Thoughts in a Haystack

I thought it was "As stubborn as a Missouri mule." Well, maybe we can make it "As stubborn as an Alabama ass"!

There has been, as they say, "developments" in the Alabama same-sex marriage situation. On Thursday afternoon, February 12th (Darwin Day!), Judge Callie V. S. Granade, after some technical legal maneuvering that I won't bore you with, made an Order imposing a Preliminary Injunction requiring Probate Judge Don Davis of Mobile County to issue marriage licenses to same-sex couples. Judge Davis, facing possible contempt citations, wisely complied promptly and some licenses were issued by the end of the day and marriages held.

More importantly, at the time of the hearing, only 23 of the 67 counties in Alabama were issuing same-sex marriage licenses. The majority of the rest were either not issuing any licenses or giving same-sex couples applications but refusing to process them. By late today, as the New York Times reports ("U.S. Orders Alabama to License Gay Unions"), all but 15 counties have begun issuing same-sex licenses or said they will begin to do so early next week.

Funny how that conservative icon, "the rule of law" thingie, works.

But (or is that "butt"?) here's where the asses come in. According to al.com ("While most Alabama counties now issue marriage licenses to same-sex couples, holdouts prepare for legal battle"):

At least eight probate judges still refuse to issue marriage licenses to same-sex couples, and have no plans to start. Mat Staver, founder and chairman of the conservative group Liberty Counsel, said his organization has agreed to represent those eight probate judges if they face lawsuits. One of the probate judges represented by his organization is Nick Williams of Washington County.

"We believe the order only applies to Mobile County and not to other counties in the state," Staver said.

Staver said Granade's rulings only apply to the Southern District of Alabama, where she presides as judge. It would take a ruling by the Alabama Supreme Court, the United States Court of Appeals for the Eleventh Circuit or the U.S. Supreme Court to overturn the state's ban on same-sex marriage, he said. The Court of Appeals and U.S. Supreme Court already denied requests to extend the stay on Judge Granade's original decision.

Now they have a point. Federal District Court decisions are only binding precedent within their district. Kitzmiller v. Dover, rightfully famous as it is, only barred the teaching of Intelligent Design Creationism in public schools in the Middle District of Pennsylvania.

They have a little problem, though ... the Southern District of Alabama includes Montgomery, the state capitol (which, of course, is why the plaintiffs brought it there).

In the Times article linked above, Ronald Krotoszynski, a professor at the University of Alabama School of Law, puts it nicely:

... Chief Justice Moore's legal position had some merit, but ... "it takes a kind of willful blindness to seriously make this argument." He pointed out that the decision of the higher courts to refuse the stay requested by the State of Alabama showed how they would have most likely ruled had the case been appealed.

"There's a technical argument that her order and her opinion are not binding on state court judges or state executive officers," Professor Krotoszynski said of Judge Granade's ruling, "but they would be binding before you can say 'Jehoshaphat' if someone named a state court official or state executive officer as a defendant in another suit."

That "state court official" would, of course, be Roy Moore and the "state executive officer" would be Gov. Robert J. Bentley, who has been desperately trying to stay out of this by saying, despite Moore's order that placed the onus on the Governor to enforce it, that he wouldn't take any action against probate judges, whether or not they issue same-sex marriage licenses.

Here's where the rubber meets the road. I'm sure that Moore would relish his "martyrdom" if he was held in contempt (again) by a Federal court ... especially if he was once (again) removed from the Alabama Supreme Court ... his speaking fees on the Religious Right rubber chicken circuit would, no doubt, increase exponentially.

But Bentley could find himself between the rock of the wingnuts and the hard place of the business interests who want no part of this echo of Alabama's past ... the same position that Jan Brewer of Arizona found herself in not long ago over Arizona's irrational immigration legislation, that she was forced to veto, no doubt to her political disadvantage. That has always been the problem with the Republicans dependence on the religious right as their base ... the hardest thing about riding a tiger is the dismount.

As I said before, the best thing to do now, for us folks fortunately unaffected, is to heat up the popcorn popper, crack open a beer and settle back to watch the show.