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Friday, March 04, 2016

Alabama Supreme Court dismisses SSM mandamus

The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]

The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court.  All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.

Finally, a quick comment on Justice Shaw's concurrence. He is dubious of departmentalism, which he calls "silly" and "rather nonsensical hairsplitting," since, even if Obergefell is not directly applicable, a later decision applying Obergefell will be. And he is correct in the sense that departmentalism rests on formalism--an executive official can resist Supreme Court precedent until that precedent is quickly applied in a case to which he is a party. At the same time, Shaw unwittingly captures the basic ideas behind what I have been calling "judicial departmentalism"--whatever executive officers can do, lower courts (including state courts) are bound by SCOTUS precedent (whether 5-4 or 9-0, whether the lower-court judges agree with it).

Posted by Howard Wasserman on March 4, 2016 at 03:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I think an update is the best possibility -- a reminder that sometimes we have quick reactions on blogs etc. that later turn out to be somewhat off.

Anyway, did some state supreme court do something akin to this after Loving v. VA or after various other federal court rulings that led to changes in "traditional" marriage in various ways?

Posted by: Joe | Mar 6, 2016 11:42:41 AM

Howard, might I suggest that you delete your original misleading post and just link to the Balkin link, which explains what actually did happen. Thanks!

Posted by: anon | Mar 6, 2016 10:38:48 AM

More here:


Posted by: Marty Lederman | Mar 6, 2016 8:50:35 AM

On a different take: If the "petition" is dismissed, why isn't the interim order, meant to freeze the status quo until disposition of the petition, moot? In which case, there is no reason to formally lift it, although Moore is wrong to say it remains in effect.

Posted by: Howard Wasserman | Mar 5, 2016 7:26:30 AM

Marty: Mea culpa. I wrote this based on news reports and before I had a chance to read the thing and process it well enough to write about it (still haven't done the latter). I also assumed that if the mandamus was gone then so was the preliminary order. Obviously, it's not so clear.

Posted by: Howard Wasserman | Mar 5, 2016 7:20:20 AM

Sorry: Even Judge Don Davis is subject to the March 2015 API injunction, as the court clarified a week later: http://judicial.alabama.gov/docs/sc/SC_ORDER_031015.pdf

Posted by: Marty Lederman | Mar 5, 2016 5:32:45 AM

Why do you say this, Howard?: "The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell."

The Alabama Supreme Court order in AP (March 5, 2015) remains in effect, and it enjoins all the probate judges except for Don Davis. Judge Shaw insists that that order "by its own terms" does not apply to probate judges who are *subsequently* subject to a conflicting federal court order (as all of them now are). But I don't think that's right. The "terms" of the API order apply to all the probate judges who were not *at the time* under a federal court order. It's the *reasoning* of the API order, not its terms, that points to the proper disposition here (namely, to lift the order against all the judges).

In yesterday's case, however, the Justices refused to lift the March 5, 2015 order enjoining all the probate judges (save one), or to do anything, one way or the other, to that API order --an outrageous abdication of responsibility, since it leaves the probate judges (other than Don Davis) subject to inconsistent federal and state court orders. That's why Roy Moore feels free to write that "the certificate of judgment in this case," entered yesterday, "does not disturb the March 2015 orders of this Court." No Justice disagreed with Moore about that conclusion. (Shaw believes that the March 2015 orders ceased applying of their own account when the federal court orders were issued; but I don't think that's right, as explained above.)

What a mess.

Posted by: Marty Lederman | Mar 5, 2016 4:56:48 AM

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