This post also appears on scotusblog.com
In the state where the law of same-sex marriage remains the most confused, an Alabama judge has asked the state’s highest court to get ready to promptly allow such marriages if the Supreme Court rules in their favor, avoiding “foot-dragging or other forms of resistance.”
Hinting at the state’s history of resistance to racial desegregation, and pleading for its future reputation, Probate Judge Steven L. Reed of Montgomery argued on Tuesday that the state judiciary “should make clear that it will not seek to delay the ability of Alabama citizens to exercise their constitutional rights as they are declared by the Supreme Court of the United States.”
Reed is one of sixty-eight probate judges in the state now under orders by the state supreme court to refrain from issuing any more marriage licenses to same-sex couples, based on that tribunal’s new ruling that the state ban on such marriages satisfies the federal Constitution. Reed made his plea in an application for the state supreme court to reconsider its ruling. While he made clear that he opposes that ruling, he did not ask that it be reopened and instead urged the state supreme court justices simply to make clear that their order against marriage licenses would be lifted promptly after a Supreme Court decision allowing such marriages under the Fourteenth Amendment.
The Supreme Court is scheduled to take up the constitutional issue at a hearing on April 28, and Judge Reed said it would be deciding the issue by this summer and added that it “seems likely that the Court will hold that couples do have that right.”
Reed, who sits in the state’s second-largest city, had been issuing marriage licenses based upon a ruling by a federal judge in Mobile, striking down the state’s ban. Other judges were doing the same, until the state supreme court ordered them to stop.
While a flurry of federal and state court rulings across the nation over the past twenty-one months have clarified the constitutionality of same-sex marriages, with most ruling in its favor, the situation in Alabama has moved steadily into deeper confusion. One federal judge has put on hold any ruling on the issue, and the federal judge who did strike down the ban is considering a plea to make her ruling effective statewide. The conflict with the state supreme court’s order is clear for the state judges who are now or may soon be covered by contradictory rulings.
The Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit both refused to postpone the federal judge’s ruling against the state ban. After that, the state supreme court, citing its own independent authority to interpret the federal Constitution, issued its ruling upholding the ban and ordering that it remain in force statewide.
Judge Reed told the state court that “many sophisticated legal observers” expect the Supreme Court to decide in favor of an equal right of same-sex couples to marry, and commented that its refusal to block the federal judge’s order on that issue “is seen by many as a strong clue suggesting such an outcome.”
If such a ruling comes down by the end of the Supreme Court’s current Term, the judge said, “it is a practical certainty that one or more such couples will apply” to him for a marriage license. The Alabama Supreme Court, he asked, should clear the way now for him to do so in that event. If it does not do so, he said, he could be put in “an untenable position” between a Supreme Court ruling and a state court order.
While he could, in that circumstance, ask the state court to lift its order, he said, that would cost money and result in delay, further complication, and the denial of declared constitutional rights to citizens of Montgomery County.
He suggested, “respectfully,” that “it is important for this court [the state Supreme Court] to demonstrate that Alabama is committed to the rule of law: that Alabama would not engage in foot-dragging or other forms of resistance to decisions of the Supreme Court of the United States about matters of constitutional rights.”