In case you're wondering what the hell is going on with Judge Roy Moore ordering Alabama probate judges not to issue same-sex marriage licenses

Marty Lederman

You've probably read that Alabama Chief Justice Roy Moore today ordered all probate judges in Alabama to refrain from issuing marriage licenses to same-sex couples, even though the U.S. Supreme Court held on June 26, in Obergefell v. Hodges, that the Fourteenth Amendment guarantees such couples a right to marry.  No doubt you're wondering:  How can this be?

What most of the initial news stories don't explain--not that it makes Judge Moore's actions any more defensible--is that the probate judges are not (directly) subject to the order of the U.S. Supreme Court in Obergefell; but they are currently subject to no fewer than three orders:  two conflicting court orders, and now Judge Moore's order, which, believe it or not, is not a judicial order.  [UPDATE:  Chris Geidner, not surprisingly, offered an accurate, early report.  See also Howard Wasserman for more.  Both of their posts are, I believe, consistent with this one.]

As I understand it, the basic gist is the following:

1.  In Alabama, state probate judges are the officials who grant marriage licenses.

2.  On March 3, 2015, before the decision in Obergefell, the Alabama Supreme Court issued an order, applicable to all state probate judges but one (Don Davis), enjoining them from issuing same-sex marriage licenses.  [A week later, the Alabama Supreme Court added Judge Davis, as well, to the class of judges subject to the injunction.]

3.  Meanwhile, on May 21, 2015, a federal district judge, Judge Granade, issued a competing preliminary injunction order in a class action, requiring all those same probate judges to issue same-sex marriage licenses; but she stayed her order pending the Court's decision in Obergefell.

4.  On July 1, after the Court decided Obergefell, federal Judge Granade issued an order clarifying that the stay was lifted and her classwide p.i. order had gone into effect -- thereby creating competing, inconsistent orders to the Alabama probate judges from the state and federal courts.

5.  Meanwhile, over in the state court system, the Alabama Supreme Court invited briefing on Obergefell's effect on its own contrary order.  Briefs were filed as of September.

6.  One probate judge--Judge Tim Russell--then appealed the federal judge's injunction to the U.S. Court of Appeals for the Eleventh Circuit, arguing that he was between a rock and a hard place, i.e., inconsistent state and federal court orders.

7.   On October 20, the court of appeals (Judges Tjoflat, Hull and Wilson) issued an opinion in Judge Russell's appeal, holding that Obergefell "abrogated" the state supreme court order, and therefore summarily affirming federal Judge Granade's preliminary injunction requiring the probate judges to grant same-sex licenses.

8.  I don't think the federal court of appeals was correct that Obergefell of its own accord "abrogated" the Alabama Supreme Court's order in any formal, legal sense.  However, Judge Granade's federal injunction is clearly in place, which the appellate court affirmed.

9.  In the meantime, the state supreme court hasn't done anything in several months with respect to its own contrary order.  There's no excuse for that delay; but there it is.

10.  What are the probate judges to do in light of the two competing, inconsistent judicial orders?  Well, as it happens, under Alabama law the "executive" official who is to make that call, at least in the first instance, is apparently the state Chief Justice -- Roy Moore -- who also acts as "Administrative Head of the Unified Judicial System of Alabama." (I believe Judge Moore recused himself from the Alabama court case because of these dual-hatted roles.)  And today, Moore issued an order that reads as follows:

IT IS ORDERED AND DIRECTED THAT:

Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

(This isn't quite an express order to the probate judges that they must comply with the Alabama Supreme Court order; but surely that is the natural message when he writes that the order remains "in full force and effect.")  Moore does not even mention the fact that the probate judges are subject to a directly contrary federal court order that has been affirmed by the federal court of appeals.

Who's at fault here?

First, the Alabama Supreme Court.  It should have withdrawn its own order against the probate judges within a few minutes after the U.S. Supreme Court decision in Obergefell.  Instead, it has been pondering what to do for over half a year, while its order remains in effect.

Second, Judge Moore.  Faced with competing orders of the state and federal courts, he had to decide which order the probate judges should follow.  (I assume that this is his call under Alabama law; but I don't know that for certain.)  And that decision should be easy:  Judge Granade's preliminary injunction is consistent with Obergefell; the Alabama Supreme Court's injunction is not.  And therefore, if and when push comes to shove, the U.S. Supreme Court will side with Judge Granade and the Court of Appeals for the Eleventh Circuit.  In light of that inevitability, Judge Moore should have ordered the state probate judges to comply with Judge Granade's order, and to ignore the state supreme court injunction.
Posted 6:46 PM by Marty Lederman [link]