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Wednesday, January 06, 2016

Alabama (still) does not go gentle . . .

Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..

The linchpin of his analysis is that Obergefell is not directly binding on Alabama probate judges or as to Alabama law; this, Moore insists, is the "elementary principle" that a judgment only binds the parties to that case. Thus, no higher court has spoken to the validity of Alabama's same-sex marriage law or the obligation of Alabama officials to recognize same-sex marriages; instead, we are still waiting for SCoA to address the statutory and constitutional questions in the mandamus proceeding. Moore is right about the scope of SCOTUS's decision. Interestingly, he draws support from cases out of Kansas and the Eighth Circuit that rejected the argument that Obergefell mooted challenges to the laws in these other states; those courts all insisted that Obergefell was merely binding precedent in future litigation, but did not speak to laws or officials or couples in these states, thus leaving those cases as active disputes. In other words, Moore finds support for the position of the Alabama government in cases rejecting the position of these other state governments.

Unfortunately for Moore (or at least for some Alabama probate judges), he ignores the class certification in Strawser v. Strange in the Southern District of Alabama. There is an extant class-wide injunction in the district court declaring the state SSM ban unconstitutional and binding every probate judge to issue licenses to any same-sex couple that wishes to marry in Alabama. That injunction immediately took effect when SCOTUS issued its decision in Obergefell. Thus, while Obergefell is not binding on anyone in Alabama, the district court judgment is. So Moore's order is setting some probate judges up to be held in contempt of that injunction, as well as for  damages liability, since Obergefell should clearly establish the right of a same-sex couple to a marriage license, barring outside issues (Ron Krotoszynski his a similar point in The New York Times). And, unlike with Kim Davis, no new federal litigation need be filed; a couple can jump straight to enforcing the injunction.

I am not surprised Moore would ignore that inconvenient piece of information. But I also have not been able to find any indication of activity or orders in Strawser since the summer. Probate judges in several parts of Alabama have been refusing to issue licenses all along, but I have not seen anything about plaintiffs or the court moving to enforce the class injunction. It will be interesting to see whether Moore's new order shakes loose some activity in federal court.

Update: That Times piece is notable because there is no mention of the Strawser litigation. That, not Obergefell, is the key to all of this. That is what binds and compels probate judges to issue the licenses, not Obergefell simpliciter. Will no one ever get this right?

Further Update: Yes, Chris Geidner at Buzzfeed, who generally does a good and accurate job of covering this stuff.

Further, Further Update: Based on Chris' report, in concluding that Obergefell "abrogated" the SCoA decision, the Eleventh Circuit dismissed the appeal as moot. Both of those conclusions are wrong (Marty is right about that in his comment), as well as inconsistent with the Eighth Circuit mootness cases that Moore cited in his order.

Posted by Howard Wasserman on January 6, 2016 at 05:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


In this cases damages would be available because the judges would be acting in a ministerial capacity, not in a judicial capacity.

Posted by: anon | Jan 7, 2016 4:50:11 PM


Are damages available against a judicial officer? While the right to SSM is clearly established, my understanding is that judges have absolute immunity (for judicial acts) under Section 1983.

Posted by: Adam | Jan 7, 2016 11:52:56 AM

When in doubt, snark. Anonymously. OK:

• Because it is "supreme" to all the "inferior" courts and tribunals. Nothing in the text makes it supreme to anyone or anything else.
• "To pass on questions of legal interpretation" . . .Yes: In the course of resolving a case or controversy between discrete parties in a particular dispute and entering a judgment binding on those parties.

• Only if the US and every one of its member states was a party to the case. And then only as to the plaintiffs involved in that case. Otherwise, new litigation and a new judgment, applying Obergefell (which the lower courts must follow) is necessary.

Posted by: Howard Wasserman | Jan 7, 2016 11:13:44 AM

"That argument depends on the conclusion that the Constitution means what SCOTUS says it means, which is not necessarily the case (unless you adhere to judicial supremacy, which I don't)."

Funny that they call it the "Supreme Court" then, eh? And that the constitution invests it with "the judicial power of the United States..." It's almost as if the Court were meant to pass on questions of legal interpretation, including the constitution.

"An executive's obligation to act the way the judiciary says it must has to come from something else--a judgment."

So if Kennedy had just added after the word "reversed," the words "The United States and its member states are hereby ORDERED to stop discriminating in the provision of marriage licenses, and the attendant benefits and responsibilities resulting therefrom, on the basis of sexual orientation," you'd be satisfied?

Posted by: anon anon | Jan 7, 2016 10:59:37 AM

That argument depends on the conclusion that the Constitution means what SCOTUS says it means, which is not necessarily the case (unless you adhere to judicial supremacy, which I don't). An executive's obligation to act the way the judiciary says it must has to come from something else--a judgment.

Posted by: Howard Wasserman | Jan 7, 2016 10:29:48 AM

Whether the SCOTUS decision is "binding" is irrelevant. The Supremacy Clause states quite plainly, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby..." Not to mention the fact that the SCOTUS decision rests on the Due Process clause of the 14th Amendment which also limits the powers of the states. The Constitution is what is "binding" in this case, the previously mentioned injunction not withstanding.

Posted by: anon | Jan 7, 2016 9:53:52 AM

Sam: Yep. And damages. The plaintiffs easily could show that the probate judges are not granting licenses on Moore's order. And since Obergefell clearly establishes the right, Moore should not be able to claim qualified immunity.

Posted by: Howard Wasserman | Jan 6, 2016 10:44:48 PM

Chris Geidner might come off as a bit of a goofball at times but the guy has an impressive legal resume to go along with his press bona fides.


Posted by: Joe | Jan 6, 2016 9:49:31 PM

It seems to me it's now remarkably easy to subject Moore to the Strawser injunction, either by adding him as a defendant or just by including him under FRCP 65 as acting in concert with the probate judges. So Moore's order could ensure that this dispute reaches a conclusion more quickly. I agree with Marty's Balkinization post that it's inexcusable that the AL Supreme Court didn't withdraw its order against the probate judges months ago.

Posted by: Sam Bagenstos | Jan 6, 2016 9:02:18 PM

Howard: It's not the only thing Moore ignored. Judge Granade issued an order on July 1 formally clarifying that the preliminary injunction was by then in effect and binding on all members of the class--i.e., all probate judges. One of those judges--Judge Tim Russell--then appealed the federal injunction to the Eleventh Circuit. On October 20, the court of appeals (Tjoflat, Hull and Wilson) issued an opinion (http://files.eqcf.org/wp-content/uploads/2015/10/18647709-ORDER.pdf) holding that Obergefell "abrogated" the state supreme court order, and therefore summarily affirmed Judge Granade's preliminary injunction.

I'm not sure the court of appeals was correct that Obergefell "abrogated" the state supreme court's order in any legal sense. But the federal injunction is clearly in place. And there's no excuse for the fact that the Alabama Supreme Court has not yet ruled on the continuing effect of its own injunction. (That court invited briefs on the question last summer, and those briefs appear to have been filed by September.) At best, the probate judges are subject to conflicting injunctions, one of which has been affirmed by the federal court of appeals, and the other of which has no business being held in limbo--indeed, the state supreme court itself is arguably in violation of the Constitution in not quashing its own injunction.

Posted by: Marty Lederman | Jan 6, 2016 5:54:31 PM

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