On September 11, 2014, two men, married in their church but not allowed to marry under Alabama law, filed this lawsuit in the U.S. District Court for the Southern District of Alabama, under 42 U.S.C. § 1983, against the State of Alabama. Plaintiffs had applied, unsuccessfully, for a marriage license in Mobile County, Alabama. They initially represented themselves without lawyers. Later, the National Center for Lesbian Rights, Southern Poverty Law Center, ACLU of Alabama Foundation, Americans United for Separation of Church and State, and a private lawyer joined as counsel. Plaintiffs argued that Alabama's ban on same-sex marriage was unconstitutional because it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
On January 26, 2015, the District Court (Judge Callie V.S. Granade) entered a preliminary injunction. It prohibited the Alabama Attorney General from enforcing the Alabama laws that ban same-sex marriage. Judge Granade adopted the reasoning from Searcy v. Strange (PB-AL-0005 in this Clearinghouse), decided just three days earlier, in which she had held that Alabama's laws banning same-sex marriage were unconstitutional because they violated the Due Process Clause and the Equal Protection Clause. As in Searcy, the court stayed the injunction until February 9, giving the defendant time to seek a further stay pending appeal before the U.S. Court of Appeals for the Eleventh Circuit.
On February 3, 2015, the Eleventh Circuit sua sponte consolidated the appeals in this case and in Searcy and denied the Alabama Attorney General's motions for a stay pending appeal. In response, the Attorney General filed an application for stay with U.S. Supreme Court Justice Clarence Thomas, the Circuit Justice for the Eleventh Circuit. Judge Granade denied plaintiffs' request to lift the stay on February 4, 2015.
Late on February 8, 2015, with Judge Granade’s stay set to expire, the Chief Justice of the Alabama Supreme Court, Roy Moore, sent an order to probate judges and state employees, threatening them with legal action by the governor if they issued or recognized same-sex marriage licenses. The Chief Justice claimed that the Searcy and Strawser orders bound only the Alabama Attorney General and his employees and not Alabama's probate judges.
On February 9, 2015, the U.S. Supreme Court denied the application for stay, with Justice Clarence Thomas, joined by Justice Antonin Scalia, dissenting from the denial. Strange v. Searcy, 135 S. Ct. 940 (2015). As a result, the Judge Granade’s orders in Strawser and Searcy took effect: the ban on same-sex marriage was now illegal in Alabama, at least according to the federal courts. Alabama's probate judges faced competing orders: Judge Granade’s orders in Searcy and Strawser would allow same-sex marriage, but Chief Justice Moore's would not.
The result was legal chaos. Some probate judges followed the federal court order and issued same-sex marriage licenses but most probate judges refused and many ceased issuing marriage licenses entirely. In the plaintiffs' county, Mobile County Probate Judge Don Davis refused to issue any licenses that day.
On February 10, 2015, Judge Granade granted plaintiffs' motion for leave to file an amended complaint, which added Probate Judge Don Davis as a defendant and also added, as plaintiffs, three other same-sex couples seeking marriage licenses from Mobile County. In addition, the district court scheduled a hearing, in two days' time, on plaintiffs' proposed injunction, which would prevent the defendants from enforcing Alabama's same-sex marriage ban.
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. 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." See In Re: King (PB-AL-0009
in this Clearinghouse).
The next day, on February 12, 2015, Judge Granade held a hearing and then issued an order, declaring the Alabama laws prohibiting same-sex marriage to be unconstitutional, and enjoining Probate Judge Don Davis from refusing to issue marriage licenses to the plaintiffs in this case. Strawser v. Strange, 44 F. Supp. 3d 1206 (S.D. Ala. 2015). In response, that afternoon, Mobile County began issuing same-sex marriage licenses.
On February 15, 2015, Jefferson County Probate Judge Alan King filed a motion for leave to intervene in this case. The probate judge argued that the conservative groups were using their state court petition to thwart the district court's January 26 order.
On February 17, 2015, the plaintiffs filed an emergency motion to enforce the January 26 order. They asked the district court to force the Alabama Attorney General to comply with the January 26 order by using his authority to dismiss the conservative groups' petition in the Alabama Supreme Court. The Attorney General had this power, the plaintiffs argued, because the conservative groups had filed as "relators," purportedly on behalf of the state. Probate Judge Alan King made a similar motion.
On February 20, 2015, Judge Granade denied Probate Judge King's request to intervene, because, the court held, Judge King did not have a legally recognizable interest in the lawsuit's subject matter. The court also denied King's and the plaintiffs' motions seeking to compel the state Attorney General to have the conservative groups' state court petition dismissed.
On March 3, 2015, the Alabama Supreme Court, responding to the petition filed In Re. King, declared that the Alabama law prohibiting same-sex marriage did not violate the Constitution. The Alabama Supreme Court also enjoined Alabama's probate judges from issuing marriage licenses to same-sex couples, claiming that Distrcit Court decisions on the constitutionality of laws wasn’t binding on Alabama courts, and that’s Judge Granade’s injunctions applied only to the parties in Strawser and Searcy. 2015 WL 892752
Mobile County Probate Judge Don Davis, however, was under a February 12 federal injunction in this case, which forbid him from refusing to issue marriage licenses to the plaintiffs. Because of the conflicting injunction, the probate judge asked to be dismissed from the state action. The Alabama Supreme Court refused. Instead, the Alabama Supreme Court ordered him, by March 5, to advise it on whether there was a true conflict. The Alabama Supreme Court implied that there was no conflict if the February 12 federal injunction required Probate Judge Davis to issue licenses just to the plaintiffs in Strawser. Following the Alabama Supreme Court's decision, Mobile County stopped issuing marriage licenses entirely.
Back in this case, on March 12, 2015, Judge Granade ordered Probate Judge Davis to respond to the plaintiffs' motion for leave to file an amended complaint (adding more parties), certification of plaintiff and defendant classes (as plaintiffs, all same-sex couples seeking to marry in Alabama and as defendants, all Alabama probate judges), and a preliminary injunction. Judge Granade later ordered the Alabama Attorney General to respond as well. On March 16, 2015, Judge Granade denied Probate Judge Davis's motion to stay the February 12 injunction against him.
On May 21, 2015, Judge Granade granted class certification for both the plaintiff and defendant classes. The plaintiff class was defined as: All persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages. And the defendant class was defined as: "All Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages." 307 F.R.D. 604.
In a separate order on that same date, Judge Granade issued a preliminary injunction prohibiting all members of the defendant class from refusing to issue marriage licenses solely because the couple asking for a license is of the same sex. In her order, Judge Granade specifically forbade the probate judges from following the contrary order from the Alabama Supreme Court. She stayed her injunction, however, pending the resolution of Obergefell v. Hodges, a case before the Supreme Court where the justices would consider whether the constitution provided a right for same-sex couples to marry.
On June 26, 2015, the Supreme Court ruled on Obergefell v. Hodges. 135 S. Ct. 2584 (U.S., 2015). The Court held that the right to marry is fundamental, and that the 14th Amendment does not allow states to ban same-sex marriages. In response, Judge Granade lifted her stay, and the preliminary injunction requiring Alabama Probate Court to issue marriage licenses to same-sex couples went into effect.
On July 17, 2015, the Alabama Attorney General’s Office asked the Eleventh Circuit to dismiss Alabama's appeal, and to instruct Judge Granade that the final judgment in Searcy, which permanently enjoined the Alabama Attorney General from enforcing the Alabama Laws prohibiting same-sex marriage, rendered moot the Strawser plaintiffs’ request for a permanent injunction against the Alabama Attorney General. On August 20, 2015, the Eleventh Circuit agreed to dismiss the appeal, but refused to issue the instructions that the Alabama Attorney General’s Office had asked for, finding that the question of whether the Strawser plaintiffs’ request for a permanent injunction was moot was properly left to Judge Granade in the first instance.
On October 20, 2015, the Eleventh Circuit responded to a separate set of appeals from June 2015, by Alabama Probate Judge Tim Russel. The Court of Appeals found that Russel’s appeal of Judge Granade’s order denying his motion to dismiss on April 23, 2015, and his appeal of her preliminary injunction requiring him to issue same-sex marriage licenses on May 21, 2015, were moot because the Alabama Supreme Court’s order requiring Probate Judges to follow the Alabama Laws prohibiting same-sex marriage was overturned by Obergefell.
Separately, on January 6, 2016, then Alabama Chief Justice Roy Moore issued an administrative order telling Alabama probate judges that, contrary to Strawser, Searcy, and Obergefell, they still had a duty to follow the Alabama laws prohibiting same-sex marriage and not issue marriage licenses to same sex couples. As a result of this order, the Alabama Judicial Inquiry Commission filed charges against Roy Moore on March 4, 2016. 2016 WL 859009. Under Alabama law, Moore has been suspended from his position pending the results of his hearing before the Alabama Court of the Judiciary, which is scheduled for August 8, 2016. (If the Court of the Judiciary rules against Chief Justice Moore, it will be the second time that he is suspended and then removed from his position as Alabama Supreme Court Chief Justice. The previous suspension occurred in 2003, when he placed a statue of the Ten Commandments in front of the Alabama Supreme Court’s building and then failed to comply with a federal injunction ordering him to remove it.)
On June 7, 2016, Judge Granade again declared the Alabama laws prohibiting same-sex marriage unconstitutional, and granted plaintiffs a permanent injunction requiring Alabama Probate Judges to issue same-sex marriage licenses. On June 15, plaintiffs asked for an additional permanent injunction against the Attorney General of Alabama, which would be enforceable by the plaintiff class. They argued against the Alabama Attorney General’s position that the injunction granted in Searcy made an additional permanent injunction unnecessary, noting that the injunction issued in Searcy wouldn’t be enforceable by the plaintiff class in Strawser. As of June 23, 2016, Judge Granade has not yet decided whether to grant this additional relief, nor has she decided whether to grant them the attorneys’ fees and costs that they have asked for.Megan Dolan - 05/24/2015
Carolyn Weltman - 02/25/2016
Ryan Berry - 06/28/2016