Tuesday afternoon United States District Judge Callie V. S. Granade granted the request of four Mobile County same-sex couples to add Mobile County Probate Judge Don Davis as a defendant in a lawsuit in which Judge Granade previously struck down Alabama’s marriage equality ban as violating the federal Constitution. Judge Granade scheduled a hearing for this Thursday, February 12, 2015, at 1:00 p.m. CT in the U.S. Courthouse, Courtroom 2B, 113 St. Joseph Street, Mobile, Alabama 36602.
Late Monday, four same-sex couples who were denied marriage licenses in Mobile earlier in the day filed an emergency motion asking Judge Granade to instruct Davis to begin issuing marriage licenses to same-sex couples as Judge Granade previously ordered.
The Alabama couples are James Strawser and John Humphrey, who previously obtained a ruling from Judge Granade declaring that Alabama’s exclusion of same-sex couples from marriage is unconstitutional, Meredith Miller and Anna Lisa Carmichael, Robert Povilat and Milton Persinger, and Kristy Simmons and Marshay Safford. The couples are represented by the National Center for Lesbian Rights (NCLR), Birmingham attorney Heather Fann, and the ACLU of Alabama.
NCLR Legal Director Shannon P. Minter said, “We are pleased that Judge Granade has agreed with our request that the Mobile County Probate Judge be added to this case as a defendant. In our view, the Probate Judge already should be issuing marriage licenses to same-sex couples given Judge Granade’s earlier ruling that the federal Constitution requires Alabama officials to treat same-sex couples equally. There have been multiple court proceedings in the last few weeks, and the steady trend of those decisions indicates that we are moving quickly toward full marriage equality in Alabama.”
On January 23 and January 26, 2015, Judge Granade issued orders prohibiting Alabama from enforcing its marriage ban in two separate cases filed by Alabama couples. The court temporarily stayed its rulings until Monday morning, when Davis stopped issuing marriage licenses entirely rather than issue licenses to same-sex couples.
The U.S. Supreme Court on Monday declined a request by the Alabama Attorney General to further delay issuance of marriage licenses. Separately, the Supreme Court is expected to decide by the end of June whether four other states – Kentucky, Michigan, Ohio, and Tennessee – may exclude same-sex couples from marriage.
Also on Tuesday, Lambda Legal sent an open letter to the President of the Alabama Probate Judges Association and probate judges of counties that are not issuing licenses to same-sex couples urging them to disregard Alabama Chief Justice Roy Moore’s legally incorrect and unfounded Administrative Order and instead issue marriage licenses to same-sex couples and different-sex couples alike, after the U.S. Supreme Court rejected the state’s request for a stay.
Excerpt of the open letter:
“The source of a chief justice’s authority to issue such administrative orders is the Alabama Supreme Court itself, and the Alabama Supreme Court has made explicitly clear that the actions taken by Chief Justice Moore on February 8th are not within his authority acting alone. James, a case involving Chief Justice Moore himself (then a Circuit Judge), dealt in part with the authority of the Chief Justice to control the conduct of a circuit judge. In that case, the Alabama Supreme Court made clear that the conduct of a circuit judge “cannot be regulated by the Chief Justice, ‘standing alone.’” The Court further held that “action by the Chief Justice is not synonymous with action by the ‘Court’” and that it is a basic “principle of practice and procedure, no appellate pronouncement becomes binding on inferior courts unless it has the concurrence of a majority of the Judges or Justices qualified to decide the cause.” Accordingly, Chief Justice Moore does not have the authority to issue the Administrative Order issued on February 8, 2015.”
“The law is clear – all Chief Justice Moore has done is create chaos and his order is clearly out of bounds,” said Greg Nevins, Counsel at Lambda Legal. The Supreme Court has entertained the state’s request for a stay and rejected it. Same-sex couples and different-sex couples all enjoy the fundamental right to marry, and probate judges should not be interfering with that right by refusing to issue marriage licenses to those constitutionally entitled to obtain them.”