Alabama’s End Game

It’s not surprising that Alabama would put up a fight against equal rights to marriage under the law, but the U.S. Supreme Court’s refusal to grant a stay to a federal district court’s ruling upholding the freedom to marry, despite Alabama Chief Supreme Court Justice Roy Moore instructing probate judges to continue refusing marriage licenses to same-sex couples, signals the end game. What’s surprising is that things haven’t become even uglier in the Deep South. One can only hope that live and let live with equality under the law is soon seen as the right thing to do by all sides.

More. A statement from Alabama Gov. Robert Bentley says that while he is disappointed the U.S. Supreme court did not stay the district court ruling, he will not take action against probate judges:

“This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

“We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”

The statement is vague, but the Washington Post reports that it means Bentley won’t take action against probate judges who do or do not issue marriage licenses.

Yes, it’s about over. And Judge Moore’s stance, invoking memories of opposition to federal court rulings on desegregation, seems to have backfired. Changing times, indeed.

38 Comments for “Alabama’s End Game”

  1. posted by Mark Peterson on

    I didn’t realize Alabama had a “live and let live” policy, even outside of marriage. It’s my understanding in the state (just as in every other Southern state, outside a handful of cities), it’s currently legal for businesses to fire people just because they’re gay; for public accommodations of all types to deny service to customers just because they’re gay; and and for landlords to refuse to rent apartments to people just because they’re gay. I don’t see that legal framework as one of “live and let live,” unless the principle is the same as tolerating discrimination.

    • posted by Mike in Houston on

      “Live and let live on all sides” for Stephen means LGBT people wait patiently for our civil rights and not say or do anything to potentially or actually discomfit “Godly Christian Folk Already Reeling from Evil Progressive Persecution™” because our temerity of demanding civil equality.

    • posted by Houndentenor on

      It’s typical of the Entitled to invoke the “live and let live” cliche. What they really mean is that they don’t want to be criticized for their bigotry. Alabama has no such culture but white heterosexual Christians there no doubt think they do. Let’s ask gay people or minorities there if that’s true.

    • posted by Jorge on

      “What’s surprising is that things haven’t become even uglier in the Deep South. ”

      “it’s currently legal for businesses to fire people just because they’re gay”

      Evil is not always ugly.

      Still, I wonder what their anti-gay hate crime rate is compared to more uncivil and disobedient places.

  2. posted by Tom Scharbach on

    The Birmingham News has a summary of the situation as of day’s end. Of Alabama’s 67 counties, 9 are issuing marriage licenses to both straights and gay/lesbians, 12 are issuing licenses to straights-only, and 46 are issuing no licenses at all.

  3. posted by Tom Scharbach on

    The shit has just hit the fan.

    Earlier today, the lawyers in the Searcy case filed a motion to require Mobile County Probate Judge Don Davis to issue marriage licenses. The District Court denied the motion, on the grounds that Judge Davis was not a party to the case. However, the court indicated that a party damaged by Judge Davis’ failure to comply with the court’s injunction in the Searcy case could sue for damages and other relief.

    The Searcy lawyers filed a complaint this evening under 42 USC Section 1983 alleging that Judge Davis and six other named defendants, including Governor Bentley, AG Strange and Chief Justice Moore, violated the 14th Amendment rights of the 16 named plaintiffs are denied the right to marry by the defendants. The lawsuit seeks injunctive and “other relief”, which means damages.

    Section 1983 is serious business under federal law, and could result in personal liability for damages on the part of the Governor, AG and Chief Justice. Monetary penalties can run as high as $500,000 per violation, and higher if actual damages exceed $500,000.

    Playing nice is over in Alabama. It is about time, too.

    • posted by craig123 on

      Mind in the sewer, much? . A person is judged by their language, and we can see where you’re at.

      And for all those who try oh so hard to misconstrue what Stephen is saying, it was, obviously not that Alabama has a live and let live philosophy, but that it would be a better world if both sides did. But what’s the point it noting the obvious to lefty ideologues.

      • posted by Tom Scharbach on

        Snort. You drunk again, Craig?

      • posted by Houndentenor on

        No what’s clear is that Stephen is divorced from the reality of the religious right. Perhaps he should spend some time in a small town in Mississippi and Alabama and learn what it’s really like there. He obviously doesn’t know.

        • posted by Mike in Houston on

          And Stephen is no doubt cheering that Governor Brownback in Kansas just deleted sexual orientation and gender identity from the state EEO executive order… because, civility.

          • posted by Tom Scharbach on

            Brownback (and any government official planning to fire an employee based on sexual orientation) had best read Romer before acting. I can smell an open and shut Section 1983 action in the making.

    • posted by Tom Scharbach on

      Judge Granade scheduled a hearing on the matter for Thursday, February 12, at 1:00 PM. I can’t wait to see how Governor Bentley and Chief Justice Moore respond. The wriggling is at hand.

    • posted by Jorge on

      Section 1983 is serious business under federal law, and could result in personal liability for damages on the part of the Governor, AG and Chief Justice.

      Oh, goodie! I haven’t heard a good story about that in a while. All I’ve been reading about lately is police officers who are untouchable in court because they reasonably believed they were applying the law.

  4. posted by Tom Scharbach on

    “This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

    Governor Bentley’s formula cuts both ways — he will take no action against Probate Judges who elect to comply with the orders of the federal courts and he will take no action against Probate Judges who elect to defy the orders of the federal courts. In short, he is taking no position at all on the issue of state compliance with the orders of a federal court.

    “We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”

    So what is “the rule of law”? Right now, in Alabama, there is no “rule of law” to follow. At best there are two conflicting and irreconcilable versions of “the rule of law”, one of which is at odds with long-settled law concerning the supremacy of the federal constitution over state constitutions/laws.

    Governor Bentley is hanging the Probate Judges out to dry, left to face a Hobson’s choice, facing serious sanctions if they elect to follow Chief Justice Moore down the road of defiance, without guidance from the Governor.

    I’ll grant you that the Governor’s statement signals that he will not lead Alabama down the path of open rebellion after the legal dust settles, and that is a good thing But his statement also signals that until the last ditch, he will tolerate legal chaos created by an order of Chief Justice Moore that all reputable legal scholars consider dubious at best, and offer no leadership at all to the citizens of his state.

    Alabama deserves better from the Governor. If you doubt that, think, for a second, about how Governor Bentley’s response differs from the responses of other Governors faced with an identical fact situation in recent months.

    You observed “What’s surprising is that things haven’t become even uglier in the deep South.” We might see that come yet, if Governor Bentley continues to trod down the path he his trodding.

  5. posted by Tom Scharbach on

    And Judge Moore’s stance, invoking memories of opposition to federal court rulings on desegregation, seems to have backfired.

    Backfired how? Tony Perkins, who drafted the Republican Party 2012 platform language on “social issues”, made an astute observation last night:

    “Politicians in other states may roll over and play dead as the federal courts trample their laws, but not Alabama! There’s an organized resistance developing in the Deep South, and it might just be the turning point on marriage that many Americans have been waiting for. … Minutes after the U.S. Supreme Court gave the green light to issue wedding licenses in Alabama, most probate offices started turning down license requests. From Marshall, Franklin, and Lawrence Counties to Jackson, Tuscaloosa, and Dekalb Counties, dozens of judges sent couples home empty handed. Caught between the state’s courts and a federal judge, most offices are issuing their own stay.”

    Perkins may be whistling in the dark about the outcome, but the situation in Alabama is not inconsequential. It is a direct challenge to the supremacy of the federal Constitution as the law of the land. Chief Justice Moore embarked on a path of open definance of the supremacy of the federal constitution.

    And it produced results, albeit short term results. As of last night, all but a dozen of the state’s counties refused to issue marriage licenses to gays and lesbians. We all know that will change during the course of the next days and weeks, collapsing upon itself as the Probate Judges come to recognize the consequences of continued defiance, but Chief Justice Moore got the result he wanted — defiance and legal turmoil.

    He won’t prevail in the long run, but I can’t imagine that he thought he would. So I’m puzzled why you think his strategy backfired.

    • posted by JohnInCA on

      A strategy that only works in the short term is only a successful strategy if you only *care* about the short term.

      So unless Moore’s plan was just short term chaos and confusion, he’s probably failed.

    • posted by Mary on

      I can’t believe Tony Perkins is naïve enough to think the marriage issue isn’t settled at the national level. At this point the question is will the Supreme Court support it or leave it to the states to change their laws over the next few years legislatively. Conservatives have suffered a resounding defeat on the marriage issue. They need to accept this, wish the newly married same-sex couples well, and move on. Younger evangelicals are moving toward a pro-equality position, some elderly evangelicals are attending the same-sex weddings of their grandchildren (yes, that’s what I said. I’ve seen it at my church.) The “middle America” that conservatives are so fond of is watching lesbian talk-show hosts and accepting gay celebrities. Home shows are showing same-sex couples buying their first homes together. And people who enter professions that serve couples getting married will have to serve gay and lesbian couples too – as recent court decisions are showing. The defeat social conservatism experienced on gay rights issues of all kinds is so total that it’s hard to see how anyone could deny it. I’m starting to question the mental health of its leaders.

  6. posted by Houndentenor on

    It is dangerously naive to think that a political movement that has been rallying around their opposition to gay marriage as their cause célèbre would abandon that issue just because of a single court decision. I hope it is true that they will give this fight up in a week or two. I’m not optimistic about that especially since so many on the right are cheering them on.

    • posted by Tom Scharbach on

      It will shut down fast enough when individual Probate Judges start looking down the barrel of fines, damages (actual and punitive), and attorney’s fees.

      A number of Probate Judges are trying to hide behind the veil of issuing no licenses at all. I would suggest that they read the Supreme Court’s Prince Edward County decision, in which Justice Black had this to say about closing all public schools to evade desegregation, after noting the historic wide latitude in operating public schools:

      “But the record in the present case could not be clearer that Prince Edward’s public schools were closed, and private schools operated in their place with state and county assistance, for one reason and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.”

      I don’t know how long it will take for the house of cards to collapse. Three counties (Elmore, Limestone, Morgan) collapsed this morning. The rest will, too. It might be a few days, it might be a few weeks, or it might take longer. But it will collapse.

      • posted by clayton on

        Of course, a key difference here is that closing public schools will still allow private schools to operate, but closing public offices that issue marriage licenses does not allow private offices to continue operations. I’m certain that dozens–if not hundreds–of straight couples hoping to get married this month will be happy that Judge Moore and his followers decided that the solution to the problem is to forbid marriage to all, equally.

        • posted by Tom Scharbach on

          As ideas go, not issuing any marriage licenses at all is a dumb as a box of rocks. If the “no licenses” counties keep it up for more than a few days, enraged brides-to-be and their mothers are going to descend on the courthouses with pitchforks. Hell hath no fury, and all of that …

          • posted by Houndentenor on

            There are already news reports of couples upset that they can’t get their license and the date is set and relatives are coming in from out of town etc. With any luck this obviously bigoted tactic is going to blow up in their faces.

          • posted by Francis on

            I agree with the pitchfork assessment, but I would think boxes of rocks would have [i]slightly[/i] more sense!

  7. posted by Don on

    What never came out in Florida and many of the other states is continued opposition is racking up legal bills the state will have to pay. Forget punitive damages for section 1983. Every motion the plaintiffs write the winning attorney gets to bill for. It is costing small government conservatives millions and millions of dollars to lose these lawsuits. And all the money is going into LGBT orgs to launch more lawsuits for other things in the future.

    • posted by Tom Jefferson III on

      Maybe this is a silly question, but can a gay couple in Alabama (assuming residency and the like) simply travel to a different Alabama county probate judge ? I am not saying that this would excuse the discrimination, but gay couples seeking to tie the legal knot in Alabama must be thinking about that issue (short term)

      • posted by Tom Scharbach on

        Maybe this is a silly question, but can a gay couple in Alabama (assuming residency and the like) simply travel to a different Alabama county probate judge?

        Yes, they can, and quite a number did just that yesterday and today. In fact, one of the compliant Probate Judges called the Probate Judges in the surrounding non-compliant counties and said “Send them on over, I’ll issue the license and marry them on the spot.” And he did.

  8. posted by Tom Scharbach on

    For anyone who wants to follow county-by-county developments as the day goes on, the Birmingham News is tracking county status, updating as new information is available.

    Here’s the code:
    Green = Issuing licenses to straight and G/L couples
    Orange = Taking applications but not issuing licenses
    Yellow = Not issuing licenses
    Red = Issuing licenses to straight, but not G/L couples
    Gray = Not responding to inquiry

    As I write this 13 counties (up from 9 yesterday night) are now green, 10 are red, and the rest orange or yellow.

    • posted by Jim Michaud on

      Thanks Tom for providing the code for colors. I only knew green was the good color due to Jefferson County (Birmingham) being green. Why Alabama News didn’t provide it, I don’t know.

    • posted by Tom Scharbach on

      At 8 am this morning, 9 counties were marriage equality counties. As of 4 pm this afternoon, 19 counties are marriage equality counties. This morning, 10 counties were in open defiance of the federal court’s ruling, issuing licenses to straights but denying them to gays and lesbians. As of 4 pm this afternoon, only 9 are in open defiance. As of this morning, 43 counties were issuing no licenses at all. This afternoon the count is 37 counties. We’ll probably see further erosion tomorrow, as the “no license” counties start moving into the compliance category. By the end of the week, we’ll be down to the holdouts, I suspect, and it will be time to bring in the federal marshals.

  9. posted by Tom Jefferson III on

    Judge Moore is probably taking a stand because their are enough folks who will agree with what does to help fuel a book deal, lecture circuit and possible even a run for a partisan office (I wouldn’t be surprised if the Alabama Constitution Party or American Independent Party has made some inquiries)

  10. posted by Tom Scharbach on

    A quiet reminder: What we are seeing in Alabama is what we will see in every state in which government officials are granted a so-called “religious freedom” exemption to decline to perform marriages that offend them on religious grounds. Bills proposing such exemptions have been introduced, by my count, in seven states, with more to follow, I suspect.

    • posted by Jorge on

      Not much of a problem if the officials all corroborate to let people cross counties to get married.

    • posted by Mike in Houston on

      I suspect that we’ll also see other “roadblocks” put up in the name of “strengthening marriage” (aka, discouraging same-sex couples), like requiring all couples to wait 3 or more days, take mandatory relationship counseling, providing proof that they’re not already married to someone of the opposite sex, etc.

      The interesting “X” factor in this will be how they square “least burdensome” measures for one group’s “religious liberty” with the very real burdens placed (unnecessarily) on same-sex couples simply asserting their civil rights… for example, the burden of couples that have to travel to another county to get a service versus the impact on one individual.

  11. posted by Tom Scharbach on

    The AL[dot]com map does not appear to have been updated on a regular basis, but as near as I can tell, this is the status of Alabama counties as of mid-afternoon:

    Issuing to both Straight and G/L (23): Autauga, Bullock, Butler, Calhoun, Chilton, Coffee, Conecuh, Crenshaw, Dallas, Elmore, Etowah, Jackson, Jefferson, Lawrence, Limestone, Lowndes, Madison, Monroe, Montgomery, Morgan, Perry, Wilcox and Winston.

    Issuing to Straights but not G/L (18): Baldwin, Chambers, Clay, Cleburne, Covington, DeKalb, Escambia, Greene, Lee, Macon, Marengo, Pickens, Shelby, Sumter, St. Clair, Talladega, Tuscaloosa, Washington

    No licenses being issue (26): Barbour, Bibb, Blount, Cherokee, Choctaw, Clarke, Colbert, Coosa, Cullman, Dale, Fayette, Franklin, Geneva, Hale, Henry, Houston, Lamar, Lauderdale, Marion, Marshall, Mobile, Pike, Randolph, Russell, Tallapoosa, Walker

    What is fascinating about the list is that the number of both compliant and defiant counties is growing — the compliant up from 19 to 23 during the course of the day, and the defiant up from 10 to 18.

    We might see some additional movement tomorrow, after the hearing in Mobile. The Probate Judge in Mobile county is skating on very thin ice, because one of the couples he is not issuing a license to is a couple that was a plaintiff in the District Court lawsuit that brought marriage equality to Alabama. He has no legs to stand on at all, unlike other Probate Judges in the state, who can at least make some specious technical arguments.

    Governor Bentley continues to take the position that he has no position until the Supreme Court of the United States forces him to take a position, at which point he will comply with “the rule of law”.

  12. posted by Tom Scharbach on

    The Chairman of the Republican Party in Alabama has an interesting take on the current dispute:

    One of the basic truths that was revealed in the oldest of Scriptures is found in Genesis 1:27 where God created a man – Adam – and a woman – Eve. “So God created man in his own image, in the image of God he created him; male and female he created them”. Scripture then teaches that “a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh” (Genesis 2:24). This is God’s word. This is God’s truth. So, how is it that God’s truth can be turned on its head as the debate now rages in Alabama regarding the meaning of marriage? The answer is that we, as a society, have become our own god. We have made God in our image. But, God will not be mocked. The State of Alabama and the United States of America will reap God’s wrath if we embrace and condone things that are abhorrent to God, such as redefining marriage as anything other than a union between one man and one woman.

    Reading between the lines further down in the Chairman’s essay, I will be surprised if Governor Bentley does not face a serious challenge in the next gubernatorial Republican primary. should he run for re-election. How this will play out in the Republican presidential primary is anybody’s guess at this point.

    • posted by Jorge on

      My response to the “Adam and Eve, not Adam and Steve” argument is that God attempted to convince Adam into beastiality first.

      God ultimately created wo-man to answer a need. “It is not good for man to be alone.” The first marriage was not by God’s word. It was by man’s word.

      (In fact just about everything we know about Adam and Eve has them in some kind of tension with or disobedience to God. I for one, am glad they had the good sense to put some clothes on; I am very sorry God disagrees with me.)

      I am curious about what my take on this would be if I were a woman, but I don’t believe souls have sexes anyway.

  13. posted by Tom Scharbach on

    A legal note: A number of Probate Judges have made statements to the media indicating that they are awaiting guidance from the Alabama Supreme Court on the question of which order — the federal District Court order or Chief Justice Moore’s order — is binding upon them.

    The Liberty Council has now petitioned the Alabama Supreme Court, asking the court to issue a Writ of Mandamus “giving Alabama probate judges a clear judicial pronouncement that Alabama law prohibits the issuance of marriage licenses to same-sex couples”.

    If the Alabama Supreme Court issues the writ, the stage will be set for a constitutional confrontation over the Supremacy Clause, which will be most interesting.

  14. posted by Tom Jefferson III on

    Ah, and this all had to unfold during Valentines Day. ;0)

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