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________________________________________________________________________
EMERGENCY MOTION FOR STAY
________________________________________________________________________
Court the unprecedented, historic and yet difficult position that Mobile Countys Judge of
Probate, Don Davis, is faced with. This Court has issued certain specific Orders regarding
same-sex marriages in Alabama. At the same time, the Alabama Supreme Court has
issued what appears to be a conflicting Order, placing Judge Davis in the unenviable
position of trying to comply with two conflicting Orders at the same time. Judge Davis
has never publically stated his personal opinion on the important issues before both this
Court and the Alabama Supreme Court, and has remained neutral and fair to all parties.
However, the recent opinion and Order from the Alabama Supreme Court has placed
Judge Davis in the position of having to ask this Court to stay its Strawser Order of
February 12, 2015 (Doc. 55), and to move the Alabama Supreme Court for an extension
of time to respond to that Court. Therefore, Judge Davis difficult position is detailed
further below in support of his Emergency Motion for a Stay in this Court.
ARGUMENT
2.
Federal Rule of Procedure 62(b) provides for issuance of a stay pending the
disposition of a motion, and states that the court may stay the execution of a judgment-or any proceedings to enforce it--pending disposition of any of the following motions: . . .
(4) under Rule 60, for relief from a judgment or order. Fed. R. Civ. P. 62(b)(4).
3.
requests that this Court modify the Order (Doc. 55) as allowed under Federal Rule of
Procedure 60(b). Although Rule 65 does not speak of modification or vacation of
injunctions, Rule 60(b) provides that: On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding for the
following reasons: . . . (5) applying it prospectively is no longer equitable. 2961
2
Modification of Injunctions, 11A Fed. Prac. & Proc. Civ. 2961 (3d ed.), Fed. R. Civ. P.
65, Fed. R. Civ. P. 60(b).
4.
to modify or vacate a final decree, and this includes injunctive relief. The three
traditional reasons for ordering the modification or vacation of an injunction are (1)
changes in operative facts, (2) changes in the relevant decisional law, and (3) changes in
any applicable statutory law. 2961 Modification of Injunctions, 11A Fed. Prac. &
Proc. Civ. 2961 (3d ed.). In addition, although changes in fact or law afford the clearest
bases for altering an injunction, the power of equity has repeatedly been recognized as
extending also to cases where a better appreciation of the facts in light of experience
indicates that the decree is not properly adapted to accomplishing its purposes. Id.
5.
On January 23, 2015, this Court granted summary judgment in the case of
Searcy v. Strange, (Civil Action No. 14-0208-CG-N, Jan. 23, 2015) __ F. Supp. 3d __
(S.D. Ala. 2015) (hereinafter Searcy I) in favor of the Plaintiffs, declaring that
Alabama laws prohibiting same-sex marriage and prohibiting recognition of same-sex
marriages performed legally in other states are unconstitutional (Searcy I, Docs. 53-54).
As part of the judgment entered in Searcy I, this Court enjoined the sole remaining
Defendant, Alabama Attorney General Luther Strange, from enforcing those laws.
(Searcy I, Doc. 54). Judge Davis had previously been dismissed with prejudice from
Searcy I, and the only remaining Defendant at the time of this Courts Order in Searcy I
was the Attorney General.
6.
The Attorney General moved for a stay of the Courts order pending a
ruling by the United States Supreme Court. (Doc. 56). This Court then stayed the Searcy I
order of injunction and judgment for 14 days, until February 9, 2015. (Doc. 59). In
support of its decision, and despite the fact that the Attorney General had not yet filed an
appeal in Searcy I, this Court stated:
In its discretion, however, the court recognizes the value of allowing the
Eleventh Circuit an opportunity to determine whether a stay is appropriate.
Accordingly, although no indefinite stay issues today, the court will allow
the Attorney General time to present his arguments to the Eleventh Circuit
so that the appeals court can decide whether to dissolve or continue the stay
pending appeal (assuming there will be an appeal.)
7.
The Attorney General then filed a motion for stay of the Searcy I order with
the United States Court of Appeals for the 11th Circuit, which was denied. Attorney
General Luther Strange then filed an Application for Stay with the United States Supreme
Court.
8.
Subsequently, the day before the Searcy I stay was set to expire, on
February 8, 2015, the Chief Justice of the Supreme Court of Alabama issued an
Administrative Order that ordered:
Effective immediately, no Probate Judge of the State of Alabama nor any
agent or employee of any Alabama Probate Judge shall issue or recognize a
marriage license that is inconsistent with Article 1, Section 36.03, of the
Alabama Constitution or 30 1 19, Ala. Code 1975.
9.
Court refused to stay the order of this Court in Searcy I. However, the facts have changed
since the above requests for stay described above were denied in Searcy I. In fact, the
confusion has continued to increase from the time of the issuance of the first Searcy I
4
Davis was placed in a potential conflict between the Order of this Court and the Order of
the Chief Justice of the Alabama Supreme Court, who, by authority of his office, is also
the chief administrative officer of the State of Alabama Judicial System. As stated above,
Judge Davis had previously been dismissed with prejudice from Searcy I, and the only
remaining Defendant at the time of this Courts Order in Searcy I was the Attorney
General.
11.
Although Judge Davis was not a party to this Court's Order in Searcy I,
Judge Davis recognized the potential conflicting authority which confronted his office.
Thus, on February 9, 2015, due to the potentially conflicting orders of this Court and the
Chief Justice of the Alabama Supreme Court, Judge Davis closed the office which issues
marriage licenses in Mobile County until this conflict was resolved.
12.
Upon realizing that Judge Davis had closed the marriage license office, the
Plaintiffs in Searcy I filed a Motion for Contempt on the afternoon of February 9, 2015.
On the same day, this Court denied Plaintiffs Motion for Contempt against Judge Davis
(Searcy I, Doc. 72), stating in part:
After reviewing the Plaintiffs motion, the court finds that Plaintiffs have
not shown that Davis has failed to comply with this courts order. On
January 23, 2015, this court declared that ALA. CONST. ART. I, 36.03
(2006) and ALA. CODE 1975 30-1-19 are unconstitutional and enjoined
defendant Luther Strange, in his capacity as Attorney General for the State
of Alabama, from enforcing those laws. (Doc. 54). Upon motion by the
Plaintiffs, this court further clarified the January 23, 2015 order stating that:
[A] clerk who chooses not to follow the ruling should take
5
Judge Davis then filed an In Rem action in the Alabama Supreme Court to
address the potential conflict between the Administrative Order entered by Chief Justice
Moore and this Courts Orders. This In Rem action focused on whether Chief Justice
Moores Administrative Order was still valid after the U.S. Supreme Court ruling
denying the Attorney Generals request for a stay of Searcy Is Order. Judge Davis set out
in the In Rem action that if the Alabama Supreme Court failed to address the
Administrative Order that he would abide by the ruling of the U.S. District Court for the
Southern District of Alabama.
14.
dismissing the In Rem action regarding the Administrative Order on the basis that the
petition filed by Judge Davis was an impermissible request for an advisory opinion.
6
15.
to resolve the potential conflict between the Administrative Order and the Order of this
Court in Searcy I did not resolve the issue.
16.
Judge Davis closing the Mobile County Probate Courts marriage license office, was
further intensified when a Mandamus Petition was filed by the Alabama Policy Institute
and Alabama Citizens Action Program against all Alabama Probate Judges, some of
which had issued marriage licenses to same sex couples after this Courts Order (Doc.
55) in this case. Judge Davis previously submitted this material for the consideration of
this Court, as the documents showed the unique issues faced by Judge Davis at that point
in time and related to the conflicts of authority which he and the other probate judges in
this state potentially faced.
17.
Two days later, a hearing was then held on February 12, 2015, on the
Strawser Plaintiffs Motion for Preliminary Injunction. This Court granted Plaintiffs
7
Judge Davis then complied with this Courts order in Strawser, and all of
the Strawser Plaintiffs have since received marriage licenses pursuant to this Courts
injunction.
20.
Since the time of this Courts first order with respect to same-sex marriage
in Searcy I, and this Courts Order granting the Plaintiffs Motion for a Preliminary
Injunction against Judge Davis in Strawser (Doc. 55), Judge Davis has been at the center
of statewide confusion. Judge Davis continues to be subject to conflicting authority. The
issue continues to be litigated and new lawsuits are brought in this Court and the
Alabama Supreme Court. Moreover, the facts and circumstances surrounding the issues
have changed greatly with the addition of other orders, in front of this Court, and other
federal and state courts, from the time of this Courts first order in Searcy I and the more
recent Order (Doc. 55) involving Judge Davis in this case.
21.
For example, on February 24, 2015, Plaintiff Searcy filed another lawsuit
against Judge Davis with respect to her pending adoption petition, claiming violation of
constitutional rights and seeking money damages, against the judge in his official and
individual capacity under 42 U.S.C. 1983 and 1988. See Searcy v. Davis (Civil Action
No. 15-0104-CG-N, Jan. 23, 2015) __ F. Supp. 3d __ (S.D. Ala. 2015) (Searcy II).
Judge Davis has filed a Motion to Dismiss all claims in Searcy II, and this Court stayed
the hearing on the preliminary injunctive relief requested in Searcy II until after the Court
hears Judge Davis Motion to Dismiss.
22.
Upon review of the extensive and complicated history of the same sex
marriage issues that are, even now, still pending in front of this Court, it is clear that
Judge Davis has been put in an extremely difficult position that is now forcing him to
choose between potentially contradictory orders issued by this Court and the Alabama
Supreme Court. The Alabama Supreme Court highlighted the dilemma facing Judge
9
Davis when, despite the fact he is directly subject to this Courts order in Strawser, the
Alabama Supreme Court stated the Judge Davis is directed to advise this Court, by letter
brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by
any existing federal court order regarding the issuance of any marriage license other than
the four marriage licenses he was ordered to issue in Strawser.1
24.
Order from the Alabama Supreme Court, and potentially subject to conflicting
unprecedented and historic Orders from this Court.
25.
follow the law, Judge Davis is sending an emergency request for an Advisory Opinion to
the Alabama Judicial Inquiry Commission. Judge Davis asserts that this Courts Orders,
when read in conjunction with the Alabama Supreme Courts Order, as well as
anticipated future Orders of both Courts, have raised issues concerning the proper ethical
and legal course of action for a judge faced with Judge Davis current unprecedented
dilemma. Therefore, Judge Davis requests that this Court stay its Strawser Order (Doc.
55) until such time as the Judicial Inquiry Commission has either stated an opinion, or
refused to so state its opinion.
26.
In addition to the confusion in Alabama, the law across the United States on
the issue of same-sex marriage remains unestablished and continues to change rapidly.
The approach of our judicial systems across the United States has been inconsistent when
1
Judge Davis is filing simultaneously with this Motion, through undersigned counsel, a separate Motion with the
Alabama Supreme Court, asking for an extension of time to respond to that Courts Order of March 3, 2015, to file a
letter brief with that Court explaining whether Judge Davis is currently subject to a federal order from this Court. A
copy of the Motion is attached.
10
it comes to same-sex marriage, and many of the various courts that have ruled on the
validity of same-sex marriages have taken polar opposite views. There are cases
involving the validity of same-sex marriages currently pending in most state and federal
appellate courts serving the State of Alabama, i.e., the United States Court of Appeals for
the 11th Circuit, the United States Supreme Court and the Alabama Supreme Court, as
well as in this Honorable Court.
27.
authorities that Judge Davis currently faces could be avoided if this Court chooses to stay
its previous order in Strawser until after a ruling by the United States Supreme Court.
The issue of same-sex marriage will be heard this term by the United States Supreme
Court, which will resolve the issues on a nation-wide basis. See James v. Hodges,
Supreme Court No. 14-556, Order dated January 16, 2015; see also cases 14-562, 14-571,
and 14-574. This Court noted, in footnote one of its order in Searcy I, that [t]he
questions raised in this lawsuit will thus be definitively decided by the end of the current
Supreme Court term, regardless of todays holding by this court. (Searcy I, Doc. 53).
The Alabama Supreme Court Order stated that the United States Supreme Court is
expected to rule on this issue by June of this year which is less than three months (3)
from the date of this filing - meaning a stay of this Courts order in Strawser would only
be necessary for a short period of time.
28.
complied with this Courts injunction and relief sought by the Plaintiffs in Strawser. The
Plaintiffs in Strawser have all been provided marriage licenses. As the Plaintiffs have
11
already received the specific relief they requested against Judge Davis, they would not be
harmed by this Courts decision to stay its order against Judge Davis until the United
States Supreme Court rules and finally clears up this issue. No other aggrieved parties are
currently before this Court.
29.
For the foregoing reasons, and because of the continually changing nature
of the Orders issued to Judge Davis, Judge Davis respectfully requests that this
Honorable Court enter an order staying its previous order in Strawser (Doc. 55) on
Plaintiffs Motion for Preliminary Injunction. A stay will serve the public interest by
putting an end to the current confusion and inconsistency that has resulted in an on-again,
off-again enforcement of marriage laws. As they have received the requested relief, the
Strawser Plaintiffs would not be harmed by issuance of this stay.
WHEREFORE, the Defendant, Don Davis, Judge of Probate of Mobile County, by
and through undersigned counsel, respectfully moves this Honorable Court to issue an
Order staying its order on Plaintiffs Emergency Motion for Preliminary Injunction
and/or Temporary Restraining Order (Doc. 55) until after the U.S. Supreme Court issues
its ruling, and for such further and other relief this Court deems appropriate.
Respectfully submitted,
/s/ Harry V. Satterwhite
HARRY V. SATTERWHITE (Satth4909)
J. MICHAEL DRUHAN, JR. (Druh2816)
Attorneys for the Honorable Don Davis, Judge
of the Probate Court of Mobile County
mike@satterwhitelaw.com
harry@satterwhitelaw.com
12
OF COUNSEL:
SATTERWHITE, DRUHAN, GAILLARD & TYLER, LLC
1325 Dauphin Street
Mobile, Alabama 36604
(251) 432-8120 (phone)
(251) 405-0147 (fax)
harry@satterwhitelaw.com
CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of March 2015, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following:
Attorney General Luther Strange
c/o James W. Davis
c/o Laura E. Howell
Office of the Attorney General
State of Alabama
501 Washington Avenue
Montgomery, Alabama 36130-0152
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
13
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
1100 H Street, NW Suite 540
Washington, DC 20005
sminter@nclrights.org
csoll@nclrights.org
Heather Fann
Boyd, Fernambucq, Dunn & Fann, P.C.
3500 Blue Lake Drive, Suite 220
Birmingham, Alabama 35243
hfann@bfattorneys.net
Randall C. Marshall
ACLU Foundation of Alabama
P.O. Box 6179
Montgomery, Alabama 36106-0179
rmarshall@aclyalabama.org
14
REL: 03/03/2015
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
PER CURIAM.
The State of Alabama, on relation of the Alabama Policy
Institute
("API"),
the
Alabama
Citizens
Action
Program
1140460
licenses to same-sex couples.
To the
for
the
solemnization
of
"marriages"),
and
this
chapter
the
Marriage
Protection
Act,"
1140460
between a man and a woman" and that "[n]o marriage license
shall be issued in the State of Alabama to parties of the same
sex."
people
of
Alabama
ratified
an
amendment
to
In 2006, the
the
Alabama
1140460
The circumstances giving rise to this action are the
result of decisions and orders recently issued by the United
States District Court for the Southern District of Alabama
("the federal district court") in Searcy v. Strange, [Civil
Action No. 14-0208-CG-N, Jan. 23, 2015] ___ F. Supp. 3d ___
(S.D. Ala. 2015) ("Searcy I"), and Strawser v. Strange (Civil
Action No. 14-0424-CG-C, Jan. 26, 2015) and a subsequent order
by that court, in each of those cases, refusing to extend a
stay of its initial order pending an appeal.
In its initial decision in Searcy I, the federal district
court issued a "Memorandum Opinion and Order" in which that
1140460
court
came
to
the
conclusion
that
the
"prohibition
and
In
Searcy
I,
the
federal
district
court
The
participation
with
any
of
them"
from
enforcing
"the
1140460
have been altered by the federal district court's decision.
Similarly, consistent with the federal district court's order,
Attorney General Strange has refrained from taking any other
official acts in conflict with those orders.
On January 28, 2015, the federal district court issued an
"Order Clarifying Judgment" in Searcy I, in which it responded
to "statements made to the press by the Alabama Probate Judges
Association"
that
indicated
that,
"despite
[the
federal
1140460
(Quoting Brenner v. Scott (No. 4:14cv107, Jan. 1, 2015) (N.D.
Fla.) (emphasis added).)
The federal district court entered stays of the execution
of its injunctions in Searcy I and Strawser until February 9,
2015, in order to allow Attorney General Strange to seek a
further stay, pending appeal, from the United States Court of
Appeals for the Eleventh Circuit.
On February 9,
Strange v.
It is undisputed that at
1140460
that time respondent probate Judges King, Martin, Ragland, and
Reed began issuing marriage licenses to same-sex couples in
their respective counties.
other
probate
judges
continued
to
issue
marriage
contempt
for
"fail[ing]
to
comply
with
[the
federal
The federal
1140460
Judge Davis as a defendant. On February 12, 2015, the federal
district court entered an order requiring Judge Davis to issue
marriage
licenses
to
each
of
the
four
couples
named
as
an
Order
that
the
Emergency
Petition
for
Writ
of
Mandamus filed on February 11, 2015, with this Court does not
apply to [him] due to changing circumstances that are not
reflected in the Mandamus Petition."
1140460
the plaintiffs [in that case] due to the Alabama laws which
prohibit same-sex marriage."
For his part, Judge Enslen stated in his response that he
"has thus far refused to issue same sex marriage licenses."
Judge Enslen expressly requested that this Court "by any and
all lawful means available to it, protect and defend the
sovereign will of the people of the State of Alabama as
expressed in the Constitution of the State of Alabama, as
amended."
Judge
1140460
Enslen has been realigned as an additional relator seeking an
order from this Court requiring, among other things, that
Alabama probate judges continue to perform their duty in
accordance with Alabama law.
1140460
The relators assert that Alabama's probate judges have a
ministerial duty to follow Alabama law limiting marriage to a
union of one man and one woman.
contend
that
granting
the
relief
the
relators
request
they
likewise
swear
an
oath.
Before
the
federal
to
be
unconstitutional.
See,
e.g.,
Bostic
v.
Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766
F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 (9th
12
1140460
Cir. 2014); and Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014).
The
respondents
however,
following
the
stopped
Searcy
following
and
Alabama
Strawser
law,
decisions.
the
respondents
are
correct
to
now
treat
their
the
dispute
that
in
this
adversarial
Accordingly, in
1140460
I.
Marriage
There is no institution in
It "creat[es] the
morals
and
institution."
civilization
of
people
than
any
other
Id. at 205.
1140460
Id. at 211-12 (quoting Adams v. Palmer, 51 Me. 480, 484-85
(1863)).
"[M]arriage is a contract sui generis, and the
rights, duties, and obligations which arise out of
it, are matters of so much importance to the wellbeing of the State, that they are regulated, not by
private contract, but by the public laws of the
State, which are imperative on all, who are
domiciled within its territory."
Story, supra, at 111.
According to one observer, marriage is a "prepolitical"
"natural institution" "not created by law," but nonetheless
recognized
and
regulated
by
law
in
every
culture
and,
...
"The
[F]amilies
honest
law-abiding,
public-spirited
citizens.
And
(2011)
"conjugal"
(discussing
or
the
"traditional"
15
bases
for
marriage
laws
and
supporting
noting
that
1140460
"[m]arriages ... are a matter of urgent public interest, as
the record of almost every culture attests - worth legally
recognizing and regulating. Societies rely on families, built
on strong marriages, to produce what they need but cannot form
on their own:
marriage is critical.
the
raising
business
children
of
in
working,
whatever
playing,
society,
worshiping,
whatever
and
culture,
these
same
people,
directly
and
through
their
It is they, who on a
daily basis must interact with their fellow man and live out
their
lives
within
that
framework,
16
who
are
the
real
1140460
stakeholders in that framework and in the preservation and
execution of the institutions and laws that form it.
There is
141
describing
Ala.
590,
marriage
as
592,
37
"the
So.
sacred
638,
638-39
relation."
(1904),
Even
in
Windsor v. United
As the United
17
1140460
"It seems fair to conclude that, until recent years,
many
citizens
had
not
even
considered
the
possibility that two persons of the same sex might
aspire to occupy the same status and dignity as that
of a man and woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought
of by most people as essential to the very
definition of that term and to its role and function
throughout the history of civilization."
___ U.S. at ___, 133 S.Ct. at 2689 (also noting that "[t]he
limitation of lawful marriage to heterosexual couples ... for
centuries had been deemed both necessary and fundamental,"
id.).
"It is beyond dispute, as the Court of Appeal
majority in this case persuasively indicated, that
there is no deeply rooted tradition of same-sex
marriage, in the nation or in this state. Precisely
the opposite is true.
The concept of same-sex
marriage was unknown in our distant past, and is
novel in our recent history, because the universally
understood definition of marriage has been the legal
or religious union of a man and a woman."
In re Marriage Cases, 43 Cal. 4th 757, 866, 183 P. 3d 384,
460, 76 Cal. Rptr. 3d 683, 773 (2008) (Baxter, J., concurring
in part and dissenting in part) (footnote omitted).3
3
1140460
From its earliest days, Alabama has recognized so-called
common-law marriages. See, e.g., Campbell's Adm'r v. Gullatt,
43 Ala. 57, 69 (1869) ("[A] marriage good at the common law,
is to be held a valid marriage in this State.").
Also from
meaning
and
significance
of
marriage
as
an
1140460
the truths described above: that marriage, as a union between
one man and one woman, is the fundamental unit of society.
As the Alabama Supreme Court stated in 1870:
"Archbishop Rutherford, one of the most able and
eminent of the commentators on Grotius, has placed
marriage among the natural rights of men.
He
defines it in these words: 'Marriage is a contract
between a man and woman, in which, by their mutual
consent, each acquires a right in the person of the
other, for the purpose of their mutual happiness and
for the production and education of children.
Little, I suppose, need be said in support of this
definition, as nothing is affirmed in it, but what
all writers upon natural law seem to agree in.' Ruthf. Insts. of Nat. Law, p. 162; 1 Bish. on Mar.
and Div. 3, 29; 2 Kent, 74, 75; 6 Bac. Abr. Bouv.
p. 454; 2 Bouv. Law Dict. 12th ed. p. 105.
"Mr. Parsons, referring to the same subject, in
a late work of the highest authority, uses like
language.
He declares that 'the relation of
marriage is founded on the will of God, and the
nature of man; and it is the foundation of all moral
improvement, and all true happiness. No legal topic
surpasses this in importance; and some of the
questions
which
it
suggests
are
of
great
difficulty.' - 2 Pars. on Contr. p. 74."
Goodrich v. Goodrich, 44 Ala. 670, 672-75 (1870).
II.
and
the
Act,
thus
effectively
preventing
the
1140460
probate judges as to their legal duties under the law.
The
Neither order
"wife,"
"spouse,"
"father,"
and
"mother"
so
And,
Confusion reigns.
Many judges,
Others are
1140460
issuing no marriage licenses at all.
practice.
But the problems that lie before us are not limited to
the confusion and disarray in the ministerial act of licensing
marriages.
To
presumes,
accommodates,
or
contemplates
man-woman
the
distribution
of
estates,
the
administration
of
1140460
marriages,
testimonial
privileges
in
both
the
civil
and
1140460
of the matters falling within the jurisdiction of the probate
courts involve rights that are affected by marital status
because of the rights of a spouse or legal preferences given
to a spouse or parent.
Section 12-13-1, Ala. Code 1975, states, in part:
"(b) The probate court shall have original and
general jurisdiction over the following matters:
"(1)
"(2)
The
granting
of
letters
testamentary and of administration and the
repeal or revocation of the same.
"(3) All controversies in relation to
the
right
of
executorship
or
of
administration.
"(4)
The settlement of accounts of
executors and administrators.
"(5) The sale and disposition of the
real and personal property belonging to and
the distribution of intestate's estates.
"(6) The appointment and removal of
guardians for minors and persons of unsound
mind.
"(7)
All controversies as to the
right of guardianship and the settlement of
guardians' accounts.
"(8) The allotment of dower in land
in the cases provided by law."
Without a clear understanding as to whether a marriage
exists, how is a probate court to know whether a same-sex
24
1140460
partner must be served with process as a surviving spouse for
purposes of a petition to probate a deceased partner's will;
how is the probate court to know whether a same-sex partner
has a priority right, as a surviving spouse, to appointment as
administrator of a deceased partner's estate; how is the
probate court to know whether a deceased partner has the right
of a surviving spouse to an intestate share of the estate, or
to
homestead
allowance,
to
exempt
property,
to
family
And marital
1140460
applicability of evidentiary privileges belonging to a spouse.
The Governor of Alabama recently highlighted in an amicus
brief to the United States Court of Appeals for the Eleventh
Circuit
(filed
in
support
of
Attorney
General
Strange's
practices
that
potentially
would
be
affected
by
redefinition of marriage:
"[A]ll of the statutes governing marital and
domestic relations, Ala. Code Title 30, and the
judicial
decisions
interpreting
them;
the
presumption of
paternity, Ala. Code 26-17-204,
and
other
rules
for
establishment
of
the
parent-child relationship, Ala. Code 26-17-201;
laws governing consent to adopt, Ala. Code
26-10A-7(3), and all other laws governing
adoption, Ala. Code Title 26, Chapter 10A;
termination
of
parental
rights,
Ala.
Code
12-15-319; all laws that presuppose different
people
occupying
the
positions
of
'father,'
'mother,' 'husband,' and 'wife,' e.g., Ala. Code
40-7-17; laws governing intestate distribution,
the spousal share, Ala. Code 43-8-41, and the
share of pretermitted children, Ala. Code 43-8-91;
legal protections for non-marital children, Ala.
Code 26-17-202; registration of births, Ala. Code
22-9A-7, J.M.V. v. J.K.H., 149 So. 3d 1100 (Ala.
Civ. App. 2014); conflict-of-interest rules and
other
ethical
standards
prohibiting
marital
relations, Ala. Code 45-28-70(f)(1), Cooner v.
Alabama State, 59 So. 3d 29 (Ala. 2010); and laws
presupposing biological kin relations, Ala. Code
38-12-2.
"This does not include laws governing forms
issued by the State that identify mothers, fathers,
husband, or wife; tax laws; education curricula;
accreditation
standards
for
educational
26
1140460
institutions; licensing standards for professions;
public accommodations rules; religious liberty
protections; health care regulations; and many other
areas of law.
What are children to be taught in
Alabama's schools about the nature of marriage? How
will it be defined in textbooks and other
instructional materials? Will all private schools,
colleges, and universities be required to go along
with the new definition, whatever it is? Will there
be moral or religious exemptions for those who
perceive inherent differences between marital unions
and non-marital unions?"
Every day, more and more purported "marriage licenses"
are being issued to same-sex couples by some of the probate
judges in this State.
licenses and others with whom they interact may be, and
presumably are, relying upon the validity of those licenses in
their personal and business affairs.
similar experience.
The probate judges of this State are members of the
judicial
branch
of
government.
Accepting
the
position
1140460
they function not as courts of inferior jurisdiction, but as
executive ministers of the law, the fact remains that each
probate judge in this State also functions as a "court of
inferior jurisdiction" with responsibility to administer the
law in many types of cases.
Indeed,
given the disparate views of the law held among these judges,
and no doubt the circuit judges as well, we see no way for
there to be uniform and even-handed application of the law
among the circuits of this State unless and until this Court
speaks.
Section 140(b), Ala. Const. 1901, states that this Court
"shall have original jurisdiction ... to issue such remedial
writs or orders as may be necessary to give it general
supervision and control of courts of inferior jurisdiction."
Section 12-2-7(3), Ala. Code 1975, echoes 140, stating that
"[t]he Supreme Court shall have authority ... [t]o issue writs
of injunction, habeas corpus, and such other remedial and
original writs as are necessary to give to it a general
28
1140460
superintendence
and
control
separate
jurisdiction."
of
courts
provision
of
of
inferior
12-2-7,
relation
to
matters
in
which
no
other
court
has
jurisdiction."
Alabama is not alone in its adoption of provisions such
as those cited above. "Constitutional or statutory provisions
expressly granting to various courts superintending control
over inferior tribunals are common, although not universal, in
the
states
of
this
country."
P.V.
Smith,
Annotation,
1140460
being bounded only by the exigencies which call for
its exercise. As new instances of these occur, it
will be found able to cope with them.
And, if
required, the tribunals having authority to exercise
it will, by virtue of it, possess the power to
invent, frame, and formulate new and additional
means, writs, and processes whereby it may be
exerted.'"
112 A.L.R. at 1356 (emphasis added).
Further,
112
1140460
that, in the exercise of its supervisory powers, it
was not tied down by the provisions of the Code of
Practice regarding such writs.
"And in Thomas v. Doughty (1927) 163 La. 213,
111 So. 681, the Supreme Court said: 'This court,
in the exercise of its general supervision and
control over inferior courts, is not tied down by
forms of procedure, and will look at the substance
of the right sought to be vindicated and the need
for speedy relief, rather than to the form in which
such relief is sought.'
"In Dinsmore v. Manchester (1911) 76 N.H. 187,
81 A. 533, in answer to an objection to the scope of
review by the Supreme Court on certiorari under its
statutory general superintendence of all inferior
tribunals, the court said that it was unimportant
that the proceeding was called 'certiorari,' and
that 'the superintending power of the court over
inferior tribunals does not depend upon, and is not
limited by, technical accuracy of designation in
legal forms of action.'
"And in Lowe v. District Ct. (1921) 48 N.D. 1,
181 N.W. 92, the Supreme Court said that the nature
and extent of its superintending control are 'not
reflected by the name of the writ that has been used
for its exercise.'"
112 A.L.R. at 1357-58 (emphasis added).
Lea, 28 Ala. 453, 463 (1856) (Rice, C.J.) (noting that this
Court's appellate jurisdiction and its superintending control
over inferior tribunals are "distinct things, and must not be
confounded" and stating that "'[a] general superintendence and
control of inferior jurisdictions' is, by the constitution,
granted
to
this
court
unconditionally.
31
'Appellate
1140460
jurisdiction' is, by the very terms of the grant, subjected to
'such restrictions and regulations, not repugnant to this
constitution, as may, from time to time, be prescribed by
law.'" (emphasis added)).
"The
generally
accepted
view
is
that
court
will
in
extreme
cases
and
under
unusual
circumstances."
Corp., 242 Ala. 609, 613, 7 So. 2d 303, 306 (1942), this Court
exercised jurisdiction over an original action on the ground
that the Montgomery Circuit Court could not provide the
complete relief necessary, observing that
"the higher court will not take jurisdiction where
the application can be made to a lower court, unless
for
special
reasons
complete
justice
cannot
otherwise be done, as where the case is of more than
ordinary magnitude and importance to prevent a
denial of justice or where no application can be
made to the lower court in time to prevent the
consummation of the alleged wrong."
See also Roe v. Mobile Cnty. Appointment Bd., 676 So. 2d 1206
(Ala. 1995), overruled on other grounds by Williamson v.
Indianapolis Life Ins. Co., 741 So. 2d 1057 (1999), in which
this Court relied upon the unified nature of our court system
and the supervisory authority granted to it under what is now
32
1140460
140 of our constitution to "reach down" and "pull up" to it
the record in a still pending lower court proceeding in order
to create a framework for its assessment of a related matter.
The respondents' briefs focus on Alabama Textile and make
three arguments as to why the holding in that case does not
support jurisdiction in this Court over the present matter.
First, the respondents argue that Alabama Textile involved a
petition for a writ of certiorari rather than a petition for
a writ of mandamus.
determined
that
it
should
exercise
jurisdiction
Parties cannot
1140460
of a formal writ of certiorari is irrelevant here because the
present case comes to us as a petition for a writ of mandamus
or similar relief.
itself,
held
as
it
did,
is
in
itself
any
event,
one
would
expect
that
extraordinary
In addition, as the
1140460
in Ex parte Tubbs, 585 So. 2d 1301, 1302 (Ala. 1991).
See
by
the
respondents
is
that
the
probate
court,
in
distinction
in
Alabama
Textile.
First,
the
It
1140460
It would further appear that the exact nature of the
party before the Court in Alabama Textile was of no moment to
the Court, and would have been of no moment even if examined
more closely, given the provisions of 12-2-7(2).
As noted,
that section states simply that the Supreme Court "shall have
authority ... [t]o exercise original jurisdiction in the issue
and determination of writs of quo warranto and mandamus in
relation to matters in which no other court has jurisdiction."
The text refers not to writs directed to lower "courts" but to
"matters in which no ... court" (other than the Supreme Court)
would have jurisdiction. In addition, of course, there is the
fact that the writ of quo warranto authorized thereby is not
a writ issued only to courts acting as courts, but is in the
normal course a writ issued to individuals purporting to hold
(or exercise the authority of) offices of all sorts in all
three branches of government.
1140460
It is clear that no other court in this State has the
jurisdiction to provide the relief necessary in this most
unusual of cases.
Sys., 336 So. 2d 1376 (Ala. Civ. App. 1976) (explaining that
the Constitution authorized the Legislature to divide the
state into judicial circuits with geographical or territorial
boundaries, that within such boundaries each circuit court
exercises the authority granted it exclusive of other circuit
courts, and therefore the statutory grant to a circuit court
of supervisory power over inferior jurisdictions could be
applied only to such inferior judicial bodies that sat or
acted within the territorial limits of the circuit), cert.
1140460
denied sub nom., Ex parte State ex rel. Baxley, 336 So. 2d
1381 (1976).
Alabama Textile offers a helpful framework for assessing
the necessity of action by this Court under 12-2-7(2) in
this case:
"The necessity is not wholly dependent upon
whether some court inferior to this has the legal
power by certiorari to review the order in question.
See Ex parte Boynton, 44 Ala. 261 [(1870)]. But the
rule observed elsewhere with a similar provision of
the constitution seems to be that the higher court
will not take jurisdiction where the application can
be made to a lower court, unless for special reasons
complete justice cannot otherwise be done, as where
the case is of more than ordinary magnitude and
importance to prevent a denial of justice or where
no application can be made to the lower court in
time to prevent the consummation of the alleged
wrong.
14 Corpus Juris Secundum, Certiorari,
p. 204, 57.
That authority cites Halliday v.
Jacksonville [& Alligator] Plank Road Co., 6 Fla.
304 [(1855)]. The report of that case quotes the
constitution of Florida in identical language as our
section 140, supra, as here material, and observes:
'It is not doubted, but that under the latitude
given by the said proviso, a writ of certiorari will
lie from this Court to any of the inferior
jurisdictions, whenever an appropriate case may be
presented, or it shall become necessary for the
attainment of justice.' [6 Fla. at 304.]
"We do not think that the requirement of the
Constitution that we shall issue such writs only
when necessary to give us a general superintendence
fixes an iron-clad rule that we cannot do so when
another court inferior in grade to us has a like
power.
38
1140460
"While we hold that the Circuit Court of
Montgomery County may review by appropriate remedial
writs the boards and commissions of the State
sitting in Montgomery, we also think that this Court
may do so when in our judgment it is necessary to
afford full relief and do complete justice.
An
exercise of such discretion will receive more
favorable consideration when the interested parties
appear and virtually agree that there is such
necessity by submitting the cause without making the
objection that there is an absence of it. We have
the right to determine whether a necessity exists,
influenced by the magnitude and importance of the
question involved, and the convenience of the
parties in presenting it, rather than in first going
to the Circuit Court of the county where the board
sits.
"On account of the importance of the question
here involved, its state-wide application, the need
of an early decision, the territorially restricted
jurisdiction of the circuit court and the consent of
the parties, we have concluded in the exercise of
our power and discretion to give consideration to
the merits of the question and make decision of it."
242 Ala. at 613-14, 7 So. 2d at 306 (emphasis added).
The "magnitude and importance" of the issue before us is
unparalleled. And the "special reasons" that compel us to act
are unlike any other in the history of our jurisprudence.
Given the textual grant of authority described above, the
sui generis nature of this matter, the unprecedented existing
and potential confusion and disarray among the probate and
other judges of this State, the multiplicity and magnitude of
the substantive issues presented, the resulting need for an
39
1140460
immediate resolution of
matter
to
maintain
and
restore
order
in
the
1140460
stated that a relator has standing to bring a petition for
mandamus or comparable relief, in the name of the State,
seeking to uphold a State statute and to secure performance by
respondents of a duty owed to the public.
"It is now the settled rule in Alabama that a
mandamus proceeding to compel a public officer to
perform a legal duty in which the public has an
interest, as distinguished from an official duty
affecting a private interest merely, is properly
brought in the name of the State on the relation of
one or more persons interested in the performance of
such duty to the public ...."
Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 213, 54 So.
2d 442, 447 (1951); see also Morrison v. Morris, 273 Ala. 390,
392, 141 So. 2d 169, 170 (1962) (same); Homan v. State ex rel.
Smith, 265 Ala. 17, 19, 89 So. 2d 184, 186 (1956) (same).
Indeed, this has been well settled in Alabama for over 100
years:
must
plaintiff."
proceed
in
the
name
of
the
state
as
Court
did
not
fundamentally
change
the
law
of
1140460
Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003).
Rather, the
1140460
"redressed by a favorable decision." Lujan
v. Defenders of Wildlife, 504 U.S. 555,
56061 (1992).'"
904 So. 2d at 1256-57 (emphasis omitted).7
By comparing this Courts own standing formulation from
Jones v. Black, 48 Ala. 540 (1872) (focusing on injury), with
the adopted, three-pronged formulation from Lujan v. Defenders
1140460
of Wildlife, 504 U.S. 555 (1992) (focusing on injury), the
Cedar Bluff Court showed that this was no seismic shift in
Alabama standing law.
To be sure,
the rule is known in the modern law of other states under such
labels
as
the
"public-standing
exception,"
the
"public-
For
"The public
1140460
the enforcement of a public rather than a private right,
continues to be a viable exception to the general standing
requirement."
1140460
the relator have an interest in the outcome of the
litigation different from that of the general
public.
"The
public
standing
doctrine
has
been
recognized in Indiana case law for more than one
hundred and fifty years."
790 N.E.2d at 979-80 (emphasis added; some citations omitted).
More recently, the historical yet still vital "publicinterest standing" was invoked in a 2013 New York mandamus
proceeding:
"However, in matters of great public interest, a
citizen may maintain a mandamus proceeding to compel
a public officer to do his or her duty. The office
which the citizen performs is merely one of
instituting a proceeding for the general benefit,
the only interest necessary is that of the people at
large. One who is a citizen, resident and taxpayer
has standing to bring an Article 78 proceeding for
the performance by officials of their mandatory
duties, even without a personal grievance or a
personal interest in the outcome.
The public
interest standing of a citizen has been extended to
corporations as well as other organizations.
"In fact, as far back as the Nineteenth Century,
the Court of Appeals held, the writ of mandamus may,
in a proper case, and in the absence of an adequate
remedy by action, issue ... on the relation of one,
who, in common with all other citizens, is
interested in having some act done, of a general
public nature, devolving as a duty upon a public
officer or body, who refuse to perform it."
Marone v. Nassau Cnty., 967 N.Y.S.2d 583, 589, 39 Misc. 3d
1034, 1040-41 (Sup. Ct. 2013) (expressing a limitation of the
46
1140460
doctrine to "matters of great public interest" (internal
quotation marks and citations omitted; emphasis added).
Still more recently, the California Court of Appeal
affirmed the vitality of the "public-interest exception":
"It is true that ordinarily the writ of mandate will
be issued only to persons who are beneficially
interested. Yet, in [1945, the California Supreme
Court] recognized an exception to the general rule
where the question is one of public right and the
object of the mandamus is to procure the enforcement
of a public duty, the relator need not show that he
has any legal or special interest in the result,
since it is sufficient that he is interested as a
citizen in having the laws executed and the duty in
question enforced.
The exception promotes the
policy of guaranteeing citizens the opportunity to
ensure that no governmental body impairs or defeats
the purpose of legislation establishing a public
right.
It has often been invoked by California
courts."
Hector F. v. El Centro Elementary Sch. Dist., 173 Cal. Rptr.
3d 413, 418, 227 Cal. App. 4th Supp. 331, 338 (2014) (emphasis
added; internal quotation marks and citations omitted).
The same rule is found in states throughout the nation.
See, e.g., Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657,
660, 755 S.E.2d 683, 687 (2014) ("'Where the question is one
of
[a]
public
right
and
the
object
is
to
procure
the
1140460
executed and the duty in question enforced.'" (quoting Ga.
Code Ann. 9624 (West 2014) (emphasis added)); Protect MI
Constitution v. Secretary of State, 297 Mich. App. 553, 56667, 824 N.W.2d 299, 306 (2012), rev'd on other grounds, 492
Mich. 860, 819 N.W.2d 428 (2012); Progress Ohio.org, Inc. v.
JobsOhio, 973 N.E.2d 307, 313 (Ohio Ct. App. 2012); State ex
rel. Kansas City Power & Light Co. v. McBeth, 322 S.W.3d 525,
531 (Mo. 2010) ("[W]here the duty sought to be enforced is a
simple,
definite
threshold
for
ministerial
standing
is
duty
extremely
imposed
low.");
by
law,
Anzalone
the
v.
should
have
special
interest
in
the
matter."
1140460
(1945) ("We also said in that case that where the question is
one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the relator need not
show that he has any legal or special interest in the result,
it being sufficient that he is interested as a citizen in
having the law executed and the duty in question enforced."
(emphasis added)).8
Alabama's
public-standing
rule,
as
articulated
in
49
1140460
which obviously has standing in its own right.
Like the
requirement
for
general
standing
when
314. But the Court also held that the circuit clerk did not
have
standing
to
seek
mandamus
to
compel
the
sheriffs
In so
50
1140460
the clerk relied in error from the public standing on which
the clerk could have relied:
"We hold that the duty here placed on the
sheriff by [the reporting statute] is a legal duty
in
which
the
public
has
an
interest,
as
distinguished from an official duty affecting a
private interest merely.
Under the settled rule,
petition for mandamus to compel a public officer to
perform such duty is properly brought in the name of
the state on the relation of one or more persons
interested in the performance of that duty. The
instant petition was not so brought."
274 Ala. at 186, 146 So. 2d at 314-15 (emphasis added).
other
words, because
the
duty
involved
was
owed
to
In
the
and
so
the
action
could
be
brought
only
as
an
all
elections
in
the
county,
but
gave
the
1140460
commission discretion not to provide machines in any precinct
having less than 100 registered voters.
So. 2d at 447.
Id.
Applying
52
1140460
Similarly, in Homan v. State ex rel. Smith, 265 Ala. 17,
18, 89 So. 2d 184, 186 (1956), a relator filed an action
seeking to force the respondents, all the members of the Board
of Commissioners of the Town of Muscle Shoals,
"'to forthwith call an election for and in the Town
of Muscle Shoals, a municipal corporation in
Alabama, to decide the question whether said town
shall be annexed to the City of Sheffield, a
municipal corporation in Alabama, and to pass the
necessary Ordinance providing for such an election
to be held not less than thirty days after the
passage of the Ordinance, in accordance with the
provisions of Title 37, 188.'"
265 Ala. at 18, 89 So. 2d at 185.
So.
293,
commissioner's
295
(1935),
statutory
the
Court
duty
to
53
held
sign
that
a
county
warrant
on
1140460
appropriation for a public library was "a legal duty in which
there was such public interest as warranted a proceeding by
mandamus in the name of the state."
the
action
in
his
own
name
because
he
had
no
1140460
not that of the public, to invalidate, not enforce, a statute
providing for the taxation of wine sales.
A careful reading
1140460
violation,' nor does any 'basis
allegation appear to exist.'"
for
such
an
at 1059
determine whether
See, e.g.,
As in other states, as
The fact that two of the relators here are publicinterest, nonprofit corporate entities rather than natural
56
1140460
As indicated, relators must show that they are seeking to
require a "public officer to perform a legal duty in which the
public has an interest."
at 447.
1140460
this law and the critical interest of the public in it for the
reasons discussed in Part I above.11
That the duty and corresponding right at issue are owed
to and held by the public is made even clearer when one
considers the exact nature of the duty in question as one that
is not even susceptible of vindication as a private right.
The duty is not of some affirmative action on the part of the
respondents,
because
the
statute
in
question
merely
It is a
It
11
1140460
The duty and the corresponding right are intrinsically public
in their nature, not even susceptible to an action by an
individual asserting a private right as to their enforcement.
against
the
chairman
59
of
the
board
to
void
1140460
notification sent by the board to certain taxpayers that
changes had been made in assessment of their property.
"Identical motions to dismiss were filed by the
appellee, by the State of Alabama, and by the
Attorney General individually, grounded upon the
position that the appellant was not a proper party
to the petition since the functioning of the Board
was an activity affecting the sovereign rights of
the State, necessitating the filing of such petition
by the law officer of the State, the Attorney
General."
273 Ala. at 391, 141 So. 2d at 169.
that the action fell within the sovereign rights of the State
and as such could not be brought as an on-relation action by
a private party in the name of the State.
the
applicable
rule
begins
to
shed
Its explanation of
light
on
its
1140460
pertains
to
the
sovereignty
of
the
State,
proceedings for the enforcement of such right are to
be instituted by the Attorney General."
273 Ala. at 391-92, 141 So. 2d at 169-70 (emphasis added).
The rule as stated in Marshall County and Morrison is
that only the Attorney General may bring an action in the name
of the State if its purpose is to enforce a "duty owing to the
government as such."
payment of taxes.
1089,
1089-90 (1902),
is
an
early
example
of
an
action
that
the
relator
could
bring
the
action,
explaining:
"Suits to collect debts due the state must, as
a rule, be brought in the name of the state, and by
its principal law officer, the attorney general, or
by some other law officer whose duty it is to
represent the state in legal proceedings, and who
61
1140460
may be authorized by statute to sue for it in the
particular class of cases.
"....
"In the case of Kimberley v. Morris, 87 Tex.
637, 31 S.W. 808 [(1895)], the rule announced in
[Union Pacific] Railroad Co. v. Hall, 91 U.S. 343,
23 L. Ed. 428 [(1875)], 'that private persons may
move for a mandamus to enforce a public duty not due
to the government as such, without the intervention
of the government law officer,' was quoted with
approval. ... [I]t should be held, as it seems to
us, that a citizen of the state, though a taxpayer,
cannot maintain a suit to compel an officer to
perform a function due merely to the government as
such, and in which he can have no private interest
whatever. There are some decisions which probably
hold to the contrary, but we think the great weight
of authority and the better reason support the rule
announced by us. We therefore conclude that, if a
suit of this character were maintainable against the
comptroller, the relator in the petition before us
is not the proper party to bring it."
95 Tex. at 159-60, 65 S.W. at 1089-90 (emphasis added).
The
1140460
collection of State taxes lies with the State."); State
ex rel. St. Louis Young Men's Christian Ass'n v. Gehner, 320
Mo. 1172, 1182, 11 S.W.2d 30, 34 (1928) ("Taxation is a
sovereign right of the state ...."); and Aldridge v. Federal
Land Bank of Columbia, 203 Ga. 285, 290, 46 S.E.2d 578, 581
(1948) (noting "the sovereign right of the State to tax as
declared by the constitution").12
Alabama
on-relation
cases
bear
out
this
distinction
This
Court
has
addressed
cases
concerning
the
1140460
as such, not to the public at large, because it implicated the
power of taxation.
Another
such
case,
heavily
relied
upon
by
the
Foshee
Court's mention of
the
case
of
"Chilton
1140460
Foshee.
In Chilton County,
County
and
Foshee,
however,
involved
the
Both
tax
1140460
sovereign right which belongs exclusively to [the
state], and it has not delegated to the county nor
to any one the right to enforce the duties to it of
its own administrative officer. The Attorney General
and perhaps the Governor are vested with the
ultimate power, conferred by the sovereignty, to
control this sort of litigation."
Chilton County, 225 Ala. at 193-94, 142 So. at 533.13
13
1140460
In a separate argument, the respondents contend that the
above-emphasized language states that the petitioner must have
some "injury peculiar to himself" in order to qualify as a
relator who can invoke the standing of the State in an
on-relation action.
any
case,
unless
he
sustains
an
injury
peculiar
to
v. Mellon, 262 U.S. 447 (1923); Ex parte Levitt, 302 U.S. 633
(1937); Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208 (1974); Allen v. Wright, 468 U.S. 737 (1984)
(abrogated on other grounds by Lexmark Int'l, Inc. v. Static
Control Components, Inc., ___ U.S. ___, 134 S. Ct. 1377
(2014)); Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464 (1982); and
Whitmore v. Arkansas, 495 U.S. 149 (1990) (duty sued upon was
owed to a person other than the plaintiff), with Federal
Election Comm'n v. Akins, 524 U.S. 11 (1998); Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167
(2000)(seeking to require compliance with anti-pollution
laws); and Massachusetts v. EPA., 549 U.S. 497 (2007)
(recognizing standing in several environmental groups seeking
to enforce a duty imposed on the EPA to regulate certain
carbon-dioxide emissions). See generally Union Pac. R.R. v.
Hall, 91 U.S. 343 (1875) (holding that a member of the public
may bring a mandamus petition to enforce a public duty and
need not possess a particularized interest in the duty).
67
1140460
himself."
1140460
Granted, Kendrick and similar cases do refer to onrelation actions brought in the name of the State "on the
relation of one or more persons interested in the performance
of [a] duty" to the public.
54 So. 2d at 447.
fulfill
his
normal
role
of
representing
the
public
1140460
same level required of plaintiffs under Lujan.
itself supplies that standing.
The State
adversarial
proceeding
for
its
just
resolution.
Moreover,
includes
in
his
cases
judicial
involving
capacity,
his
adoptions,
In other
1140460
by other probate judges and to address unavoidable derivative
questions.
1140460
bring.
public
and
those
government as such.
that
involve
duty
owed
to
the
1140460
C.
16
1140460
decision of a federal district court judge is not binding
precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different
case.'"
As the
they
are
not
authoritative
as
precedent
and
child at issue.
As has been noted, in April 2012, Mobile
Probate Judge Davis entered a final trial court order denying
that petition on the ground that the requested adoption was
not permitted under the Amendment and the Act. C.D.S., as was
the proper course, sought relief within the appellate courts
of this state. See In re K.R.S., 109 So. 3d 176 (Ala. Civ.
App. 2012).
74
1140460
R.R., 905 So. 2d 789, 794 (Ala. 2004).
"United
States
district
court
decisions
are
not
are
not
bound
by
the
decisions
of
the
Eleventh
States
Supreme
Court,
though
persuasive,
are
not
1140460
federal courts have the same responsibility and occupy the
same position; there is a parallelism but not paramountcy for
both
sets
of
courts
are
governed
by
the
same
reviewing
v.
Woods, 432
F.2d
1072,
1075
(7th
Cir.
1970)
(quoting State v. Coleman, 46 N.J. 16, 36, 214 P.2d 393, 403
(1965)).
"Although consistency between state and federal
courts is desirable in that it promotes respect for
the law and prevents litigants from forum-shopping,
there is nothing inherently offensive about two
sovereigns reaching different legal conclusions.
Indeed, such results were contemplated by our
federal system, and neither sovereign is required
to, nor expected to, yield to the other."
Surrick v. Killion, 449 F.3d 520, 535 (3d Cir. 2006).
The United States Supreme Court has acknowledged that
state courts "possess the authority, absent a provision for
exclusive federal jurisdiction, to render binding judicial
decisions that rest on their own interpretations of federal
law."
Justices
of
the
United
States
Supreme
Court
in
special
Two
1140460
federal system, a state trial court's interpretation
of federal law is no less authoritative than that of
the federal court of appeals in whose circuit the
trial court is located."
Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J.,
concurring).
States
District
Court
for
the
Southern
of
the
reasoning
employed
by
the
federal
77
1140460
It is important to observe at the outset that some of the
federal courts that have declared traditional marriage laws
unconstitutional have insinuated that these marriage laws are
something new by pointing to the marriage laws and amendments
that states began enacting in the early 1990s. By focusing on
this spate of laws, the federal courts have asserted that
marriage laws were enacted to target homosexuals.
This line
1140460
For example, in Alabama it is true that the Act was
enacted in 1998, and that the Amendment was ratified in 2006.
Laws that include the concept of marriage as between a husband
and wife have existed, however, since the inception of the
Alabama as a state in 1819.18
1140460
statutory scheme set out in the provisions of Chapter 1 of
Title 30
which
the
licensing
has
recognition
provided
of
for
the
"marriage,"
affirmative
including
the
"marriages"
and
the
provisions
in
30-1-7
(and
its
if
one
insists,
although
this
clearly
created probate courts. 1850 Ala. Laws 26. This power was
officially codified in 1852. See Ala. Code 1852, 1949.
80
1140460
scheme.19
And
beyond
even
that
statutory
scheme,
19
what
1140460
ultimately is at issue is the entire edifice of family law
discussed previously, an edifice that has existed in some form
since before the United States was even a country.20
See
1140460
1 Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama
Family Law 1:1 (2008) (observing that "a whole range of
state and federal legal rights and obligations depend on the
existence of a valid marriage. If there is no legal marriage,
then those rights and obligations do not apply. These legal
rights and obligations are basic to the well-being of society,
as the United States Supreme Court has noted in describing the
importance
of
'society's
marriage
hierarchy
as
of
having
values'"
'basic
position'
(quoting
Boddie
in
v.
It is no small thing
to
"strict
scrutiny"
and
are
sustained
only
if
tailored"
to
fulfill
that
interest.
(3)
The
1140460
compelling
narrowly
state
interests
tailored
as
to
or
the
meet
limitation
the
stated
is
not
so
interest.
the
Equal
Protection
Clause
because
those
laws
84
1140460
"The general rule gives way, however, when a
statute classifies by race, alienage, or national
origin. These factors are so seldom relevant to the
achievement of any legitimate state interest that
laws grounded in such considerations are deemed to
reflect prejudice and antipathy -- a view that those
in the burdened class are not as worthy or deserving
as others. For these reasons and because such
discrimination is unlikely to be soon rectified by
legislative means, these laws are subjected to
strict scrutiny and will be sustained only if they
are suitably tailored to serve a compelling state
interest."
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
439-40 (1985) (emphasis added and citations omitted).
The difficulty with the Searcy I plaintiffs' equalprotection claim is that, in order to trigger a "strictscrutiny"
analysis,
the
offending
law
must
discriminate
"[w]ithout
equating
gender
classifications,
for
all
Court,
in
post-Reed[
v.
85
Reed,
404
U.S.
71 (1971),]
1140460
decisions, has carefully inspected official action that closes
a door or denies opportunity to women (or to men)" (footnote
omitted)).
The fact is, however, that traditional-marriage laws do
not discriminate based on gender:
Only
in
the
process
assuming
an
answer
as
part
of
the
Put in the
1140460
same gender.").
Lofton v.
F.3d 388, 413 (6th Cir. 2014) (noting that "[t]he Supreme
Court has never held that legislative classifications based on
sexual orientation receive heightened review and indeed has
not
recognized
new
suspect
class
in
more
than
four
decades.").
Because Alabama's marriage laws are not subject to strict
scrutiny under the Equal Protection Clause, they need only
survive
muster.
a rational-basis
analysis
to
pass
constitutional
21
1140460
bases for Alabama's understanding of marriage in Part I,
above.
couples."
court
As
latched
we
previously
onto
this
noted,
argument,
the
federal
stating
that
1140460
(1978), for example, the Court stated: "'Marriage is one of
the "basic civil rights of man," fundamental to our very
existence and survival.' [Loving, 388 U.S.] at 12, quoting
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541
(1942)."
381
right.
See,
e.g.,
DeBoer, 772
F.3d
at
412
(observing that "[w]hen Loving and its progeny used the word
marriage, they did not redefine the term but accepted its
traditional meaning."). This is evident from the fact that in
each of those cases the discussion of the right involved
children.
1140460
federal district court discussed, in Baker v. Nelson, 291
Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S.
810 (1972), the Supreme Court summarily dismissed "for want of
a substantial federal question" an appeal from the Minnesota
Supreme Court in which that court concluded that a state
statute defining marriage in the traditional manner did not
violate the First, Eighth, Ninth, or Fourteenth Amendments to
the United States Constitution.
the
federal
strength
as
circuit
courts
precedent
in
of
the
of
regarding
Baker's
Windsor,22
Baker
was
not
referring
to
an
institution
that
formally
22
1140460
Thus, what the federal district court has done is to
declare an entirely new concept of "marriage" a fundamental
right under the guise of the previously understood meaning of
that
institution.
It
is,
plainly
and
simply,
circular
Bostic
23
1140460
v. Schaefer, 760 F.3d 352, 391 (4th Cir. 2014) (Niemeyer, J.,
dissenting).25
importing something that is left hidden or unacknowledged -some undisclosed assumption or premise." Steven D. Smith, The
Disenchantment of Secular Discourse 35 (2010). Smith goes on
to explain that such a tactic is "illicit" when making the
undisclosed premise
"explicit would be controversial: you would have to
defend the premise, and you don't want to do that.
Or your premise might be illicit because you
yourself do not believe it: you like your
conclusion, maybe, but you don't actually believe
what would be necessary to support this particular
argument for that conclusion. Perhaps, if you were
to make your unstated premise explicit, you would be
convicted of inconsistency, because you have
contradicted that premise on other occasions. Or
your
premise
might
be
illicit
because
the
conventions of the discourse you are engaging in
purport to exclude it."
Id. at 36.
In this instance, the first two reasons Smith offers for
"smuggling" are the most likely to apply. Proponents of the
new definition of marriage do not want to have to defend the
premise behind their change of definition because doing so
would necessarily require the introduction of legislation to
effect the change rather than a court order.
Also, as is
explained in note 31 and the accompanying text, the new
definition of marriage put forward by proponents of same-sex
marriage carries implications that proponents themselves
either do not believe or do not want explicitly revealed at
this time because they know that a large majority of the
populace is not ready to accept those implications.
25
1140460
The ostensible reason for the federal district court's
judicial
sleight
of
hand
is
apparent
enough:
conferring
1140460
history and tradition. In this country, no State
permitted same-sex marriage until the Massachusetts
Supreme Judicial Court held in 2003 that limiting
marriage to opposite-sex couples violated the State
Constitution. See Goodridge v. Department of Public
Health, 440 Mass. 309, 798 N.E.2d 941 [(2003)]. Nor
is the right to same-sex marriage deeply rooted in
the traditions of other nations. No country allowed
same-sex couples to marry until the Netherlands did
so in 2000."
Windsor, ___ U.S. at ___, 133 S. Ct. at 2715 (Alito, J.,
dissenting) (footnote omitted). See also Hernandez v. Robles,
7 N.Y.3d 338, 361, 821 N.Y.S.2d 770, 777, 855 N.E.2d 1, 8
(2006) ("Until a few decades ago, it was an accepted truth for
almost everyone who ever lived, in any society in which
marriage existed, that there could be marriages only between
participants of different sex.").26
26
The
Bostic
Court,
among
others,
asserted
that
"Glucksberg's analysis applies only when courts consider
whether to recognize new fundamental rights" and that
including same-sex couples in the right to marry does not
create a new right, and so, conveniently, it did not matter
that there is no historical tradition of same-sex marriage.
760 F.3d at 376.
The Bostic Court noted that the Supreme
Court did not contend that it was creating a new fundamental
right to interracial marriage when it struck down Virginia's
miscegenation statute as unconstitutional in Loving. Id. at
376-77. This point ignores the fact that the Loving Court did
not need to create a new fundamental right in order to subject
Virginia's statute to strict-scrutiny analysis because the
statute discriminated on the basis of race, which is an
express suspect classification in the Fourteenth Amendment.
94
1140460
Beyond
the
obvious
historical
problem
with
labeling
of
same-sex
marriage
repeatedly
contend
that
fundamental
because
shift
marriage,
as
in
the
far
as
social
the
fabric
of
government
is
a wholly
27
1140460
than a state-granted legal license, it is difficult to see how
it could rise to the status of a fundamental right of such
importance
states
that
from
the
United
approving
States
only
the
Constitution prohibits
historically
accepted
need
to
know
what
characteristic
is
so
As
of
marriage
1140460
the asserted fundamental liberty interest" is required in
substantive-due process cases.
is
undeniable
that
the
institution
of
Although it
marriage
is
are
not
treated
as
fundamental.29
The
United
28
366,
798
N.E.2d
at
985
n.3
(Cordy,
J.,
1140460
presumably
will
continue
to
undertake)
in
determining who may enter and leave a marriage.
Start with the duration of a marriage. For some,
marriage is a commitment for life and beyond. For
others, it is a commitment for life.
For still
others, it is neither. In 1969, California enacted
the first pure no-fault divorce statute. See Family
Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic
expansion of similar laws followed.
See Lynn D.
Wardle, No-Fault Divorce and the Divorce Conundrum,
1991 BYU L. Rev. 79, 90.
The Court has never
subjected these policy fits and starts about who may
leave a marriage to strict scrutiny.
"Consider also the number of people eligible to
marry. As late as the eighteenth century, '[t]he
predominance of monogamy was by no means a foregone
conclusion,' and '[m]ost of the peoples and cultures
around the globe' had adopted a different system.
Nancy F. Cott, Public Vows: A History of Marriage
and the Nation 9 (2000).
Over time, American
officials wove monogamy into marriage's fabric.
Beginning in the nineteenth century, the federal
government 'encouraged or forced' Native Americans
to adopt the policy, and in 1878 the Supreme Court
upheld a federal antibigamy law.
Id. at 26; see
Reynolds v. United States, 98 U.S. 145 (1878). The
Court has never taken this topic under its wing. And
if it did, how would the constitutional, as opposed
to policy, arguments in favor of same-sex marriage
not apply to plural marriages?
"Consider finally the nature of the individuals
eligible to marry.
The age of consent has not
remained constant, for example.
Under Roman law,
men could marry at fourteen, women at twelve. The
American colonies imported that rule from England
and kept it until the mid-1800s, when the people
began advocating for a higher minimum age. Today,
all but two States set the number at eighteen. See
Vivian E. Hamilton, The Age of Marital Capacity:
Reconsidering Civil Recognition of Adolescent
98
1140460
F.3d
388,
412-13
(6th
Cir.
1140460
States Supreme Court observed in Windsor that
"[m]arriage laws vary in some respects from State to
State. For example, the required minimum age is 16
in Vermont, but only 13 in New Hampshire. Compare
Vt. Stat. Ann., Tit. 18, 5142 (2012), with N.H.
Rev. Stat. Ann. 457:4 (West Supp.2012). Likewise
the permissible degree of consanguinity can vary
(most States permit first cousins to marry, but a
handful -- such as Iowa and Washington, see Iowa
Code 595.19 (2009); Wash. Rev. Code 26.04.020
(2012) -- prohibit the practice)."
Windsor, ___ U.S. at ___, 133 S. Ct. at 2691-92.
No one
same-sex partners?
level
of
constitutional
right
with
which
the
states
the matter.
100
1140460
sodomy laws in Lawrence v. Texas, 539 U.S. 558 (2003).
But
does
not
expressly
seek
public
relationships.
work
here
because
same-sex
state-government
approval
That
partners
of
their
such
unions
to
opposite-sex
couples.
Neither
30
1140460
called right to privacy that has been trumpeted by the Supreme
Court since Griswold.
Another possible answer to the question is love.
Under
no
public
interest
in
whether
the
people
seeking
whether couples
love
each
other
when
they
seek
then
also
would
be
constitutionally
protected because
"there is no reason to think that three or four
adults, whether gay, bisexual, or straight, lack the
capacity to share love, affection, and commitment,
or for that matter lack the capacity to be capable
(and more plentiful) parents to boot. If it is
constitutionally
irrational
to
stand
by
the
man-woman definition of marriage, it must be
102
1140460
constitutionally
irrational
to
stand
monogamous definition of marriage."31
by
the
Id.
Proponents of the new definition of marriage therefore
leave us with an untenable contradiction.
relationships
between
members
of
the
same
sex
31
1140460
government sponsorship of it.
nature,
in
which
case
Alabama's
laws
enforcing
the
sex.
The
obvious
reason
for
this
immutable
1140460
members of the opposite sex -- procreation -- in a socially
advantageous manner.33
the
decentralized structure
of
our
democratic
1140460
plays in 'promot(ing) a way of life' through the instruction
of children" (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33
(1972)); Williams v. North Carolina, 317 U.S. 287, 298 (1942)
("The marriage relation creates problems of large social
importance. Protection of offspring, property interests, and
the enforcement of marital responsibilities are but a few of
[the] commanding problems ...."). In short, government has an
obvious interest in offspring and the consequences that flow
from the creation of each new generation, which is only
naturally possible in the opposite-sex relationship, which is
the
primary
reason
marriage
between
men
and
women
is
why
traditional
marriage
is
rational
state
policy:
"Civil marriage is the institutional mechanism
by which societies have sanctioned and recognized
particular family structures, and the institution of
marriage has existed as one of the fundamental
organizing principles of human society. See C.N.
Degler, The Emergence of the Modern American Family,
in
The
American
Family
in
Social-Historical
Perspective 61 (3d ed. 1983); A.J. Hawkins,
Introduction, in Revitalizing the Institution of
Marriage for the Twenty-First Century: An Agenda for
Strengthening Marriage xiv (2002); C. Lasch, Social
Pathologists and the Socialization of Reproduction,
106
1140460
in
The
American
Family
in
Social-Historical
Perspective, [61,] at 80 [(3d ed. 1983)]; W.J.
O'Donnell & D.A. Jones, Marriage and Marital
Alternatives 1 (1982); L. Saxton, The Individual,
Marriage, and the Family 229-230, 260 (1968); M.A.
Schwartz & B.M. Scott, Marriages and Families:
Diversity and Change 4 (1994); Wardle, 'Multiply and
Replenish': Considering Same-Sex Marriage in Light
of State Interests in Marital Procreation, 24 Harv.
J.L. & Pub. Pol'y 771, 777-780 (2001); J.Q. Wilson,
The Marriage Problem: How Our Culture Has Weakened
Families 28, 40, 66-67 (2002). Marriage has not been
merely a contractual arrangement for legally
defining the private relationship between two
individuals (although that is certainly part of any
marriage). Rather, on an institutional level,
marriage is the 'very basis of the whole fabric of
civilized society,' J.P. Bishop, Commentaries on the
Law of Marriage and Divorce, and Evidence in
Matrimonial Suits 32 (1852), and it serves many
important political, economic, social, educational,
procreational, and personal functions.
"Paramount among its many important functions,
the institution of marriage has systematically
provided
for
the
regulation
of
heterosexual
behavior,
brought
order
to
the
resulting
procreation, and ensured a stable family structure
in which children will be reared, educated, and
socialized. See Milford v. Worcester, 7 Mass. 48, 52
(1810) (civil marriage 'intended to regulate,
chasten, and refine, the intercourse between the
sexes; and to multiply, preserve, and improve the
species'). See also P. Blumstein & P. Schwartz,
American Couples: Money, Work, Sex 29 (1983); C.N.
Degler, supra at 61; G. Douglas, Marriage,
Cohabitation, and Parenthood -- From Contract to
Status?, in Cross Currents: Family Law and Policy in
the United States and England 223 (2000); S.L. Nock,
The Social Costs of De-Institutionalizing Marriage,
in Revitalizing the Institution of Marriage for the
Twenty-First Century: An Agenda for Strengthening
Marriage, supra at 7; L. Saxton, supra at 239-240,
242; M.A. Schwartz & B.M. Scott, supra at 4-6;
107
1140460
Wardle, supra at 781-796; J.Q. Wilson, supra at 2332.
Admittedly,
heterosexual
intercourse,
procreation, and child care are not necessarily
conjoined (particularly in the modern age of
widespread effective contraception and supportive
social welfare programs), but an orderly society
requires some mechanism for coping with the fact
that
sexual
intercourse
commonly
results
in
pregnancy and childbirth. The institution of
marriage is that mechanism.
"The institution of marriage provides the
important
legal
and
normative
link
between
heterosexual intercourse and procreation on the one
hand and family responsibilities on the other. The
partners in a marriage are expected to engage in
exclusive sexual relations, with children the
probable result and paternity presumed. See G.L. c.
209C, 6 ('a man is presumed to be the father of a
child ... if he is or has been married to the mother
and the child was born during the marriage, or
within three hundred days after the marriage was
terminated by death, annulment or divorce'). Whereas
the relationship between mother and child is
demonstratively
and
predictably
created
and
recognizable through the biological process of
pregnancy and childbirth, there is no corresponding
process for creating a relationship between father
and child. Similarly, aside from an act of
heterosexual intercourse nine months prior to
childbirth, there is no process for creating a
relationship between a man and a woman as the
parents of a particular child. The institution of
marriage fills this void by formally binding the
husband-father to his wife and child, and imposing
on him the responsibilities of fatherhood. See J.Q.
Wilson, supra at 23-32. See also P. Blumstein & P.
Schwartz, supra at 29; C.N. Degler, supra at 61; G.
Douglas, supra at 223; S.L. Nock, supra at 7; L.
Saxton, supra at 239-240, 242; M.A. Schwartz & B.M.
Scott, supra at 4-6; Wardle, supra at 781-796. The
alternative, a society without the institution of
marriage,
in
which
heterosexual
intercourse,
108
1140460
procreation, and child care are largely disconnected
processes, would be chaotic.
"The marital family is also the foremost setting
for the education and socialization of children.
Children learn about the world and their place in it
primarily from those who raise them, and those
children eventually grow up to exert some influence,
great or small, positive or negative, on society.
The institution of marriage encourages parents to
remain committed to each other and to their children
as they grow, thereby encouraging a stable venue for
the education and socialization of children. See P.
Blumstein & P. Schwartz, supra at 26; C.N. Degler,
supra at 61; S.L. Nock, supra at 2-3; C. Lasch,
supra at 81; M.A. Schwartz & B.M. Scott, supra at 67. More macroscopically, construction of a family
through marriage also formalizes the bonds between
people in an ordered and institutional manner,
thereby
facilitating
a
foundation
of
interconnectedness and interdependency on which more
intricate stabilizing social structures might be
built. See M. Grossberg, Governing the Hearth: Law
and Family in Nineteenth-Century America 10 (1985);
C. Lasch, supra; L. Saxton, supra at 260; J.Q.
Wilson, supra at 221."
Goodridge, 440 Mass. at 381-84, 798 N.E.2d at 995-96 (Cordy,
J., dissenting) (footnote omitted).34
34
1140460
1140460
Ultimately, these are the purposes of marriage that
relate to government.
on
the
private
concerns
of
adults,
while
the
1140460
the special relationship that exists between a man and a
woman, i.e., the effects for care of children, the control of
passions, the division of wealth in society, and so on.
The federal district court and other courts that have
struck down traditional marriage laws have stated that states
cannot
distinguish
procreation
and
traditional
the
beneficial
marriage
effects
on
the
the
basis
of
institution
have
marriages.
children,
and
yet
government
recognizes
their
35
1140460
of using elections to allow people to chose their government
leaders. "Marriage laws are not aimed at making all married
sex procreative but only seek to encourage that all man-woman
sex occurs in marriage, as a protection for when such sex is
procreative -- a protection for the baby, the often vulnerable
mother, and society generally." Stewart, 31 Harv. J.L. & Pub.
Pol'y at 344-45.36
The
Searcy
federal
I
states
district
that
court's
"[t]he
memorandum
Attorney
opinion
General
fails
in
to
But "'the
36
1140460
relevant
inquiry
here
is
not
whether
excluding
same-sex
man-woman
relevant
inquiry
couples
is
into
whether
marriage.'
also
Rather,
recognizing
the
same-sex
at
394
(Niemeyer,
appellant's brief).
J.,
dissenting)(quoting
state-
pregnancies.
courts
to
invalidate
laws
every
time
new
and
114
1140460
Under United States Supreme Court precedent, another
potential
method
of
finding
traditional
marriage
The
the
inevitable
inference
that
the
disadvantage
517
U.S.
at
634.
In
short,
the
amendment
115
1140460
end but to make them unequal to everyone else."
517 U.S. at
635.
In
Lawrence,
criminalizing
the
sodomy
Court
struck
because,
it
down
said,
Texas
homosexuals
law
"are
Id.
Id. at 2694.
Id. at 2695.37
1140460
The
theme
from
Romer,
Lawrence,
and
Windsor
that
of
marriage
to
opposite-sex
Although Alabama's
couples
prevents
"Typically,
judicial
decisions
invalidating
challenged laws ultimately boil down to peremptory
assertions by judges that the law in question has no
'rational basis' or is the product of prejudice or
'animus.' Thus, citing 'a substantial number of
Supreme Court decisions, involving a range of legal
subjects, that condemn public enactments as being
expressions of prejudice or irrationality or
invidiousness,' Robert Nagel shows how 'to a
remarkable extent, our courts have become places
where the name-calling and exaggeration that mark
the lower depths of our political debate are simply
given more acceptable, authoritative form.'"
Steven D. Smith, The Disenchantment of Secular Discourse, 9
(2010) (quoting Robert F. Nagel, Name-Calling and the Clear
Error Rule, 88 Northwestern Univ. L. Rev. 193, 199 (1993)).
117
1140460
structure and enable formative education and socialization of
children.
toward
homosexuals,
then
Supreme
Court
precedent
1140460
the law cannot deprive individuals of simply because they
desire to marry a person of the same sex.
reasoning comes from Windsor.
This line of
1140460
language.
Cir.
2014)
legitimate
(emphasizing
purpose
Windsor's
overcomes
the
statement
purpose
and
that
"'no
effect
to
A.3d
336,
361
(Ch.
Div.
2013)
(relying
on Windsor's
"equal
dignity"
rationale
contains
several
judges
do
not
like,
120
even
though
no
actual
1140460
constitutional infirmity exists.38
textual,
it
is
at
least
incumbent
upon
federal
courts
terms
and
what
therefore
"dignity"
exactly
state-sanctioned
what
same-sex
marriage
couples
are
Does a
38
As already noted, the Supreme Court's substantive-dueprocess cases require "a 'careful description' of the asserted
fundamental liberty interest." Glucksberg, 521 U.S. at 720-21
(quoting Reno, 507 U.S. at 302).
121
1140460
dignity? The United States Supreme Court has held that damage
to reputation is not a cognizable interest protected by the
Fourteenth Amendment. See Paul v. Davis, 424 U.S. 693, 712
(1976) (holding that "the interest in reputation ... is
neither 'liberty' nor 'property' guaranteed against state
deprivation without due process of law").
So presumably this
"rights
and
obligations
between
the
couple
and
any
1140460
Marriage for? The Public Purposes of Marriage Law, 62 La. L.
Rev. 773, 781 (2002).
"Plaintiffs seek to bring the right to marry the
person of their choosing regardless of gender within
the protection of the well-recognized fundamental
right to marry (see Zablocki v. Redhail, 434 U.S.
374, 98 S. Ct. 673 [(1978)]; Loving v. Virginia,
388 U.S. 1, 87 S. Ct. 1817 [(1967)];
Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62
S. Ct. 1110, 86 L. Ed. 1655 [(1942)]). However, we
find merit in defendants' assertion that this case
is not simply about the right to marry the person of
one's choice, but represents a significant expansion
into new territory which is, in reality, a
redefinition of marriage.
The cornerstone cases
acknowledging marriage as a fundamental right are
laced with language referring to the ancient
recognized nature of that institution, specifically
tying part of its critical importance to its role in
procreation and, thus, to the union of a woman and
a man....
Samuels v. State Dep't Of Health, 29 A.D.3d 9, 14-15, 811
N.Y.S.2d 136, 140-41 (N.Y. App. Div. 2006) (footnote omitted),
aff'd sub nom., Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d
1, 821 N.Y.S.2d 770 (2006).
Related to the fact that Windsor implicitly adopts the
new definition of marriage is the fact that Windsor's "equal
dignity" rationale necessarily makes a moral judgment about
adult sexual relationships, even though the Supreme Court in
Lawrence and lower courts addressing the marriage issue have
purported
to
disclaim
ascribing
123
any
merit
to
moral
or
1140460
religious considerations.40
Many
40
1140460
several courts that have invalidated traditional marriage
laws.42
It
seems
at
least
disingenuous
to
find
42
1140460
constitutional infirmity with traditional marriage laws by way
of a moral judgment when states have been forced to defend
those
laws
especially
apart
from
difficult
any
task
moral
given
or
that
religious
American
basis,
an
ideas
of
Moreover, because
1140460
relationships?43
43
"The
secular
philosophical
tradition
speaks
of
inalienable rights, inalienable human dignity and of persons
as ends in themselves.
These are, I believe, ways of
whistling in the dark, ways of trying to make secure to reason
what reason cannot finally underwrite."
Raimond Gaita, A
Common Humanity: Thinking About Love and Truth and Justice 5
(Routledge 2000) (1998).
127
1140460
intuitions.44
carries
with
it
"dignity"
that
compels
its
1140460
Under that construct, such dignity no doubt would be something
gained from the very nature of traditional marriage, the
foundation for the family unit within which children may be
born and have imparted to them by a mother and father the
values needed for responsible citizenship and the furtherance
of society.
"To remove from 'marriage' a definitional component
of that institution (i.e., one woman, one man) which
long predates the constitutions of this country and
state (see e.g. Griswold v. Connecticut, 381 U.S.
479, 486[, 85 S. Ct. 1678, 14 L. Ed. 2d 510] [1965])
would, to a certain extent, extract some of the
'deep[] root[s]' that support its elevation to a
fundamental right."
Samuels v. State Dep't. of Health, supra.
Finally, an open question exists as to whether Windsor's
"equal dignity" notion works in the same direction toward
state laws concerning marriage as it did toward DOMA.
The
Windsor, ___
Thus,
1140460
choice that was "without doubt a proper exercise of its
sovereign authority within our federal system, all in the way
that the Framers of the Constitution intended." ___ U.S. at
___, 133 S.Ct. at 2692.
Alabama "used
Id.
is
central
to
state
domestic
relations
law
On one
1140460
Redefining
marriage
by
definition
implies
that
the
1140460
traditional definition is inaccurate.
In point of fact, we
law
must
legitimize
one
Both
Insisting that
definition
necessarily
Some other
states, like New York, have more recently chosen the new
definition.
marriage
has
gained
ascendancy
in
certain
46
According
to
the
National
Conference
of
State
Legislatures, only 12 states have accepted same-sex marriage
as a result of choices made by the people or their elected
132
1140460
As it has done for approximately two centuries, Alabama
law allows for "marriage" between only one man and one woman.
Alabama probate judges have a ministerial duty not to issue
any marriage license contrary to this law.
Nothing in the
Order
Further,
order,
each
such
probate
judge
may
file
an
answer
1140460
be bound hereby.
judge
is
temporarily
enjoined
from
issuing
any
134
1140460
MAIN, Justice (concurring in part and concurring in the
result).
I concur fully in the main opinion except for Part II.B.
As to Part II.B., I concur in the result only.
Consistent
and
briefs in
this
matter,
continue
to
harbor
proceedings
to
satisfy
standing.
135
the
criteria
necessary
for
1140460
SHAW, Justice (dissenting).
I do not believe that this case can be filed in this
Court at this time; as discussed below, I do not believe that
this Court yet has jurisdiction.
It is unfortunate that the federal judiciary has refused
to stay the order striking down Alabama's marriage-protection
laws
until
the
Supreme
Court
of
the
United
States
can
granting of a stay.
This deviation
136
1140460
future cases.
opinion.
1.
with
"original"
this
Court
in
jurisdiction,
an
attempt
which
is
to
invoke
rare.
its
"Original
"The
supreme
court
shall
have
original
140(b)(2)
(emphasis
added).
Code
1975,
137
Circuit courts
1140460
are courts of general jurisdiction whose judgments may be
appealed to this Court and that, under 12-2-7(2), cannot be
bypassed.
case.
This Court routinely hears petitions challenging a lower
court's decision in a pending case; this does not constitute
hearing a matter "before another court" gets that opportunity
and is not an exercise of original jurisdiction. Alabama Code
1975, 12-2-7(3), states that this Court has authority to
issue "remedial and original writs as are necessary to give to
it a general superintendence and control of courts of inferior
jurisdiction."
1140460
Jerome A. Hoffman, Alabama Appellate Courts: Jurisdiction in
Civil Cases, 46 Ala. L. Rev. 843, 852 (Spring 1995).
Advising a probate judge how to issue government marriage
licenses is not "superintendence and control" of an inferior
court's performance of a judicial function.
Instead, it is
Specifically, probate
The jurisdiction
Instead, it is something
1140460
Ala. Code 1975, 30-1-9; Ashley v. State, 109 Ala. 48, 49, 19
So. 917, 918 (1896) ("The issuance of a marriage license by a
judge of probate is a ministerial and not a judicial act.").
There is no exercise of a probate court's jurisdiction when a
probate judge issues a marriage license because the source of
the probate judge's authority to issue such a license does not
stem from the jurisdiction of the court.
By acting in this
1140460
clear from [ 12-2-7(3)] that the justices of the supreme
court are limited in the issuance of these extraordinary writs
as necessary to give general superintendence and control of
inferior jurisdictions. That is, to supervise persons and
bodies clothed with judicial power in the exercise thereof."
(Emphasis added.)
Id.
See
141
1140460
within the original jurisdiction of this Court ....").51 This
Court is applying a different rule in this case.
2.
But
I must respectfully
disagree with the conclusion that this case does not concern
the sovereign rights of this State.
This Court
51
1140460
3.
The
53
1140460
that, in order for those interest groups to sue, they must
have been "injured": "the plaintiff must have suffered an
'injury in fact'--an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) 'actual or
imminent, not "conjectural" or "hypothetical."'" 504 U.S. at
560 (footnote and citations omitted).
groups'
alleged
injuries
in
this
The public-
case
are
not
probate
standing.
judges,
alone,
does
provide
sufficient
144
1140460
thing
they
are
doing
must
result
in
"concrete
and
The
implications
of
such
holding
are
troublesome.
4.
Ex parte
145
1140460
district court, we cannot take judicial notice of another
court's records.
1193 (Ala. 2010).
parts
understanding
petition.").
of
of
the
the
record
that
issues
set
are
forth
essential
in
the
to
an
mandamus
such a situation.
55
1140460
5.
See
Indeed, our
order for answers and briefs may have misled them to believe
that no argument as to this issue was required:
"The respondents are ordered to file answers and, if
they choose to do so, briefs, addressing issues
raised by the petition, including, but not limited
to, any issue relating to standing or otherwise
relating
to
this
Court's
subject-matter
jurisdiction, and any issue relating to the showing
necessary for temporary relief as requested in the
petition."
(Emphasis added.)
1140460
Court to do a party's legal research ...."). This Court is
applying a different rule in this case, and, for all practical
purposes, is issuing an advisory opinion on this issue to two
public-interest groups.
jurisdiction,
proceeding
as
trial
court,
and
in
additional
confusion
and
more
costly
federal
my
view,
potentially
is
venturing
unsettling
into
unchartered
established
148
waters
principles
of
and
law.
E-Filed
CasePM
1:14-cv-00424-CG-C
03/05/2015 @ 05:56:43
Honorable Julia Jordan Weller
Clerk Of The Court
2.
Judge Davis has sought instruction today from the Alabama Judicial Inquiry
Commission.
3.
Proper response to this Court is best made after Judge Granade rules and/or after
the Alabama Judicial Inquiry Commission rules.
4.
Judge Davis is the only Probate Judge in the State of Alabama who has an active
federal court case in which an order where the federal judge has directed Judge Davis to issue
marriage licenses to at least four same sex couples or potentially face considerable personal
liability.
5.
In the first Order of February 12 , Judge Granade in the Strawser case wrote:
th
Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage
licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage.
If Plaintiffs take all steps that are required in the normal course of business as a
prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis
may not deny them a license on the ground that Plaintiffs constitute same-sex
couples or because it is prohibited by the Sanctity of Marriage Amendment and
the Alabama Marriage Protection Act or by any other Alabama law or Order
pertaining to same-sex marriage.
Judge Granade also then wrote more broadly:
This injunction binds Judge Don Davis and all his officers, agents, servants
and employees, and others in active concert or participation with any of
them, who would seek to enforce the marriage laws of Alabama which
prohibit or fail to recognize same-sex marriage. D O N E and ORDERED this
12th day of February, 2015.
Thus, it is not clear i f the above applies to the Plaintiffs or all same-gender applicants.
6.
Judge Granade issued two Orders in Strawser on February 20th. Judge Granade
wrote: "The court previously issued preliminary injunctions in this case prohibiting the Alabama
Attorney General and Judge Davis . . . from enforcing the Alabama laws which prohibit samesex marriage." (Docs. 29, 55). Then Judge Granade wrote: "More specifically, Judge Davis was
enjoined from refusing to issue marriage licenses to the Plaintiffs due to the Alabama laws
which prohibit same-sex marriage. (Doc. 55)." Case 1:14-CV-00424-CG-C, Document 66, Filed
02/20/15 Page 2 of 6. Thus it is not clear i f the above applies to the Plaintiffs or all same-gender
applicants.
7.
On February 20 , Judge Granade issued another Order in Strawser. First Judge
Granade set out the fact that Chief Justice Moore had issued an Administrative Order to the
Probate Court Judges which ordered the Probate Judges not to issue marriage licenses to same
sex couples. Then, in the next sentence, Judge Granade wrote:
th
After this Court issued orders declaring unconstitutional the Sanctity of Marriage
Amendment, Ala. Const. art. I, 36.03, and the Alabama Marriage Protection
Act, Ala. Code 30-1-19, the Chief Justice of the Alabama Supreme Court
issued administrative orders directing Alabama probate judges to uphold those
same laws. Then this Court ordered Mobile County Probate Judge Don Davis
to issue licenses to same-sex couples. (Doc. 55). Case 1:14-cv-00424-CG-C
Document 67 Filed 02/20/15 Page 2 of 5.
8.
Judge Davis was not a party to the Strawser case until Judge Granade granted the
Plaintiff's Motion to Amend, which added Judge Davis as a party and three other couples as
plaintiffs on February 10th. In this Order of February 10th Judge Granade also set a hearing for
the Motion for Preliminary Injunction on February 12th. On February 12 , Judge Granade
ordered Judge Davis to issue marriage licenses to the eight Plaintiffs. That order ended: "This
injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others
in active concert or participation with any of them, who would seek to enforce the marriage laws
of Alabama which prohibit or fail to recognize same-sex marriage."
th
9.
Additionally, developments in this same sex marriage area of the law continue.
The lawyers who represent the same sex couples before Judge Granade have also filed before
Judge Granade a related case, Cari D. Searcy v. Mobile County Probate Judge Don Davis,
individually and in his official capacity, Civil Action No.: 15-00104-C, in which Plaintiff has
sued Judge Davis both in his official capacity and personally. In this same-sex couple step
parent adoption case, the complaint alleges claims based on Section 1983. The complaint alleges
that a federal civil rights violation due to Judge Davis having entered the following in his
Interlocutory Order in Searcy: "the Court will not issue a final adoption order until a final ruling
is issued in the United States Supreme Court on the Marriage Act cases before it."
W H E R E F O R E Judge Davis, by and through his attorneys, urges this Honorable Court to
extend the time for him to respond from today, March 5, 2015, at 5:00 P M until a week from
Monday, March 16, 2015.
/S/LEE L. H A L E
L E E L. H A L E , ESQ.
501 C H U R C H STREET
MOBILE, A L 36602
lee.hale@comcast.net
/S/J. M I C H A E L D R U H A N , JR.
H A R R Y V. SATTERWHITE
SATTERWHITE, D R U H A N , G A I L L A R D &
TYLER, L L C
1325 D A U P H I N STREET
MOBILE, A L 36604
mike@satterwhitelaw. com
harry@satterwhitelaw.com
/ S / M A R K S. B O A R D M A N
TERESA B. PETELOS
C L A Y R. C A R R
B O A R D M A N , C A R R , BENNETT, W A T K I N S
H I L L & G A M B L E , P.C.
400 B O A R D M A N D R I V E
C H E L S E A , A L 35043
mboardman@boardm ancarr.com
CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of March 2015, I electronically filed the foregoing
with the Clerk of the Court using the ACIS system which will send notification to the following:
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, A L 36130-0152
Phone: (334) 242-7447
smclure@ago.state.al.us
Matthew D. Staver
Horatio G. Mihet
Roger K . Graham
LIBERTY COUNSEL
Post Office Box 540774
Orlando, F L 32854
Phone: (800) 671-1776
mstaver@LC.org
court@LC.org
hmihet@LC.org
rgannam@LC.org
Eric Johnston
Suite 107
1200 Corporate Drive
Birmingham, A L 35242
Phone: (205) 408-8893
eric@aericjohnston.com
Samuel J. McLure
The Adoption Law Firm
Post Office Box 2396
Montgomery, A L 36102
Phone: (334) 612-3406
sam@theadaptionfirm.com
Jeffrey M . Sewell
French A. McMillan, L L C
1841 Second Avenue N . , Suite 214
Jasper, A L 35501
Phone: (205) 544-2350
jeff@sewellmcmillan.com
French@sewellmcmillan.com
G. Douglas Jones
Greg Hawley
Chris Nicholson
Jones & Hawley, PC
2001 Park Pl Ste. 830
Birmingham, A L 35203
Phone: (205) 490-2290
ghawley@joneshawley.com
cnicholson@joneshawley.com
djones@joneshawley.com
Kendrick E. Webb
Jamie Helen Kidd
Fred L . Clements
Webb & Eley, P.C.
Post Office Box 240909
Montgomery, A L 36124
Phone: (334) 262-1850
kwebb@webb eley.com
jki dd@webbeley.com
fclements@webbeley.com
Robert D. Segall
Copeland, Franco, Screws & Gill, P.A.
P.O. Box 347
Montgomery, A L 36101
Phone: (334) 420-2956
segall@copelandfranco.com
5
Thomas T. Gallion
Constance C. Walker
Haskell Slaughter & Gallion, L L C
8 Commerce Street, Suite 1200
Montgomery, A L 36104
Phone: (334) 265-8573
ttg@hsg-law.com
ccw@hsg-law.com
Tyrone C. Means
H. Lewis Gillis
Kristen J. Gillis
M E A N S GILLIS L A W , L L C
Post Office Box 5058
60 Commerce Street, Suite 200
Montgomery, A L 36103
Phone: (334) 270-1033
tcmeans@meansgillislaw.com
hlgillis@meansgillislaw.com
kjgilli s@meansgillislaw. com
Mark Englehart
Englehart Law Offices
9457 Alsbury Place
Montgomery, A L 36117
Phone: (334) 782-5258
jmenglehart@gmail.com
George W. Royer, Jr.
Brad A. Chynoweth
Lanier, Ford Chaver & Payne, P.C.
P.O. Box 2087
2101 West Clinton Ave., Suite 102
Huntsville, A L 35804
Phone: (256) 535-1100
gre@lfsp.com
bac@Lani erford. com
J. Richard Cohen
David Dinielli
Southern Poverty Law Center
400 Washington Avenue
Montgomery, A L 36104
Phone: (334) 956-8200
Richard.cohen@splcenter.org
David.dinielli@splcenter.org
Randall Marshall
A C L U of Alabama Foundation
P.O. Box 6179
Montgomery, A L 36106
rmarshall@aclualabama.org
L . Dean Johnson
L . Dean Johnson, PC
4030 Balmoral Dr. SW
Huntsville, A L 35801
Phone: (256) 880-5817
dean@ldjpc.com
J. Stanton Glasscox
Glasscox Law firm, L L C
Post Office Box 2646
Birmingham, Alabama 35201
stan@glasscoxlaw.com
Samuel H . Heldman
The Gardner Firm, PC
2805 31 N W
Washington, D C 20008
sam@heldman.net
st
E-Filed
CasePM
1:14-cv-00424-CG-C
03/05/2015 @ 06:42:05
Honorable Julia Jordan Weller
Clerk Of The Court
Judge Davis needs additional time to respond. Judge Davis has asked the Alabama
Judicial Inquiry Commission for guidance. Further, Judge Davis is asking Judge Granade for a
stay, which if granted, means no more plaintiffs will be added to the federal litigation. Perhaps
the Alabama Judicial Inquiry Commission or Judge Granade will act on Judge Davis requests
within the requested ten (10) day extension.
This Honorable Court issued the Mandamus Order late in the evening of March 3, 2015.
The Mandamus Order, including the dissenting opinion, is 148 pages long. The Order suggests
that it is not immediately directed to Judge Don Davis.1 Judge Davis is the only probate judge in
the State of Alabama ordered by a federal district court judge to issue same sex marriage licenses
to specific plaintiffs. Further in this same case, the federal judge has permitted amendment of
the pleadings to add additional same sex couples seeking the issuance of a marriage license from
the Mobile County Probate Court. The federal district court ordered that Judge Davis issue to
these additional same sex couples marriage licenses two days after they had become parties to
the federal court action.
Judge Davis dilemma is if he denies a same sex couple a marriage license, then that
couple can do as the three additional couples did in Strawser and seek an order from the federal
court directing Judge Davis to issue the marriage license. On February 12, 2015, the federal
district court entered an order requiring Judge Davis to issue marriage licenses to each of the four
couples named as plaintiffs in that case.
Judge Davis has complied with the direct order of the federal district court as he is unsure
if two conflicting orders now apply directly to him. See Glassroth, v. Roy S. Moore, 335 F.3d
1282 (11th Cir. 2003), and Roy S. Moore v. Judicial Inquiry Commission of the State of
Alabama, 891 So.2d 848 (Ala. 2004).
The full impact of the Strawser and Cari D. Searcy v. Mobile County Probate Judge Don
Davis, Civil Action No.: 15-00104-C (Searcy II) cases upon Judge Davis is not clear. Judge
Davis is caught between Judge Granades orders to issue same sex marriage licenses and this
Courts Writ of Mandamus that Alabama probate judges shall not issue same sex marriage
licenses. These conflicting orders of the federal district court and this Honorable Court pose an
impossible task upon Judge Davis: fulfilling opposite orders which are issued to Judge Davis by
the federal court and the Alabama Supreme Court.
2
Further, the lawyers who represent the same sex couples before Judge Granade have also
filed before Judge Granade a related case, in which they have sued Judge Davis both in his
official capacity and personally. In this same-sex couple adoption case, the complaint alleges
claims based on Section 1983. The complaint alleges a federal civil rights violation due to Judge
Davis having entered the following in his Interlocutory Order in Searcy: Cari D. Searcy v.
Robert Bentley, Civil Action No.: 14-208 CG-N (Searcy 1)"the Court will not issue a final
adoption order until a final ruling is issued in the United States Supreme Court on the Marriage
Act cases before it." The federal judge indicated in her February 10, 2015 Order in Strawser that
her orders in Searcy must be read in conjunction with the Order in Strawser to be fully
understood. In Searcy I, other plaintiffs gave notice of their intent to seek money damages in the
form of Section 1983 claims against Judge Davis in his official capacity and personally for
violating their constitutional rights.
Judge Davis has made clear that he will follow the rule of law when directed by the
courts which have authority over him. Judge Davis has not sought out this dispute. In fact, Judge
Davis has taken extraordinary steps to seek guidance from this Honorable Court. Specifically
Judge Davis filed the action which was in the nature of an in rem action and the amended in rem
action filed directly with this Honorable Court regarding the continuing effectiveness, validity,
and authority of the Administrative Order of the Chief Justice of the Supreme Court of Alabama
dated the 8th of February 2015, Case No. 1140456. This Court ruled that this action was in the
nature of a Request for Advisory Opinion which this Court did not have jurisdiction to grant.
Future cases could result in money damage awards arising out of Judge Granades court
against Judge Davis. Judge Davis could face personal liability. Judge Davis urges this
Honorable Court to consider such matters relating solely to Judge Davis among all the probate
judges in the State of Alabama. This Court should consider this risk in the context of an active
federal court case against Judge Davis which has already, and probably will further result in any
same sex couple who seeks a marriage license from Probate Court in Mobile County obtaining it
within two days after Judge Davis refuses to grant the license.
Whether Judge Davis is bound by a federal court order regarding issuing marriage
licenses to others than the plaintiffs in Strawser can be answered in two different ways. First, its
narrowest sense, Judge Davis is bound presently by only one existing federal court case which
involves multiple orders which are very broad, applying to all same sex couples as long as the
Strawser case is before Judge Granade. Thus, Strawser could require Judge Davis not only to
issue the four marriage licenses to the Plaintiffs in that case but also to all similarly situated same
sex couples who also apply for a marriage license in the future.
Second, this Court should also consider this issue in a broader context. As the above facts
make clear, if Judge Davis refuses to issue a marriage license to a same sex couple, the federal
court can issue such an order after the cases are filed in federal court. Thus, Judge Davis must at
that time issue the marriage license to the same sex couple. Further, due to the breadth of Judge
Granades Order, a Plaintiff could argue that Judge Granades Order protects not merely the
plaintiffs in Strawser but all other similarly situated same sex couples who come before Judge
Granade later in Strawser so long as Judge Granade has jurisdiction over the case. Further, if
Judge Davis refuses to issue a marriage license to a similarly situated same sex couple, Judge
Granade could find that Judge Davis has willfully violated the federal courts orders and hold
him in contempt, order a monetary penalty and/or award monetary damages or attorneys fees to
the new couple.
This Court has perhaps recognized that Judge Davis is in such a unique position that he is
not now under this Mandamus Order of this Honorable Court:
There are other issues that presently are not known as they relate to future orders of this
Court. For example, if this Court required Judge Davis to vacate the marriage licenses issued to
the other same sex couples who did not appear before Judge Granade, this order might have a
further implication regarding the almost certain 1983 claims with attendant damages relating to
this unique category of plaintiff.
In conclusion, the complicated and serious consequences to Judge Davis, the citizens of
Mobile County and families throughout the state are too great to respond adequately in less than
48 hours.
RESPECTFULLY SUBMITTED,
/S/LEE L. HALE
LEE L. HALE
lee.hale@comcast.net
501 CHURCH STREET
MOBILE, AL 36602
(251)433-3671
/S/MARK S. BOARDMAN
mboardman@boardmancarr.com
TERESA B. PETELOS
tpetelos@boardmancarr.com
CLAY R. CARR
ccarr@boardmancarr.com
BOARDMAN, CARR, BENNETT, WATKINS
HILL & GAMBLE, PC
400 BOARDMAN DRIVE
CHELSEA, AL 35043
(205)678-8000
/S/J. MICHAEL DRUHAN, JR.
mike@satterwhitelaw.com
HARRY V. SATTERWHITE
harry@satterwhitelaw.com
SATTERWHITE, DRUHAN, GAILLARD &
TYLER, LLC
1325 DAUPHIN STREET
MOBILE, AL 36604
(251)432-8120
End Notes
1.The final procedural issue we consider is whether the federal court's order prevents this Court
from acting with respect to probate judges of this State who, unlike Judge Davis in his
ministerial capacity, are not bound by the order of the federal district court in Strawser.
The answer is no. (Emphasis supplied) p.73 Mandamus Order
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CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of March 2015, I electronically filed the foregoing
with the Clerk of the Court using the ACIS system which will send notification to the following:
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7447
smclure@ago.state.al.us
Matthew D. Staver
Horatio G. Mihet
Roger K. Graham
LIBERTY COUNSEL
Post Office Box 540774
Orlando, FL 32854
Phone: (800) 671-1776
mstaver@LC.org
court@LC.org
hmihet@LC.org
rgannam@LC.org
Eric Johnston
Suite 107
1200 Corporate Drive
Birmingham, AL 35242
Phone: (205) 408-8893
eric@aericjohnston.com
Samuel J. McLure
The Adoption Law Firm
Post Office Box 2396
Montgomery, AL 36102
Phone: (334) 612-3406
sam@theadaptionfirm.com
Jeffrey M. Sewell
French A. McMillan, LLC
1841 Second Avenue N., Suite 214
Jasper, AL 35501
Phone: (205) 544-2350
jeff@sewellmcmillan.com
French@sewellmcmillan.com
G. Douglas Jones
Greg Hawley
Chris Nicholson
Jones & Hawley, PC
2001 Park Pl Ste. 830
Birmingham, AL 35203
Phone: (205) 490-2290
ghawley@joneshawley.com
cnicholson@joneshawley.com
djones@joneshawley.com
Kendrick E. Webb
Jamie Helen Kidd
Fred L. Clements
Webb & Eley, P.C.
Post Office Box 240909
Montgomery, AL 36124
Phone: (334) 262-1850
kwebb@webbeley.com
jkidd@webbeley.com
fclements@webbeley.com
Robert D. Segall
Copeland, Franco, Screws & Gill, P.A.
P.O. Box 347
Montgomery, AL 36101
Phone: (334) 420-2956
segall@copelandfranco.com
Thomas T. Gallion
Constance C. Walker
Haskell Slaughter & Gallion, LLC
8 Commerce Street, Suite 1200
Montgomery, AL 36104
Phone: (334) 265-8573
ttg@hsg-law.com
ccw@hsg-law.com
Tyrone C. Means
H. Lewis Gillis
Kristen J. Gillis
MEANS GILLIS LAW, LLC
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dean@ldjpc.com
J. Stanton Glasscox
Glasscox Law firm, LLC
Post Office Box 2646
Birmingham, Alabama 35201
stan@glasscoxlaw.com
Samuel H. Heldman
The Gardner Firm, PC
2805 31st NW
Washington, DC 20008
sam@heldman.net
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