Brian Lyman

Montgomery Advertiser

Nearly a year after being filed, a Montgomery man's challenge to Alabama's ban on same-sex marriage is still pending before a federal judge.

The lawsuit brought by Paul Hard, a professor at Auburn Montgomery, seeks to strike down the state's 2006 constitutional amendment forbidding those unions, but has also exposed tense relationships within the extended family. The mother of Hard's husband has joined the state in opposition to the lawsuit.

"On a personal level, he is looking for formal recognition from the state where he grew up and has flourished that his marriage was real and lawful, and it should be recognized," said David Dinielli, deputy legal director of the Southern Poverty Law Center, representing Hard in the lawsuit. The SPLC supports same-sex marriage.

In the local suit, known as Hard v. Bentley, both sides have asked William Keith Watkins, Chief Judge of the U.S. District Court for the Middle District of Alabama, to issue summary judgment.

The case has its roots in a tragedy on Interstate 65 three years ago. David Fancher, who married Hard in Massachusetts in May, 2011, was killed in a traffic accident in Autauga County on August 1 of that year after striking an overturned UPS truck in the northbound lanes. A settlement over Fancher's death was reached about two months ago, according to Dinielli; the details of the settlement are confidential.

The distribution of the proceeds from the settlement is a major part of Hard's case. As a surviving spouse, Hard would normally get at least a portion of the settlement. However, since Alabama does not recognize same-sex marriages, the funds would be administered by Fancher's mother, Pat.

"These restrictions have no legitimate basis," Hard's initial complaint stated. "They create two, unequal classes of married couples living in the State of Alabama: those married couple who enjoy all the protections afforded to people who are married . . . and those married couples, like Paul and David, who do not."

Hard is seeking to be declared a surviving spouse and to have his named entered as such on Fancher's death certificate.

The state opposes the lawsuit. Pat Fancher, David Fancher's mother, has joined the case on the state's side, saying in her initial motion that Hand had sought to prohibit her from receiving a portion of the estate. In a brief filed earlier this year, Fancher said she and the Governor of Alabama had interests "that are similar but far from identical."

"The Governor is primarily concerned with the defense of the Alabama state constitutional provision and state statute," Fancher's motion to intervene stated. "Ms. Fancher shares that concern and is deeply disturbed that the death of her son David, whom she deeply loved and with whom she had a good relationship, is being used by Plaintiff Paul Hard to advance the cause of same-sex marriage which she strongly opposes."

Fancher is being represented by the Foundation for Moral Law, a conservative organization founded by Alabama Chief Justice Roy Moore that opposes same-sex marriage. Matt Kidd, the executive director of the organization, said in an interview Monday that Hard did not directly communicate news of her son's death to Pat Fancher.

"She found out through Facebook that her son had died, which tells you something about Mr. Hard's willingness to communicate with the family," Kidd said. "I don't think he's been really willing to reach out to the family in any form."

Dinielli said Hard had been "unbelievably respectful to everyone throughout this, especially the family members who in my view have not behaved humanely to him."

The state first passed a law in 1998 banning same-sex marriage, then followed it up with an amendment in 2006 that won 81 percent of the vote. Recent polls in Alabama have shown that opposition to same-sex marriage is softening, though a majority still opposes it. State leaders have been more reluctant in recent years to discuss the issue.

Hard's case is one of three in federal courts challenging the state ban on same-sex marriage, all of which were brought by same-sex couples who married outside the state; Hard's suit was filed on Dec. 16 of last year. In May, a couple who married in California in 2008 filed suit in Mobile to overturn the state ban. The following month, a couple who married in Massachusetts earlier this year filed a lawsuit in the U.S. Northern District Court of Alabama seeking to overturn the ban.

The U.S. Supreme Court has not yet directly ruled on the constitutionality of same-sex marriage, or bans on it. In United States v. Windsor, the high court ruled in 2013 that a New York woman who had married her long-time partner in 2007 could claim a tax exemption as a surviving spouse, finding the federal Defense of Marriage Act unconstitutional. Since the Windsor decision, federal courts around the country have struck down state bans on same-sex marriage.

In Mississippi last week, a federal judge found that state's ban on same-sex marriage unconstitutional, though the order has been stayed. The state has appealed the ruling.

"I would say Windsor suggests the decision is going to be left to the states whether they're going to allow marriage or not," Kidd said. "Marriage has always been a state's rights issue."

Dinielli, not surprisingly, sees Windsor differently.

"We think the Supreme Court in that case concluded that it is a violation of the equal protection clause and the due process clause for jursidictions to maintain two classes of marriage: one that it recognizes and one that it doesn't," he said. "It's especially unconstitutional when it's aimed at a particular group, and was meant to express moral disapproval."

Updated at 2:52 p.m. to correct that William Keith Watkins is the presiding judge in the case.