Alabama judge attempts to 'save face' in same-sex marriage license dispute

by Kimberly Pennington |

(REUTERS/Marvin Gentry)Supporters and opponents of same-sex marriage hold signs on the steps of Jefferson County Courthouse in Birmingham, Alabama February 9, 2015. Same-sex couples began marrying in Alabama on Monday despite an attempt by the conservative chief justice of the state's Supreme Court to block judges from issuing marriages licenses to gay men and women in open defiance of a January federal court ruling.

WASHINGTON (Christian Examiner) -- An attempt to "save face" is how Alabama Supreme Court Chief Justice Roy Moore interpreted a stay of action issued on May 21 by U.S. District Judge Callie Granade after she first ordered all probate judges in the state to issue marriage licenses to same-sex couples earlier this year.

"She knows she doesn't have the authority. That's why she issued the stay of her own order," Moore told Family Research Council President Tony Perkins on the May 22 broadcast of Perkins' Washington Watch program. "She's just trying to save face."

In response to a class action lawsuit filed by gay couples, Granade declared Alabama's same-sex marriage ban unconstitutional on May 21 and forbade all probate judges in the state from enforcing it, but she immediately placed a stay on her own order pending the outcome of U.S. Supreme Court rulings on same-sex marriage bans in four states expected in June.

The move follows a similar order by Granade earlier this year that resulted in same-sex marriage licenses being issued for three weeks until the Alabama Supreme Court ordered lower court judges to stop issuing the same-sex marriage licenses, Moore said.

In the case that might be confusing for most unschooled in legalease, Moore clearly outlined a situation where he said Granade lacked authority based on rules for when a federal injunction can be issued and how that involves state constitutional authority, and jurisdiction.

"[Granade] issued the same order earlier except it didn't apply to all the probate judges. She cannot issue an order to all the probate judges in the state of Alabama. I brought this out very clearly on February 8th of this year, and I told the probate judges they were bound by the constitution of Alabama not to issue same-sex marriage licenses, and that stopped what she was trying to do," Moore said. "What she tried to do, in my opinion, is try to tell these probate judges to issue same-sex marriage licenses when she knew she didn't have authority."

Moore said a federal court injunction can happen only when parties, agents, officers, servants, employees, or attorneys of parties act in concert with parties involved in a case.

With regard to Granade's ruling earlier this year, Moore said because Alabama probate judges are not under the attorney general, and there was no probate judge before her at the time of the ruling, she had "no authority to issue anything to any probate judge" at that time.

"Then the Supreme Court of Alabama came out about three weeks after I used my order, and they supported my decision, and that was a state court ruling on a constitutional issue, and the federal court has no right to contradict that and try to order the probate judges of all the state to obey her. Quite frankly, they don't have to obey her," he said.

Another problem with Granade's orders, according to Moore, has to do with jurisdiction. Granade only has authority over judges in her district and not the entire state, Moore said.

"On 10 March 2015 another federal judge, Keith Watkins, in the Middle District of Alabama said he was not bound by her order, and if he's not bound by her order, certainly no probate judge in that district [is] bound by her order. She had only jurisdiction over the Southern District."

While Moore did not comment on Granade's reason for her actions on May 21, he believes she recognizes the limits to her authority: "When I issued my order, actually the plaintiffs tried to file a complaint of contempt against one of the probate judges in the Southern District, and she herself recognized that she couldn't hold him in contempt because she hadn't given him any orders. He was not a party to her case. So basically she's recognized this principle that they have to be parties before her, and she only has authority over the probate judges in her district; and certainly all the probate judges in Alabama are not in her district," he said.

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