Same-sex marriage for Alabama -- but not yet

Same-sex marriage for Alabama -- but not yet
by Lyle Denniston

A federal judge in Mobile ruled on Thursday that same-sex marriage must be available throughout Alabama, for any gay or lesbian couple wishing to apply for a license — but not yet.

U.S. District Judge Callie V.S. Granade simultaneously acted on a statewide basis — to make Alabama the thirty-seventh state where such marriages would be legal — but then put her decision on hold until after the Supreme Court rules on the constitutional issue, probably late next month.

In the meantime, no gay or lesbian couple would be able to get a marriage license in Alabama — first, because the judge’s order is not now binding on the 68 state probate judges who issue such licenses, and, second, because the Alabama Supreme Court has barred all of them from doing so.

For weeks, the potential conflict between Judge Granade in federal court and the Alabama’s highest state court has been deepening, and the actions that Granade took on Thursday could have produced a direct confrontation had she not put the new rulings on hold. She did find in her ruling that the state court’s order to the judges not to issue any licenses did not prevent her from ordering them — in an independent legal proceeding — to do so.

In fact, the judge remarked that her order would have bound all 68 judges immediately, but then her own delay order postponed any such command.

In late January, in a pair of cases, Judge Granade had struck down Alabama’s ban on same-sex marriage. But those rulings each involved only a single couple, so the decisions’ binding effect was very limited. Even so, some probate judges began issuing licenses to gay and lesbian couples based on those rulings, and hundreds of those couples were actually married before the state supreme court stepped in and issued a statewide order against any such licensing, at the request of private groups opposed to such marriages. (No same-sex couples were parties in the state supreme court proceeding.)

In the meantime, lawyers for same-sex couples made a new maneuver in Judge Granade’s court. They sought, under federal court Rule 23, the creation of a statewide class that would include any same-sex couple wishing to marry, with the order to be made binding on all 68 probate judges.

They also asked the judge to issue a statewide order requiring that any member of the class who sought a license be given one by any probate judge in any county.

On Thursday, after weeks of legal maneuvering by both sides, the Mobile judge acted: She did create the class, likely to include 7,000 or more same-sex couples, at least some number of whom — perhaps many — would want to take advantage of the opportunity to wed. She did so in an eighteen-page opinion, finding that the statewide class would satisfy all of the requirements of Rule 23, and so would a class on the other side of all 68 probate judges.

Then, borrowing the reasoning of her January rulings that the Alabama ban was unconstitutional, she issued a fourteen-page opinon extending the order to issue marriage licenses to all counties in the state, for all couples seeking such permission.

That opinion laid out all of her reasoning for the new decision, then concluded with specific orders: once again, striking down the state ban, then barring all 68 judges from enforcing the state ban, and also requiring lawyers for the couples to formally notify the judges of that duty.

If her ruling had stopped at that point, Alabama would have been the latest state where marriage of gays and lesbians had become legal everywhere within its borders. But there was a fourth order, on the last page: “Because the issues raised by this case are subject to an imminent decision by the United States Supreme Court,” her order barring enforcement of the state ban is “stayed until the Supreme Court issues its ruling.”

What would happen to the judge’s new order if the Supreme Court were to find that states have the constitutional authority to refuse to allow same-sex marriages was not mentioned, but the state would almost certainly move immediately in Judge Granade’s court to apply the Supreme Court decision and vacate her rulings.

If the Justices do rule that the right to marry must be open to same-sex couples all across the nation, then Judge Granade’s rulings on Thursday would presumably go into effect very quickly, if not immediately.