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Thursday, February 12, 2015

Now we have a meaningful federal order

The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.

So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:

1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.

2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.

3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.

4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.

Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2.  In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.

Posted by Howard Wasserman on February 12, 2015 at 05:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Whoops--wasn't thinking about joinder. Good point.

Posted by: Steve H | Feb 13, 2015 9:51:17 AM

Absent a defendant class, I'm not sure a Middle District couple could join in the same action as Strawser. It's not the same transaction or occurrence, because it involves entirely unrelated couples and entirely unrelated defendants in unrelated counties. Other than that they all involve same-sex couples wanting to marry and challenging the validity of the state ban, there is no transactional or logical relationship between these claims. So the Middle District plaintiffs must file their own action and venue would be in the Middle District.

I am not sure if he is required to issue licenses but not required to perform marriages. You're right that the injunction was framed as a negative. Even if he could simply stop issuing all licenses, I would be surprised if he did so.

Posted by: Howard Wasserman | Feb 13, 2015 9:42:49 AM


I'm with you almost all the way, but what would force an out-of-district Alabama same-sex couple to file a new suit? Personal jurisdiction operates at a state level, and venue in Judge Granade's court seems proper as to out-of-state judges added as defendants to the current litigation. See 28 USC 1391(b)(1) (providing for venue in a judicial district in which "any defendant resides, if all defendants are residents of the state"). Is there some special venue that applies when you seek to intervene and add a defendant after a judgment has been entered?

Posted by: Steve H | Feb 13, 2015 9:34:34 AM

As I suspected, the order merely enjoins Judge Davis from enforcing AL's laws that prohibit, and fail to recognize, same-sex marriage. So, technically, they don't require him to grant same-sex marriage licenses, as long as he doesn't grant any opposite-sex marriage licenses either -- which, as mentioned earlier, I don't think he's *required* to do under state law.

Posted by: Hash | Feb 12, 2015 10:22:28 PM

Does the order affirmatively require granting the license? The quote in the NYT article only says Davis is enjoined from denying a license on certain grounds. But can't he just refuse to grant any licenses? I thought I saw somewhere that AL probate judges have no state-law duty to grant marriage licenses at all.

Posted by: Hash | Feb 12, 2015 8:24:48 PM

I'll give you that, but I still don't think it's inconceivable that another district judge in Alabama could agree with the Sixth Circuit, and the likely view of at least three Justices. Especially if there are some fairly conservative district judges in Alabama. At the least, some probate judges could reasonably believe they have a shot in district court.

Posted by: Anon | Feb 12, 2015 7:37:26 PM

Maybe they should have, which is why I have said that they have been practically stupid but legally correct. But the original injunction did not affect anyone that matters to the question of marriage licenses. I think there is symbolic value to seeing one of their own obligated to actually issue licenses to same-sex couples.

Posted by: Howard Wasserman | Feb 12, 2015 6:20:36 PM

"I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans."

Why? Because of what the Supreme Court's declining to stay Judge Granade's original decision suggests about how they'll rule in late June? Plaintiffs lost in the Sixth Circuit in August and Louisiana in September, at a time when the ultimate outcome of this litigation in the Supreme Court wasn't a whole lot less clear than it is now, so it's not a given that every district judge in Alabama would follow the Court's signals. I also don't see why Judge Granade's enjoining one probate judge makes much difference for probate judges in other districts, if you're right. You're claiming that it's not worth the effort because the outcome of a suit against a probate judge before any district judge in Alabama is preordained, but if that's true it was true before Judge Granade's injunction today.

Posted by: Anon | Feb 12, 2015 6:10:30 PM

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