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Saturday, February 07, 2015

Queued up

Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.

So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.

Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.

Posted by Howard Wasserman on February 7, 2015 at 04:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Be careful saying the "law in the jurisdiction has been clearly established." "Clearly established" is a term of art and the law in Alabama cannot be clearly established by a single district court decision. And that decision is not "unchallenged;" it is on appeal to the 11th Circuit.

Posted by: Howard Wasserman | Feb 8, 2015 3:39:17 PM

Licenses will issue all over Alabama tomorrow regardless of whether Ben Bowden gets sued, because the law in the jurisdiction has been clearly established by an unchallenged district court opinion. The Alabama Probate Judge Associate last week reversed its position on the legal obligation of probate judges to issue licenses based solely on the ruling + clarification issued by Judge Granade. Of course state courts have no obligation to follow the federal court ruling in evaluating cases (that are properly on their dockets) that involve of the constitutionality of these Alabama Laws, but no one is asking them to do that. In issuing licenses, probate judges are not judging.

Posted by: Anon | Feb 8, 2015 2:52:24 PM

The defendant class action was what I suggested on the other thread as well. You'd probably need classes on both sides of the "v" to make it work.

Posted by: Steve H | Feb 8, 2015 2:36:01 PM

why not a defendant class? Could get em all in one...

Posted by: KLK | Feb 7, 2015 11:10:13 PM

No, not at all. I am saying that is how you get Judge Bowden to issue marriage licenses. And while an individual action would only obligate him to issue the license to that one couple, it would give him a pretty strong hint as to the others, so the force of precedent might change his behavior.

A class action would do it, although you may have a numerosity problem. And, in any event, the class would be limited only to people seeking licenses in Covington County.

Posted by: Howard Wasserman | Feb 7, 2015 10:46:16 PM

why not a class action?

Posted by: KLK | Feb 7, 2015 9:08:23 PM

Howard, are you saying that you expect the federal district court to issue an injunction that requires all probate judges to issue marriage licenses? How so? Even if the federal district court grants a motion on Monday forcing Judge Bowden to issue a license, why would that bind other state probate judges and not just this probate judge? Why, for that matter, would it require Judge Bowden to issue licenses in other cases? Shouldn't the issue instead be allowed to percolate through the Alabama courts, at which point the plaintiffs could seek cert to the U.S. Supreme Court from an adverse Alabama Supreme Court decision? Could a federal district court issue an injunction requiring Moore and company to mandamus probate judges who refuse to issue licenses?

Posted by: Marc Falkoff | Feb 7, 2015 8:02:38 PM

I can't access that link but an article quotes him:


Generally fine. This part was a bit of a concern:

"In addition to Judge Granade’s ruling, I have also received very clear instructions from the Chief Justice of the Alabama Supreme Court that I should not issue marriage licenses to same-sex couples."

Uh huh. The final result probably is as you say. Personally, I think we need to look past this issue. A single federal judge could decide something patently wrong & some who think she is right here as to SSM should be wary of an across the board "just follow a federal district judge" rule.

The reason to do so here in effect was that on balance her view of federal constitutional law is fairly clearly the correct one. The state judge's independent judgment would follow her lead. But, in some other case, I bet some SSM supporters would appreciate a state judge not following the lead of some federal district court w/o clear requirements to do so.

Posted by: Joe | Feb 7, 2015 4:28:10 PM

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