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Birmingham Bar Association Bulletin | Spring 2015

Legislation Heather Fann and Rick Fernambucq, Boyd, Fernambucq, Dunn & Fann Federal Court Rules Alabama’s Ban on Gay Marriage On Friday, January 23, 2015, United States District Judge Callie Granade granted summary judgment to Mobile couple Cari Searcy and Kimberly McKeand in their challenge of Alabama’s Sanctity of Marriage Amendment and Marriage Protection Act, ruling both laws unconstitutional under the Equal Protection and Due Process clauses of the U.S. Constitution’s Fourteenth Amendment. Searcy and McKeand, represented by Christine Hernandez and David Kennedy of Mobile, sought recognition of their legal marriage in California, and Searcy’s adoption as a step-parent of McKeand’s 8-year-old biological son. Th e Alabama Court of Civil Appeals had affi rmed the Mobile County Probate Court’s denial of Searcy’s adoption petition on appeal. Luther Strange, in his capacity as Alabama’s Attorney General, defended the State’s gay marriage bans, arguing that the State has a legitimate interest in protecting ties between children and their biological parents (“By recognizing and regulating conjugal marriage, Alabama makes it more likely that children will be raised by the people most likely to love them and care for them: their biological parents.”), and asking that the Court “permit the healthy debate on the nature of marriage to continue in Alabama.” Granade rejected that argument, fi nding that the State “fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote,” and asserting that “if anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. . . because it denies the families of . . . children of homosexuals a panoply of benefi ts that the State and the federal government off er to families who are legally wed.” Granade quoted the U.S. Supreme Court’s 2013 decision in United States v. Windsor (133 S.Ct. 2675), stating that “such a law ‘humiliates thousands of children now being raised by same-sex couples’” in addition to “bringing fi nancial harm” to them. Th e decision enjoined Strange from enforcing the laws, and was immediately met by public opposition from the State judiciary. Alabama Chief Supreme Court Justice Roy Moore sent a letter on Supreme Court letterhead to Robert Bentley on January 27th questioning the federal court’s authority over family law matters and state courts generally, and the Alabama Probate Judges Association held a press conference the Sunday following the decision to fi eld questions and clarify its publicly issued statement the previous day suggesting that the decision applied only to the named plaintiff s of the action and did not bind probate courts or their clerks -- as they were not named defendants in the suit -- to issue marriage licenses to same-sex couples. Th ough probate judges in Montgomery and Jeff erson County indicated readiness to issue marriage licenses to same-sex couples the Monday morning following the decision, Granade, despite rejecting each of the prongs of his argument in favor of it, granted Strange a 14-day stay to pursue relief from the Eleventh Circuit Sunday evening, marking February 9th as the likely day gay marriage would become legally recognized in Alabama. On Monday, 14 Birmingham Bar Association


Birmingham Bar Association Bulletin | Spring 2015
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