Some movement in Alabama

After a smattering of news and small initial steps in response to Obergefell in Alabama, Monday produced some definitive news.

1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.

2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.

3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.

4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.

This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.