On February 9, 2015, the federal court orders in Searcy v. Strange (PB-AL-0005
in this Clearinghouse) and Strawser v. Strange (PB-AL-0010
in this Clearinghouse) took effect: Alabama's ban on same-sex marriage was now illegal, at least according to the federal courts. In response, on February 11, 2015, two conservative groups, the Alabama Policy Institute and the Alabama Citizens Action Program, filed an emergency petition in the Alabama Supreme Court, purportedly as "relators" on behalf of the State of Alabama. The petition sought a writ of mandamus ordering the state's probate judges "not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples."
On February 13, 2015, the Alabama Supreme Court ordered the respondents, the state probate judges, to respond to the petition, if they chose to, by February 18. Two justices dissented from this order.
On March 3, 2015, the Alabama Supreme Court granted the conservative group's petition for writ of mandamus. The Court's opinion enjoined Alabama's probate judges from issuing marriage licenses to same-sex couples. The Court permanently enjoined four probate judges, the named respondents, and temporarily enjoined all other probate judges except Mobile County Probate Judge Don Davis.
Probate Judge Davis was under a February 12 federal injunction, which forbid him from refusing to issue marriage licenses to the Strawser
plaintiffs. Because of the conflicting injunction, the probate judge asked to be dismissed from the state action. The Alabama Supreme Court refused. Instead, the Court ordered him, by March 5, to advise it on whether there was a true conflict. The Court implied that there was no conflict if the February 12 federal injunction required Probate Judge Davis to issue licenses only to the plaintiffs in that case.
On March 10, 2015, the Alabama Supreme Court added Probate Judge Davis as a respondent to the mandamus proceeding. This enjoined him from issuing any more same-sex marriage licenses.
Two days later, the Alabama Supreme Court enjoined all Alabama probate judges from issuing marriage licenses to same-sex couples. Montgomery County Probate Judge Steven Reed requested a rehearing. He asked the Court to amend its March 3 order so that it would become ineffective if the U.S. Supreme Court found same-sex marriages bans unconstitutional in Obergefell v. Hodges (PB-OH-0003
in this Clearinghouse), in which a decision is expected by the end of June 2015. On March 20, 2015, the Alabama Supreme Court denied Probate Judge Reed's rehearing request. If the plaintiffs win in Obergefell, the parties will have to come back to court and fight things out. David Hamstra - 04/15/2014