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Birmingham Bar Association Bulletin | Spring 2015

January 26th, Granade ruled in favor of a second set of plaintiffs, Mobile couple James Strawser and John Humphrey, who had represented themselves in pursuit of a similar claim to be issued an Alabama marriage license, citing Humphrey’s health issues and benefits for which the ban makes them currently unavailable among the harms to them resulting from the ban. Granade imposed the same stay for that case. On January 28th, Granade granted the Plaintiffs’ request to clarify her judgment with an Order quoting the Northern District of Florida’s order regarding “an almost identical issue” by pointing out that “the Constitution requires the Clerk to issue marriage licenses” rather than any injunctive order of that Court, and that “the Clerk’s obligation to follow the law arises from other sources” as well. That Order also noted that “history records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law,” and that clerks who choose not to follow the ruling should note “the governing statutes and rules of procedure which allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, and allow successful plaintiffs to recover costs and attorney’s fees.” Following this Order, the Alabama Probate Judges Association amended its position on January 28th to acknowledge that “on the occasion the stay is lifted, same sex couples may apply for marriage licenses” in Alabama. Also on January 28th, the Southern Poverty Law Center filed an ethics complaint against Roy Moore asserting that his public commentary on the pending Searcy/McKeand case and others like it via letter to the Governor, and his stated refusal to comply with the Court’s order and encouragement of the same among other state officials, violate judicial canons. The complaint referenced Moore’s 2003 removal from the bench for refusing to comply with a federal order to remove the Ten Commandments monument from the state judicial building, suggesting that “even if Moore isn’t a student of history, you would think he would be a student of his own history.” Following Moore’s comments on a talk show January Legislation 29th acknowledging that a U.S. Supreme Court ruling that the state’s ban on same-sex marriage was unconstitutional would be binding on state courts, but stating that what he would do following such a ruling is “a very hard decision,” the Southern Poverty Law Center filed a supplemented complaint. Moore issued an advisory letter to the “Probate Judges of Alabama” regarding “Federal Intrusion into State Sovereignty” on February 3rd, reiterating his opinion that Granade’s decision is without authority, urging judges “to uphold and support the Alabama Constitution and the Constitution of the United States to the best of their ability,” attaching a 27-page legal memorandum “to provide guidance . . . as to their duties under Alabama’s Sanctity of Marriage Amendment,” and asserting that “the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.” That same day, the Eleventh Circuit denied the Attorney General’s motion for a stay of the Southern District’s decision, though Granade denied the petitions of Searcy and McKeand and of Strawser and Humphrey (through new counsel of The National Center for Lesbian Rights, and Heather Fann of Boyd, Fernambucq, Dunn & Fann of Birmingham) to lift the stay, “to allow the Probate Courts of this state to be completely prepared for compliance with the rulings in this case.” The Attorney General, along with Governor Bentley, also moved on February 3rd to request that the U.S. Supreme Court intervene to stay Granade’s January 23rd ruling, which was denied on the morning of January 9, 2015, in a 7-2 ruling (Justices Thomas and Scalia dissenting, and expressing concern that such a ruling signals that to come on the merits of the cases currently before the Court), Continued on page 20 Birmingham Bar Bulletin/ Spring 2015 15


Birmingham Bar Association Bulletin | Spring 2015
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