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Birmingham Bar Association Bulletin | Spring 2015

Legislation Continued from page 15 Federal Court Rules Alabama’s Ban on Gay Marriage the day the Southern District’s stay was lifted. On January 13th, the United States Supreme Court had granted certiorari on what is now a circuit split on the issue of same-sex marriage (the Sixth Circuit having upheld bans while others found them unconstitutional); argument on the issues of whether the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples and whether it requires states to recognize same-sex marriages from other states is scheduled for two and a half hours in April, and a ruling is expected by the end of the term in late June of this year. Th e Supreme Court’s ruling followed by only hours an Administrative Order of Chief Justice Roy Moore late Sunday evening prior to the stay being lifted, which specifi cally instructed that “no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with” the State’s ban on same-sex marriage. Several Alabama counties, Jeff erson County included, proceeded with issuance of samesex marriage licenses on Monday morning February 9th; most, however, either refused to issue licenses to same-sex couples or, in the case of Mobile County, among others, ceased issuing licenses altogether. In Mobile County, attorneys for the Searcy case fi led a new action on behalf of several new plaintiff s, joining Chief Justice Moore and Governor Bentley as defendants in addition to Mobile County Probate Judge Don Davis, requesting a fi nding that the probate judge was in contempt. Th at motion was denied; Judge Granade cited service issues, lack of proper evidence to support a temporary restraining order, and Judge Davis not having been a party to the previous action subject to a contempt fi nding. Attorneys for Strawser, with additional counsel from the ACLU of Alabama, added three sets of plaintiff s who had also been denied licenses in Mobile County and requested injunctive relief on Monday evening, which hearing was set for Th ursday, February 12th at 1:00 p.m., and that same day Granade issued an order reiterating the earlier ruling that the State’s same-sex marriage ban was unconstitutional and declaring that “Judge Davis may not deny Plaintiff s a license on the ground that Plaintiff s constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage.” Th e Mobile County Probate Court had fi led an in rem action with the Alabama Supreme Court requesting guidance from the full court as to the authority of Judge Moore’s order Monday, and subsequently amended that request, but that petition was dismissed because it was “in substance . . . a request for an advisory opinion,” as the Supreme Court is authorized “to address requests for advisory opinions from only the Governor or the Legislature.” Despite Moore’s public request for enforcement of his Order by Governor Bentley, Bentley publicly stated that though he believed marriage was between one man and one woman, he did not intend to take action against probate judges for issuing or failing to issue licenses to same-sex couples. On February 11th, the Alabama Policy Institute and the Alabama Citizens Action Program fi led an emergency petition for writ of mandamus against Alan King (Jeff erson County), Robert Martin (Chilton County), Tommy Ragland (Madison County), and Steven Reed (Montgomery County), and all other “John Doe” Alabama probate judges issuing same-sex marriage licenses. Justices Shaw and Main dissented from the order requiring a response from the probate judges, both calling the petition “unusual” and citing procedural and standing issues. Responses are due February 18th from the probate judges “addressing issues raised by the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition,” and replies by petitioners on February 20th. Late Sunday night, February 15th, Judge Alan King of Jeff erson County fi led to intervene in the Strawser case, alleging that the mandamus petitioners, “acting in concert with and on behalf of the State of Alabama, are improperly attempting to seek a further stay” of the federal court’s orders from the state’s Supreme Court, and “doing so in violation of the injunctions issued by the federal Court.” Following the February 12th ruling, the majority of Alabama counties began issuing same-sex marriage licenses -- approximately 50 of 67 -- with some issuing no licenses at all and a handful issuing only to opposite-sex couples. Th e legalization of same-sex marriage allows couples to pursue not only marriage licenses, but recognition of marriages for purposes of divorce and step-parent adoption, and for other legal matters such as estate and personal injury cases. Alabama is the 37th state in the United States to recognize same-sex marriage. G 20 Birmingham Bar Association


Birmingham Bar Association Bulletin | Spring 2015
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