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Tuesday, February 10, 2015

The irony of trying to have it both ways

Much of what is happening with same-sex marriage in Alabama right now is a product of  a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.

Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.

In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.

There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.

But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.

Posted by Howard Wasserman on February 10, 2015 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Only if the defendants brought a (rare) defendant class action. Otherwise, no. Plaintiffs in the other districts must sue probate judges in that district. But Judge Granade's order has just as much persuasive effect there as anywhere else.

Posted by: Howard Wasserman | Feb 10, 2015 7:30:17 PM

Question: does Judge Granade have any power to enjoin a probate judge outside her district? (Alabama is blessed with three district courts, Northern/Middle/Southern.)

Posted by: Anderson | Feb 10, 2015 5:13:07 PM

There is clear, binding precedent in the Tenth Circuit holding that same-sex marriage bans are unconstitutional. But that hasn't cleared up matters much in Kansas, where there are similar issues to Alabama as far as the limited scope of the injunction issued by the district court.

Posted by: JHW | Feb 10, 2015 1:52:08 PM

The Washington Post reports this morning, February 10, 2014, that, unfortunately, despite the federal court’s decision and injunction, county officials aren’t issuing marriage licenses to gay couples. Separate lawsuits have been filed against local officials. Why must these couples file separate lawsuits? The county Probate Judges cite an order from Alabama’s Chief Justice that they may ignore the federal decision and injunction.

That a state official must obey federal law is not controversial. But Alabama authorities ignored and defied Brown v. Board of Education as precedent for 15 years. The tradition of denying precedent, exaggerating state power, and exploiting ambiguity lives on.

The ambiguity Alabama’s present Chief Justice exploits stems from a person’s duty to obey an injunction or be held in contempt. Federal Rule of Civil Procedure 65(d)(2), which the Chief Justice quotes, defines three groups that are subject to contempt: the parties, agents and agent surrogates, and others “in active concert or participation.” Alabama’s attorney general was the only defendant in the gay-marriage lawsuit. Probate Judges are free-standing elected officials, not agents of the named defendant. They are acting independently of the named defendant, ostensibly under the Chief Justice’s aegis. Hence, they aren’t “bound.”

Ambiguity also lurks in stating the question as whether a person is “bound” by a court decision. “Bound” can mean subject to the decision in the sense of precedent, res judicata-preclusion, or subject to contempt for ignoring the decision. In addition to arguing that the probate judges aren’t “bound” by the injunction, the Alabama Chief Justice, in Alabama’s unfortunate tradition of defiance, also exaggerates state sovereignty almost to interposition at the expense of federal precedent.

In the civil-rights era, when suing a state official and freestanding local officials like the probate judges, plaintiffs often filed a Rule 23(b)(2) defendant class action for an injunction. The first Deep-South official to be held in contempt was Greene County Alabama Probate Judge Herndon for disobeying a federal-court class-action order to include NDPA candidates on the ballot. In re Herndon, 394 U.S. 399 (1969); Hadnott v. Amos, 325 F.Supp. 777 (M.D.Ala. 1971) (compensatory contempt); In re Herndon, 325 F.Supp. 779 (M.D.Ala. 1971) (criminal contempt).

Contempt for a defendant class-member’s violation of an injunction raises issues of notice, representation, and inability to opt out. For two versions of Herndon’s sordid story, see Sheryll Cashin's Hadnott v. Amos: Unleashing the Second Reconstruction page 61 in Civil Rights Stories (Myriam Gilles & Risa Goluboff editors 2008) and Doug Rendleman, Complex Litigation: Injunctions, Structural Remedies, and Contempt 1065-76 (2010).

But if all of Alabama’s probate judges had received notice of a defendant class action, that it was certified, and later an injunction, only the bravest or most foolhardy would have risked Herndon’s fate by refusing to issue a marriage license.

Doug Rendleman
Washington and lee

Posted by: Doug Rendleman | Feb 10, 2015 12:56:19 PM

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