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Saturday, April 25, 2015

If I've lost the media . . .

I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with  Orin Kerr and with me.

But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.

Posted by Howard Wasserman on April 25, 2015 at 11:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

That the media keeps characterizing Alabama incorrectly.

Posted by: Howard Wasserman | Apr 26, 2015 8:31:17 AM

I'm sorry, what is the point of this post???

Posted by: AnonProf | Apr 26, 2015 1:08:37 AM

Mighty Impressed, If you think it is a humble brag to correspond with Emily Bazelon, you have got to be really, really isolated inside some strange legal-politico bubble.

Much more likely is that Howard is passing on an article on a subject that he's blogged about extensively and did so with some context.

Thanks for the pointer Howard.

Posted by: Bryan G. | Apr 25, 2015 8:21:17 PM

Is this a humble brag that you were corresponding with Emily? You even got to be interviewed by her, and alongside Orin Kerr no less!

Posted by: Mighty Impressed | Apr 25, 2015 5:27:08 PM

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