Tuesday, February 10, 2015


Who's That Man In the Door?

Why ... it's Judge Roy Moore standing in the courthouse door trying to stop same-sex marriage in Alabama!

Oh, wait a minute, maybe I'm mixing up my bigots!

It's been an interesting 24 hours in Alabama. As mentioned in my last post, a Federal District Court judge, Callie V. S. Granade (incidentally a George W. Bush appointee), ruled on January 23, 2015 that Alabama's ban against same-sex marriage and against recognizing same-sex marriages legally performed in other states violates the Fourteenth Amendment of the US Constitution. Judge Granade later granted a stay until February 9, 2015 of her ruling to allow the state to appeal and seek a further stay from the Eleventh Circuit Court of Appeal. Alabama's Attorney General sought that stay from the Circuit Court, which was denied. The Attorney General then, last week, petitioned the Supreme Court for a stay pending its decision in the Sixth Circuit's cases that it had granted certiorari on and which it should decide by the end of the term in June.

Moore had previously written an "advisory opinion" to all the probate judges (who handle issuance of marriage licenses in Alabama) telling them that they didn't have to obey the Federal Court order, a position that the attorneys for the Alabama Probate Judges Association had previously taken. In response to the APJA's statement, Judge Granade was asked to clarify her ruling which she did by quoting from the Federal judge in Florida ruling on a similar suggestion (which Florida officials, wisely, decided not to challenge):
As Judge Hinkle of the Northern District of Florida recently stated when presented with an almost identical issue:

History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees. ...

The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction.
In short, the District Court warned that there is a relatively easy way for people denied marriage licenses to enforce the court order against individual probate judges (and Judge Roy Bean Moore) and get all their legal costs back. Also, a government official who knowingly violates a well-known decision concerning the constitutionality of a law can lose his or her limited immunity and become personally liable for those damages.

The APJA quickly backed down, saying it was clear that probate judges would be required to issue marriage licenses to gay couples. But Moore is made of sterner stupider stuff.

By Sunday night, when the Supreme Court had still not acted, Moore upped the ante by issuing an order forbidding probate judges, who apparently fall under his jurisdiction as Chief Justice of the Alabama Supreme Court, from issuing same-sex marriage licenses or recognizing same-sex marriages from other states. Amusingly, after claiming he has jurisdiction over the probate judges, Moore stated that, if any of the judges disobey his order, "it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, ... to ensure the execution of the law." I'm not sure if Machiavelli would admire the low cunning of Moore or be appalled at his stupidity.

Anyway, on Monday morning the Supreme Court denied the stay, with Justice Thomas, joined by Justice Scalia, dissenting. Thomas got at least one thing right:
[T]he Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court's resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court's intended resolution of that question.
I think we all have seen that coming for quite some time, Justice Thomas.

Shortly after the Supreme Court decision, Gov. Robert Bentley, not wanting to be riding in the back seat as Moore once again plays "chicken" with the Federal courts, announced that he won't take any action against probate judges who issue licenses for same-sex marriages. This has resulted in a patchwork of availability of same-sex marriage licenses, with some of the state's largest cities — including Birmingham, Huntsville and Montgomery — issuing them but many other counties either refusing to issue them outright or temporizing because the probate judges are caught between the rock of the Constitution and the hard head of Roy Moore.

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.

Does this signal that it's going to be 7-2?

And Thomas and Scalia are going to be infamous as long as the Supreme Court is remembered?

Does this signal that it's going to be 7-2?

No, though I hold out hope for at least 6-3. The court does not release the actual vote but it had to be at least 5-4. Two other justices could have voted for the stay but chosen not to join in Thomas' dissent.

And Thomas and Scalia are going to be infamous as long as the Supreme Court is remembered?

IMHO they will probably be but not just for their role in SSM cases.
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