JURIST Guest Columnist Howard M. Wasserman of Florida International University College of Law discusses the intricacies of Alabama judiciary and their effect on same-sex marriage recognition describing the reasons behind Alabama judges’ stance on same-sex marriage issue…

Alabama has an unfortunate history when it comes to civil rights—George Wallace in the doorway, fire hoses and police dogs and massive resistance to integration. It thus is easy to view the past several weeks of confusion and controversy over same-sex marriage licenses through that historical lens, making Alabama Chief Justice Roy Moore into Wallace’s heir in bigoted disregard of the US Constitution and defiance of the federal judiciary.

It would be easy to do that, but it would be wrong.

The reality of this strange dispute is far more anodyne. It is about the nuances of civil procedure, federal jurisdiction and federal remedies, the realities of judicial enforcement of rights and the scope of judicial decrees in a hierarchical system. Whatever one thinks about marriage equality and the constitutional validity of bans on same-sex marriage, the judicial process actually has worked in Alabama roughly as intended and not in a way that, long-term, will deny anyone equal rights.

To understand this, we must understand precisely what has occurred in Alabama.

In late January, Judge Callie Granade of the US District Court for the Southern District of Alabama twice declared that Alabama’s constitutional and statutory bans on same-sex marriage violated the Fourteenth Amendment—in Searcey v. Strange, a second-parent adoption involving a female couple married in California, and in Strawser v. Strange, an action by several same-sex couples in Mobile seeking a marriage license. The sole named defendant in both actions was Alabama Attorney General Luther Strange, who was ordered not to enforce the state’s same-sex marriage bans.

In Alabama however, responsibility for issuing marriage licenses rests with probate judges, who are members of the judicial branch performing administrative tasks, not with the attorney general (the only person subject to any federal injunction) or any other executive-branch official. Moreover the attorney general lacks any supervisory authority with respect to judicial-branch officials, given state separation of powers concerns. Alabama thus presented a bizarre situation—the only state official subject to a federal injunction lacked the power to issue or order anyone else to issue marriage licenses to same-sex couples, but the state officials empowered to issue marriage licenses to same-sex couples were not required to do so by a federal injunction. Granade stayed her order for 14 days (until February 9) to work the situation out. The Alabama Probate Judges Association advised its members that they should not issue licenses to same-sex couples, because such licenses were prohibited by state law and no probate judge was subject to the federal order. Notorious Moore went one step further, asserting his authority as the chief administrative officer of the state courts to advise against and prohibit [PDF] probate judges from issuing licenses. He also took to the media to explain why same-sex marriage violated the laws of Alabama and God and why federal district judges lack the power to say otherwise.

On Monday February 9, the district court stay expired when both the US Court of Appeals for Eleventh Circuit and the US Supreme Court (over dissent from Justice Thomas, joined by Justice Scalia) refused to extend it. Thus same-sex marriage did come to Alabama, albeit haltingly. Within the first two days, probate judges in only 16 of the state’s 67 counties were issuing licenses. Meanwhile the Strawser plaintiffs added Probate Judge Don Davis of Mobile as a defendant, and on Thursday February 12, Granade extended her injunction [PDF] to Davis.

Following the injunction, probate judges in more (but not all) counties came around and began issuing licenses. Importantly however, none was compelled to do so by a federal order. In fact, Davis was formally obligated to issue licenses only to the plaintiffs in Strawser, but no one else—an injunction binds a named defendant to provide relief only as to the named plaintiffs. Of course, had he denied any other couple a license, that couple could intervene in Strawser or file a new lawsuit against Davis; either way, they would end up before Granade, who would then extend her injunction to require a license for these new plaintiffs. Similarly any couple denied a license by any other probate judge could file their own federal lawsuit against that probate judge and seek an injunction compelling issuance of the license. Moreover plaintiff couples who obtained injunctions could collect attorney’s fees as “prevailing part[ies]” in a constitutional action.

All of this was uncertain, inefficient and even ugly, with different marriage rules in different parts of the state. But this is how judicial decision-making works. Even when dealing with important social issues such as marriage equality and Equal Protection, a court really resolves only a discrete dispute between discrete, identified parties, producing an order that controls their rights, obligations and behavior as to one another. Granade could only order Davis to issue a license to the named plaintiffs; any other couples must obtain their own injunctions and any other probate judge only must act once she herself is enjoined. The declaration of the state marriage ban’s constitutional invalidity in the opinion accompanying Granade’s order primarily served as an explanation and justification for her order. The opinion affects the rest of the world only through its precedential force and the extent that it persuades or binds the next court to address a similar question by different parties. Decisions of federal district courts are not binding authority on any other court—state courts, other federal district courts or even courts within one federal district; at best, they persuade another court to adopt the same understanding of the Fourteenth Amendment and to order the defendant before that court to issue licenses to those plaintiffs.

But this also means it was not 1963 and we were not seeing Massive Resistance Redux. Probate judges who failed to issue licenses were not flouting the law or defying federal authority in not abiding by the single persuasive precedent of Granade’s decisions. Nor was Moore in advising and ordering probate judges that they were not obligated or bound by that precedent. It remained possible (if unlikely) that the next district judge might rule differently; public officials certainly could wait for that decision and a controlling federal court order before acting in a certain way. Once a federal order came, of course, the named probate judge became bound; had she continued to refuse to issue licenses, she then would have been defying a federal order. But that never seemed a real danger. Several probate judges indicated prior to February 9 that while they would not issue licenses on the strength of Granade’s decisions in Searcey and Strawser, they would comply with any eventual federal order directly obligating them to issue licenses. In other words, they were expressly disavowing any intent to defy valid, applicable federal court orders; they merely were awaiting those orders.

In the short term, this may produce the sort of Swiss cheese we witnessed in those first days and weeks in Alabama. But that is the reality of a geographically divided and hierarchical federal judiciary. The decisions of the lowest courts, which hear and decide cases first and quickly, have less sweeping effect than the decisions of higher courts, which may not come about for some time. In the longer term, with the US Supreme Court poised to resolve the marriage-equality question by the end of this term (arguments are slated for April 28), the Swiss cheese should not last overly long.

This equilibrium might have held till June, until a new procedural wrinkle entered the mix. In early March, the Supreme Court of Alabama, acting on the request of two private organizations, issued a writ of mandamus, prohibiting all probate judges not presently under a federal injunction from issuing licenses to same-sex couples. The stated purpose of the mandamus was to avoid the confusion and uncertainty of licenses being available in some parts of the state through some probate judges and not others, and to provide formal guidance to all judges; the mandamus ensured that, absent a federal order, no marriage licenses would be available to same-sex couples anywhere in the state. In a 134-page per curiam opinion [PDF], six justices held that the same-sex marriage ban was constitutionally valid and must be enforced, rejecting concerns about the organizations’ standing and the court’s own jurisdiction, contrary precedent from multiple lower federal courts and repeated signals from the US Supreme Court. This decision prompted a procedural counter-move, as the Strawser plaintiffs moved to amend [PDF] their complaint to certify the case as a class action on behalf of all same-sex couples seeking licenses against a defendant class of all probate judges; this action would produce a federal injunction requiring all probate judges to issue licenses to all same-sex couples who request them.

Contrary to some media descriptions, this exchange of moves did not set-up any sort of state-federal stalemate and showdown. The state court was clear that any probate judge subject to a federal injunction could show cause to be released from the mandamus, namely that she was under a federal injunction to issue licenses. At the time, that only meant Davis. But a class injunction would bind all probate judges who all could then show the same cause to be released from the mandamus and to resume (or begin) issuing licenses to same-sex couples. The result is that the mandamus will impose no legal or practical bar to plaintiffs seeking licenses or to the overall establishment of marriage equality in Alabama. Although couples must take extra procedural steps to obtain that broader injunction, they will be able to get marriage licenses, as well as attorney’s fees incurred in taking those extra procedural steps.

Back to Moore and recalcitrant state officials. We perhaps can criticize their behavior here. Moore is an inveterate grandstander and it is difficult not to believe that this at least partly underlies his actions and those of his fellow justices. This all seems a waste of time, effort and taxpayer dollars to force the plaintiffs to bring or amend these additional federal lawsuits, a “quixotic” (in the words of the New York Times) attempt to stop the inevitable. A cynic might argue that making same-sex couples go through all the procedural steps humiliates a despised group and was designed to do so.

But whatever Moore’s motivations and whatever the wisdom of his court’s legal analysis are, state officials are under no obligation to follow persuasive authority simply to save time for civil rights plaintiffs. There has been no “defiance” here, only an insistence on procedural regularity. Talking about Wallace and massive resistance is not only unhelpful, but also inaccurate.

Howard M. Wasserman is a Professor at Florida International University College of Law, where he teaches civil procedure, evidence, federal courts, civil rights and First Amendment; his scholarship focuses on the freedom of speech and on the role of procedure and jurisdiction in public-law and civil-rights litigation. He blogs at PrawfsBlawg and at Sports-Law Blog and is the Section Editor for the Courts Law Section of JOTWELL.

Suggested citation: Howard M. Wasserman, Crazy in Alabama: But Not for the Reasons Everyone Thinks, JURIST – Academic Commentary, Mar. 14, 2015, http://jurist.org/academic/2015/03/howard-wasserman-alabama-same-sex-marriages.php.