Rights Groups Seek to Resolve Alabama Marriage Question

A coalition of civil rights groups is seeking to resolve the question of same-sex marriage in Alabama, seeking class action status for a marriage equality suit brought by five couples and an order for all probate judges in the state to issue licenses to same-sex couples.

Americans United for Separation of Church and State, the American Civil Liberties Union of Alabama, the National Center for Lesbian Rights, and the Southern Poverty Law Center filed the motion in U.S. District Court in Mobile Friday, three days after the Alabama Supreme Court halted same-sex marriages in the state.

"If Alabama officials thought we were going to sit back and allow them to deny same-sex couples their constitutional right to marry, they thought wrong," said Ayesha N. Khan, legal director of Americans United, in a press release. "We are going to fight for these couples."

Class action status, the groups explain, would mean that the suit includes all same-sex couples in Alabama who wish to marry and have their marriage recognized by the state.

Their motion comes as part of a lawsuit brought by five same-sex couples in Mobile County who had sued over Probate Judge Don Davis's refusal to issue licenses. On February 12, U.S. District Judge Callie V.S. Granade ordered Davis to grant the licenses, then clarified that her order applied to all counties. She was the same judge who struck down the state's ban on same-sex marriage in January, ruling in two other suits, but when her decision went into effect February 9, some county probate judges (the officials responsible for marriage licenses in Alabama) were reluctant to go along with it.

Part of the resistance was due to the actions of Alabama Supreme Court Chief Justice Roy Moore, a staunch marriage equality opponent who had told probate judges not to grant licenses to same-sex couples and claimed the federal judiciary had no authority over marriage in the state. Nevertheless, couples began marrying statewide after Granade issued her February 12 order.

But the state Supreme Court intervened again Tuesday, ordering a halt to the issuance of licenses to same-sex couples by all probate judges, with the exception of those specifically named in Granade's January rulings. The court asked Davis to submit an opinion as to whether he was bound by Granade's February 12 order to issue licenses to all couples. Moore has contended it applies only to those five who were party to the suit against Davis. Davis was to present his case to the state high court last Thursday, but he has asked for an 11-day extension.

Meanwhile, Davis has also resisted processing second-parent adoption papers for the married lesbians who brought the lawsuit that resulted in Granade's first ruling striking down the marriage ban. The women have asked Granade to order Davis to process the adoption, but she has not yet made a ruling.

In an op-ed in Sunday's New York Times, University of Alabama law professor Ronald J. Krotoszynski Jr. commented that "the state court's position that it need not follow lower federal court rulings is technically correct" but threatens to create chaos.

"If State Supreme Courts followed the Alabama Supreme Court's lead, a system of dual courts simply would not work," Krotoszynski wrote. "The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts."