Raising the stakes on the conflicting views of federal and state courts in Alabama over same-sex marriage, lawyers for seven couples on Friday asked a federal judge in Mobile to allow such marriages across the entire state. That runs directly contrary to a ruling by the Alabama Supreme Court, enforcing a statewide ban
Although a number of same-sex marriages have occurred under the Mobile judge’s earlier rulings, no new licenses have been issued since last Tuesday, when the state’s highest court told the officials who issue licenses in the state — county probate judges — to issue no more.
The state Supreme Court order currently applies to sixty-seven of the state’s sixty-eight probate judges, and it appears to be only a matter of days before it will be applied to all of them. The one judge still not technically covered is under an order by the federal judge in Mobile to issue licenses to at least a few same-sex couples, and under orders by the state supreme court to say why he, too, should not be enforcing the state’s ban.
That judge, Don Davis of Mobile County, took a number of legal steps on Friday to try to get some clarity on how he is to handle directly conflicting orders about licensing same-sex marriages. While that had the potential to escalate the federal-state conflict, it was quickly overshadowed in potential importance by the new lawsuit filed in the U.S. district court of Judge Callie V.S. Granade.
The new Mobile lawsuit was filed as a class-action claim that the state’s ban on same-sex marriage licensing and its ban on recognition of existing same-sex marriages violate the federal Constitution. It asked Judge Granade to order every probate judge in Alabama to issue marriage licenses to any and every same-sex couple who otherwise qualifies for marriage.
It was a claim under federal court Rule 23, which governs the practice of using just a few individuals on one side of a case, and just a few on the other side, to reach legal issues that are common across the board, without having everybody covered come into court. The few suing parties and the few sued parties must represent the interests of all those in their respective class, or group.
It is a more efficient way for a federal court to deal with large numbers of individuals in a more manageable legal proceeding. A resul of such a case can be to bind all of those in the class that is sued, and benefit all those in the class that sued.
If Judge Granade allows the class-action lawsuit to go forward, it almost certainliy would result in a ruling that same-sex marriage must be available across Alabama, in direct contradiction of the state’s ban.
Ultimately, if rhe class-action case proceeds, the federal-state struggle in Alabama might have to be resolved by the Supreme Court. That would be a delicate and difficult task. Under America’s dual system of independent federal and independent state courts — at least independent in their ability to interpret the federal Constitution — the Supreme Court would have to choose which was right.
The Alabama Supreme Court ruling on Tuesday was based on an interpretation of the federal Constitution, and it ruled that the state’s ban does not violate that national document, directly disputing the reasoning of Judge Granade in her earlier orders requiring a few marriage licenses to gay or lesbian couples.
The state court ruling could be subject, at some point, to direct review by the Supreme Court, which has the power to be the final arbiter on the Constitution’s meaning.
In the meantime, however, the jousting over the question appears likely to go on for weeks, and perhaps months, in Alabama. Perhaps it would ultimately be decided by what the Supreme Court concludes when it acts, later this year, on the four pending cases on the issue. Those cases come up for a hearing before the Justices on April 28.
(For new developments in other states on the issue, see the post below.)