The Alabama marriage mess gets messier (although in practice . . . perhaps not so much)

Marty Lederman

In Alabama, state probate judges issue marriage licenses.  A few weeks back, I explained that those probate judges were subject to three inconsistent orders with respect to whether they should grant marriage licenses to same-sex couples:

(i) a federal district court injunction, which went into effect on July 1, after Obergefell, and was later affirmed by the U.S. Court of Appeals for the Eleventh Circuit, requires the probate judges to issue such licenses;  

(ii) a writ of the Alabama Supreme Court, issued one year ago, on March 3, 2015 [and related writs the Court filed later that month], prohibits those probate judges from issuing such licenses; 

 and

(iii) an order issued on January 6, 2016, by Alabama Chief Justice Roy Moore acting in his capacity as "Administrative Head of the Unified Judicial System of Alabama," purports to "direct" the probate judges that "[u]ntil 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."

Once the U.S. Supreme Court decided Obergefell, the Alabama Supreme Court should simply have withdrawn its own March 2015 writs--in effect, injunctions--against the probate judges, which would have settled the matter and precluded the confusion of these multiple, inconsistent orders.  Instead, the state court invited parties to brief the question of Obergefell's effects on the March 2015 orders.  The parties filed those briefs in September.

Finally, on Friday, the Alabama Supreme Court responded to that briefing by . . . doing nothing to change the status quo.  It merely issued an Order that states, in conclusory fashion: "ORDERED that all pending motions and petitions are DISMISSED."'  The state Supreme Court also issued a Certificate of Judgment Friday, certifying the judgments that it issued last March against the Alabama probate judges.  Those judgments, therefore, apparently continue to apply . . . and they are in direct conflict with the subsequent injunction of the federal district court.*

That explains why Chief Judge Roy Moore felt free to write yesterday, in one of his separate opinions, that "the certificate of judgment in this case . . . does not disturb the March 2015 orders of this Court."

This irresponsible "disposition" by the Alabama Supreme Court--which did not even address Obergefell, let alone explain why its March 2015 orders should remain in place after Obergefell--leaves the Alabama probate judges in a quandary, or at least an unenviable position:  They presumably have a state-law duty to abide by an order of their state Supreme Court.  Yet if they violate the federal court order by refusing to issue licenses to same-sex couples, they will almost surely be held in contempt, and perhaps punished severely (whereas it's not obvious what sanctions, if any, they would suffer if they disobey the Alabama Supreme Court orders).

In his separate opinion on Friday, Justice Greg Shaw reports that "no probate court in this State is currently complying with API [the March 2015 decision of the Alabama Supreme Court] or . . . [Chief Justice Roy Moore]'s January 6 administrative order and issuing government-marriage licenses to opposite-sex couples but not to same-sex couples."  In other words, the probate judges, faced with inconsistent state- and federal-court orders, are quite reasonably abiding by the one that is consistent with the Supreme Court's decision in Obergefell.  This isn't very surprising; and presumably the probate judges will continue to do the right thing, even after Friday's (non)development.  But their job certainly hasn't been made any easier by the inexplicable actions of the Alabama Supreme Court.
                                                            
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* In his separate opinion, Judge Shaw insists that the principal March 2015 order of the Alabama Supreme Court, "by its own terms," does not apply to probate judges who are thereafter subject to a conflicting federal court order (as all of them now are).  I don't think that's a plausible reading, however -- and it's not one that any other member of the Alabama Court endorses.  To be sure, the first API order did not require one particular probate judge (Don Davis) to violate a preexisting federal court order requiring him to grant licenses to four particular named couples.  But the Alabama Supreme Court shortly thereafter made it clear that Judge Davis, like all other probate judges, is otherwise subject to the state court injunction.  And the Court's Certificate of Judgment on Friday certainly appears to confirm that understanding of the Alabama Supreme Court.
Posted 8:30 AM by Marty Lederman [link]