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Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I don't think you can separate (the public perception) of George Wallace's defiance of a court order from George Wallace's bigotry. That is, his defiance was a product of his bigotry. And that is the code everyone understands when you mention him.

Perhaps some of the probate judges or the association heads are anti-gay bigots. Certain Chief Justice Roy Moore (see more recent posts) has shown himself to be. But at least here, there is a non-bigoted principle that seems pretty obvious--these probate judges are not actually defying anything because there is no source of law compelling them to act in some way (i.e., issue SSM licenses).

Posted by: Howard Wasserman | Jan 29, 2015 7:11:37 AM

The brief's reference to Wallace might be wrong == no comment == but it didn't directly call anyone a "bigot."

The reference was to "staring defiantly upon this Court’s order" and alleged the probate judges provided "reasoning that not all citizens of Alabama are entitled to the same rights and privileges afforded under the Constitution of the United States."

The argument that such "defiance" is not present here is understandable. That is also where the Wallace reference gets much of its bite -- someone standing in front of the door saying "STOP."

The "bigot" part is less so. That is an ugly word that suggests animus. The claim that the judges are treating these defendants unequally is standard litigation boilerplate. The inference of "bigotry" here only comes from the symbolic power of George Wallace. I think the "defiance" aspect is really what they were going for there.

But, I see how someone can read that differently. Still, not quite "bigot" even then.

Posted by: Joe | Jan 26, 2015 11:51:34 AM

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