January 28, 2015 at 6:16 pm EDT | by Chris Johnson
Judge clarifies scope of order in Alabama marriage ruling
same-sex marriage, gay news, Washington Blade

A federal judge has clarified her ruling against Alabama’s ban on same-sex marriage.

Developments over the court decisions legalizing same-sex marriage in Alabama continue to unfold as the judge who ruled against the state’s marriage ban clarified on Wednesday the scope of her decision.

In a three-page order, U.S. District Judge Callie V. S. Granade, an appointee of George W. Bush, makes clear Alabama laws prohibiting same-sex marriage “are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.”

Attorneys for the plaintiff same-sex couple in the lawsuit had filed a request for the clarification after the Alabama Probate Judges Association issued a non-binding order saying the decision only applies to the plaintiffs and judges in Alabama are unable to give marriage licenses to same-sex couples.

In her clarification, Granade invokes the words of U.S. District Judge Robert Hinkle, who issued his own clarifying order following his decision against Florida’s ban on gay nuptials. Hinkle’s order was widely interpreted to mean all clerks in Florida are required under the U.S. Constitution to distribute marriage licenses to same-sex couples.

The Alabama decision had already been placed on hold until Feb. 9 as a result of a subsequent stay on her ruling, so same-sex couples won’t be able to marry in the state until that time.

James Esseks, director of the LGBT project of the American Civil Liberties Union, said Granade’s clarification demonstrates that her views are the same as Hinkle’s.

“The judge made clear precisely what Judge Hinkle made clear in Florida – that federal judges tell us what the law is and the rest of us have to follow the law,” Esseks said. “That’s how the rule of law works. We all disagree with some court rulings, but that doesn’t mean we can pretend they don’t exist.”

Adam Romero, senior counsel and Arnold D. Kassoy scholar of law at the Williams Institute, University of California, Los Angeles, said the clarification makes clear the decision wasn’t specific to plaintiffs in the case.

“If and when that decision goes into effect, any Alabama official that enforces the state’s bans on same-sex marriage are in danger of not only being hauled into Judge Grande’s court and added to the pending lawsuit, but also getting hit with the costs of doing so,” Romero said.

Granade first struck down Alabama’s ban on same-sex marriage in a decision last week, followed by another ruling this week in response to a lawsuit filed by another same-sex couple.

Meanwhile, the Southern Poverty Law Center announced on the same day it has filed an ethics complaint over a letter from Alabama Supreme Court Justice Roy Moore, which criticized the Granade ruling and urged Alabama judges not to comply with it.

Richard Cohen, president of the Southern Poverty Law Center, said Moore made the comments in anticipation of a gubernatorial bid in Alabama.

“It’s an open secret that Moore wants to run for governor again,” Cohen said. “And he’s wrapping himself in religion to get there in the same way that George Wallace used race to further his political career. In both cases, it’s the same thing – pure demagoguery.”

It’s not the first time Moore has sought to defy a federal court decision. In 2003, Moore in his capacity as Chief Justice of the Alabama Supreme Court refused to remove a monument of the Ten Commandments from the Alabama Judicial Building, prompting the Alabama Court of the Judiciary to unanimously remove him from his post. However, Moore sought re-election to the post in 2012, defeating Democrat Bob Vance to win back the position.

Cohen recalled in 2003, the Southern Poverty Law Center filed a complaint against Moore, which resulted in his removal from the bench.

“For the sake of all Alabamans who believe in the rule of law, we hope the result is the same this time,” Cohen said. “The people of Alabama elected Moore to be a judge not to be a pastor.”

In other states, developments in litigation seeking marriage rights for same-sex couples continued to unfold.

NEBRASKA — U.S. District Judge Joseph Battalion refused a request from the state to place a hold on litigation seeking marriage rights there for same-sex couples, saying claims by the state are “insufficient in light of the plaintiffs’ showing of serious, irreparable and immediate harm.” A hearing is set for Feb. 19.

SOUTH DAKOTA — South Dakota Attorney General Marty Jackley on Tuesday formally filed an appeal of a decision striking down the state’s ban on same-sex marriage to the U.S. Eighth Circuit Court of Appeals.

GEORGIA — The LGBT group Lambda Legal filed a brief on Tuesday before the federal court considering a case seeking marriage equality that acquiesces to the state’s request for a hold on litigation until the Supreme Court decides the issue.

The brief cites plans from state defendants to seek at least four months of discovery before proceeding with the case.

“Since Obergefell will likely significantly reshape the issues for discovery, and may decide this case, and given the discovery that Defendants believe is necessary, Plaintiffs believe that proceeding with the case before Obergefell is decided would not serve the interests of efficiency or judicial economy,” the brief says.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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