Federal court won't stay Ala. same-sex marriage ruling

Brian Lyman | Montgomery (Ala.) Advertiser

MONTGOMERY, Ala. — A federal appeals court Tuesday denied Alabama's request to stay a lower court's decision striking down the state's same-sex marriage ban.

The ban remained in effect as Alabama Attorney General Luther Strange appealed the ruling to the U.S. Supreme Court, and the federal judge who struck down the ruling declined to lift a stay of her order until Feb. 9.

U.S. District Judge Ginny Granade struck down the state's 1998 law and 2006 constitutional amendment banning the practice in two separate rulings on Jan. 23 and Jan. 26, but temporarily stayed the ruling to all the state to pursue an appeal. Strange sought a longer stay, arguing that implementing the decision before an expected Supreme Court ruling on the constitutionality of marriage later this year would cause confusion.

The three-judge panel Tuesday did not give a reason for denying the stay.

"We're very pleased with the 11th Circuit's decision," said David Kennedy, an attorney representing Cari Searcy and Kimberly McKeand, the Mobile, Ala., couple at the heart of the case. "We don't believe any Alabamian should be treated in an unequal manner or have their rights denied that are guaranteed by U.S. Constitution."

Christina Hernandez, another attorney for the couple, said her clients were "thrilled" by the 11th Circuit's ruling. Both attorneys filed a motion Tuesday asking Granade to immediately lift the stay, but Granade denied the request.

"If the Supreme Court denies a stay or does not rule before February 9, 2015, this court's stay will still remain in place until that date to allow the Probate Courts of this state to be completely prepared for compliance with the rulings in this case," she wrote.

Strange said in a statement he was "disappointed" with the appellate court's decision.

"The confusion that has been created by the District Court's ruling could linger for months until the U.S. Supreme Court resolves this issue once and for all," the statement said.

Strange's petition goes first to Justice Clarence Thomas, who is the justice assigned to hear petitions from Alabama, Georgia and Florida. Thomas can either rule on Strange's request himself or refer it to the full court. Thomas or the court would grant the stay if it's likely that at least four justices might want to review the entire case on its merits, or if there will be irreparable harm if the stay is denied.

There are other possibilities. Thomas could deny Strange's request without comment, at which point Strange could petition the other justices. Thomas also could ask same-sex marriage advocates to respond before he rules on Strange's petition. If Thomas grants Strange's request for a stay, a written order would probably explain how long it would stay in effect.

The 11th Circuit Court of Appeals had previously declined to intervene when Florida's ban on same-sex marriage was struck down last year. If the U.S. Supreme Court rejects Strange's petition, Alabama will become the 37th state where same-sex marriage is legal.

The Williams Institute, a think tank at the UCLA School Law, estimates there are 6,000 cohabiting same-sex couples in Alabama, of whom some 3,300 could get married in the next three years.

Searcy and McKeand, who were married in California, wanted Searcy to adopt McKeand's 8-year-old son. Their adoption petition was denied by the Mobile County Probate Court, which cited the ban. Searcy and McKeand sued, saying the ban denied them their equal protection and due process rights under the 14th Amendment. Strange argued the state had a compelling interest in ensuring children were united with their biological parents.

Granade disagreed, writing the state failed to show any "rational, much less compelling" link between prohibiting same-sex marriage and having more children raised in "the biological family structure the state wishes to promote."

"The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children," wrote Granade, who was nominated to the federal bench by former president George W. Bush, a Republican, in 2001.

Attorneys for Alabama Gov. Robert Bentley filed an amicus brief before the 11th Circuit last week, which argued that Granade would have to define what marriage is in the wake of her decision.

In a statement, Bentley said he was "disappointed" with the decision and supported the attorney general's appeal.

The Human Rights Campaign, a LGBT rights group that is waging a campaign to extend state discrimination protections to LGBT people, welcomed the ruling.

"The time has come for loving and committed couples from Florence and Huntsville to the Gulf Coast to be able to marry in the state they call home," HRC Alabama State Director Ashley Jackson said in a statement.