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Wednesday, January 28, 2015

If you say so

Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.

On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).

Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*

* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.

(H/T for all of this: Josh Blackman and Howard Bashman)

Posted by Howard Wasserman on January 28, 2015 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


The "is binding on everyone" point is duly noted.

But, something else was said. And, the first comment and mine addressed it.

Posted by: Joe | Jan 29, 2015 12:31:37 PM

It's especially noteworthy because, unlike in Florida where the Republican leadership seemed fairly content to let this issue go away, you'd think there are any number of Alabama officials who want to fight this until the end (this is what has been happening in Kansas, where there's a similar issue, and the limited scope of the injunction issued by the district court there has actually mattered). If the higher courts deny Alabama's stay requests, should be interesting to watch.

Posted by: JHW | Jan 28, 2015 10:01:12 PM

It's a game and no one knows the actual rules.

Posted by: Howard Wasserman | Jan 28, 2015 9:50:13 PM

Also like Florida, the professional association for the people who issue marriage licenses reversed itself: http://www.al.com/news/mobile/index.ssf/2015/01/alabama_probate_judges_group_a.html

Posted by: JHW | Jan 28, 2015 9:41:46 PM

If Moore flagrantly disregards a SCOTUS decision, then you have grounds for an ethics complaint. But everyone (including the SPLC) is acting as if the decision of a single district court judge is binding on everyone, including non-parties, in the state and not following that opinion is flouting the Constitution. And that just isn't the case.

Posted by: Howard Wasserman | Jan 28, 2015 5:50:14 PM

If "most people" will do something, some would not. Right?

As to Roy Moore waiting, he will have company. I don't know anything about his colleagues, but odds are they aren't quite as "colorful" as he is.

Not unlikely someone will bring a case in state court regarding licensing, adoption issues or something else, especially since some will figure the Supreme Court will uphold SSM rights in June. Litigation takes time, so by the time CJ Moore et. al. hears the case, the USSC will have spoken. Still, who knows? Maybe, Roy Moore thinks the ghost of Thomas Jefferson thinks they can still refuse to follow the USSC when "tyranny" is involved.

Posted by: Joe | Jan 28, 2015 5:43:38 PM

But neither one of those cases is going to come up in the next few months. Is there really going to be a divorce a week after the license issues? The short-term events are going to be requests for a license and a constitutional challenge to the denial, which most people will bring in federal court (especially knowing Moore is waiting in the Alabama S Ct).

Posted by: Howard Wasserman | Jan 28, 2015 5:13:14 PM

Professor Wasserman, the SPLC complaint lays out how same-sex marriage could end up in Alabama state courts: through a family law case such as divorce or adoption. I don't read the complaint as even raising the possibility of a direct challenge. For that matter, the theory that Moore violated the applicable rules by commenting on a case that is likely to come before him is just one part of the one the complaint's three counts, the other two of which concern Moore's apparent belief that the federal constitution is not the supreme law of the land and his disrespect for the federal judiciary, which he has described as practicing "tyranny."

Posted by: Sykes Five | Jan 28, 2015 4:31:59 PM

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