible with the U.S. Constitution. That might give Davis grounds to appeal the Alabama Supreme Court ruling to the 11th U.S. Circuit Court of Appeals.
However this situation develops, the Alabama Supreme Court has clearly placed the state in a constitutional crisis.
Reader "brandall" posted a comment to the article in Equality on Trial, saying:
"The same thing happened in the school segregation legal fights. This is a replay." 1
One wonders if we will soon see federal marshals in the office of every probate judge in Alabama, similar to what happened in 1963-JUN-11 when Governor George Wallace blocked the schoolhouse door at the University of Alabama to prevent two black students from registering for classes.
There is an ancient Chinese saying to cover situations like this:
"May you live in interesting times."
2015-MAR-11: Probate Judge Don Davis of Mobile files petition to the federal District Court in Alabama:
Davis is under direct orders from two courts:
The U.S. District Court in Alabama requires him to issue marriage licenses to qualified same-sex couples.
The Alabama Supreme Court requires him to issue licenses only to opposite-sex couples.
There is no way for him to satisfy both rulings and to resolve this conflict. He might hope for some relief in mid-2015 when the U.S. Supreme Court hands down its decision in a same-sex marriage case involving Kentucky, Michigan, Ohio, and Tennessee which may make marriages by same-sex couples available across the country. But even if that were to happen, there are indications that the Alabama Supreme Court might refuse to follow the high court's ruling. This is a constitutional crisis affecting Alabama that might spread elsewhere in the deep South.
He filed a petition to the U.S. District Court saying:
"Few, if any, issues of law currently are as uncertain in this state and country as that of the marriage and associated rights of same-sex couples. Conflicting rulings from this court and the Alabama Supreme Court, as well as the imminent ruling by the U.S. Supreme Court on the rights of same-sex couples, have created much confusion about what the applicable law requires." 2
The core problem is that both the U.S. District Court and the Alabama Supreme Court have the authority to interpret the U.S. Constitution and they have come to opposite conclusions about what it requires.
Lyle Denniston, writing for the National Constitution Center, said:
"Judge Granade faced a quite unusual situation: it is not common, these days, for federal and state courts within one state to get into a struggle for power or primacy on a current legal issue. There is something called “comity,” which generally means showing mutual respect between two levels of government. That is a basic necessity, given the dual system of courts that exists in the U.S., with each having the authority to interpret the national Constitution.
Without necessarily stepping aside after a court at one level rules on a constitutional question, a court at the other level usually will not lunge right into a disagreement. There is some room for flexibility, in the management of court cases, and mutually respectful courts can use that to maintain harmony.
In the Alabama situation, though, something has occurred that puts comity to a severe test. The Alabama Supreme Court, without having a case before it directly testing the constitutionality of Alabama’s same-sex marriage ban, used a procedural claim by opponents of such marriage to reach out to decide that the state ban was, indeed, valid under the federal Constitution. Only one of that court’s members dissented, arguing that it had no authority to do what it did...."
"Whatever happens in coming days, a controversy that has already stirred deep emotions on both sides may create even harder feelings, and generate a question for ordinary citizens on how the dispute has come to this." 2