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Alabama’s Unfortunate Marriage Equality Drama

Lots of stuff happening at the Arkansas ledge with constitutional overtones/problems: limiting the power of cities and counties to adopt civil rights ordinances, passing the so-called Conscience Protection Act, separating the King and Lee holidays. But none of this compares with the legal drama in Alabama over same sex marriage.

Quick overview: in late January,, a federal district court judge struck down the Alabama Defense of Marriage Amendment and statute in two separate but related cases. On February 3, Alabama Chief Justice Roy Moore sent a memo to the Probate Judges, who issue marriage licenses in Alabama, explaining that the federal court’s order was not binding precedent and the judges did not have to follow it. On Sunday, February 8, Judge Moore issued an administrative order to the probate judges directing them not to issue any marriage licenses to same sex couples.

Judge Moore is no stranger to defying federal court orders but this situation is different and more complicated. First of all, the federal case is a mess. The original pro se plaintiffs made elementary errors, like trying to sue the state itself. Eventually, this got sorted out but, in the process, a probate judge was dropped as a defendant and it left the Attorney General as the sole defendant. Thus, the court’s injunction orders the AG not to enforce the law but does not order any probate judge to issue the licenses.

But here is the problem. Judge Moore correctly noted that decisions by lower federal courts are not “binding precedent” for state court judges. All that means is that state judges are not required to reach the same decision as a lower federal court. They may do so, however, and they may use the federal decision as “persuasive precedent.” Judge Moore’s order unilaterally prevents probate judges from performing this elementary judicial task.

The real issue here is whether or not Judge Moore’s order is valid under Alabama law. I can’t answer that for sure but I am skeptical. First, he unilaterally declares the resolution of a contested legal question without any case in front of him. Simply put, he can’t do that. Only autocrats can. Second, he stretches his authority for the administration of justice to make a substantive decision on this legal issue. Confusion about a legal decision is not a crisis in the administration of justice. Judge Moore cannot administratively prejudge (bad pun intended) the case. If a state probate judge refuses to issue a license, then that judge can be sued in state court. Judge Moore will have his chance when that case gets to the his court. Until that time, his memo only amounts to an advisory opinion.

The plaintiffs have added a recalcitrant probate judge as a defendant and the federal judge has set a Thursday hearing. If, as everyone expects, she orders the probate judge to issue licenses, then Judge Moore will lose any basis for his resistance.

SCOTUS looks ready to strike down DOMA’s nationwide. Indeed, they sent a clear signal when they refused to stay the order in the Alabama case inciting an angry dissent from Justice Thomas. Thus, All of this makes for good political theater and a cynic might say that was exactly what Judge Moore wanted.

In Arkansas, a federal judge struck down the comparable state ban on same sex marriage but stayed the order. A state case challenging the ban awaits a decision by the Arkansas Supreme Court. If the 8th circuit strikes the law down but the Arkansas Supreme Court upholds it, then state officials will be in a dilemma: which interpretation of the US Constitution should they follow? I think that the state ruling would control until the US Supreme Court resolves the question. Thankfully, they appear poised to do so by late June.

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February 10, 2015   Comments Off