February 20, 2015

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The federal judge who’s overseeing two challenges to Alabama’s same-sex marriage ban has just denied a request by Jefferson County Probate Judge Alan King to intervene in Strawser v. Strange. The probate judge had sought to intervene so he could continue to issue marriage licenses to same-sex couples if the Alabama Supreme Court blocks probate judges from doing so. The state supreme court action is still pending.

The judge noted that all of the current Strawser plaintiffs are in Mobile County, and that county is already under a federal order to issue the licenses. The order notes that “Defendant Judge Don Davis faces the same risk of being subjected to conflicting federal and state orders regarding the issuance of marriage licenses to same-sex couples,” and that’s enough to ensure that the position of Probate Judge King is adequately represented in the court.

The court noted that “since relief has already been granted to Plaintiffs against Judge Davis and none of the parties seek anything from Judge King, the court does not find King’s intervention is warranted. At this point in the litigation the addition of Judge King as a party will add nothing to the adjudication of the claims presented and may only serve to complicate the matter. Judge King’s participation in this case is neither necessary nor desired by the parties.”

The decision notes that the actual plaintiffs in the Strawser case have asked for a preliminary injunction that would require Alabama’s attorney general to move to dismiss the Alabama Supreme Court action. Judge King asked for the same relief, so an order on that request could be obtained regardless of the judge’s intervention.

However, in a follow-up order, the judge denied the plaintiffs’ request as well.

Judge Granade expressed “sympathy” for the plaintiffs’ position – stuck between the federal Constitution and a possible order from the Alabama Supreme Court – but her order noted that the plaintiffs have received a federal court order allowing them to be married, and that makes the situation a bit murkier. The court wrote that it’s “unclear” at this point what effect a ruling from the state supreme court would have on the plaintiffs.

The court suggests there’s not enough of a link between the attorney general’s conduct and the state supreme court action: “Plaintiffs present no concrete link between the Attorney General’s inaction and the state court action brought by two private entities. The Attorney General correctly observes that in this stage of the proceedings, the “injunctions forbid the Attorney General to take action; they do not compel action.””

Most importantly, whatever happens in the state supreme court, plaintiff couples can still seek injunctions against their probate judges, requiring the judges to issue them marriage licenses: “Moreover, the Attorney General recognizes “[r]egardless of how the Alabama Supreme Court rules . . ., that ruling should not be an impediment to a person who is denied a marriage license from bringing a lawsuit against the Probate Judge who denied the license.””

That essentially means the state supreme court’s ruling wouldn’t necessarily stop same-sex marriage in Alabama. Couples who are denied licenses could ask to be added to the federal case and then ask for their county’s probate judge to be required to issue licenses.

The take-away is that the Jefferson County Probate Judge is issuing marriage licenses to same-sex couples and is currently not under any state order to refrain from doing so, and that the plaintiffs – same-sex couples – in the Strawser case can’t force the attorney general to dismiss the state supreme court action. Regardless, couples can still sue in federal court and seek intervention in the existing lawsuits.

UPDATE: Shannon Minter from the National Center for Lesbian Rights (NCLR), who is representing the plaintiffs in this case, issued a statement: “While we are disappointed that Judge Granade denied our motion, we are encouraged by her strong affirmation that regardless of how the Alabama Supreme Court rules, her order will continue to bind the Attorney General and Mobile Probate Judge Davis, and that same-sex couples will if necessary be able to bring additional cases requiring other probate judges to comply with the federal Constitution and issue marriage licenses to same-sex couples. We remain optimistic that the Alabama Supreme Court will dismiss the petition and that no further litigation will be required, but we are ready to spring into action and bring any additional litigation necessary to ensure that same-sex couples in Alabama continue to enjoy the freedom to marry and to have their marriages respected by the state. We are confident that any setback, if any occurs, will be temporary. There is no turning back the clock in Alabama.”

UPDATE 2: Replies in the Alabama Supreme Court action were due today, however the private groups who brought the challenge seeking to stop same-sex marriage in the state asked for and got an extension of time to file replies. They’re now due Monday by 10AM.

Thanks to Equality Case Files for these filings

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