This month's Alabama Supreme Court order halting same-sex marriages applies to Mobile County Probate Judge Davis, justices ruled late Tuesday.
In its March 3 order, the court gave Davis time to show why the ruling affecting the other 67 probate judges should not apply to him. Davis responded that he was concerned that following that ruling would place him in the position of having to violate a federal court order.
The Supreme Court ruled that the probate judge's concern was "without merit" and ordered him not to issue any more licenses to gay couples.
Harry Satterwhite, an attorney for Davis, said Probate Court officials are trying to figure out how best to resolve a "damned-if-you do, damned-if-you-don't" situation.
"Judge Davis is going to try to follow the law," he said. "Obviously, you can't follow two masters. ... It's a very difficult position."
Probate Judge Don Davis ... ordered to halt same-sex marriage.
Davis had asked the court for an additional 11 days to file a response to the state Supreme Court and indicated that he had sought guidance from the Judicial Inquiry Commission, which investigates ethics complaints against Alabama judges and publishes advisory opinions.
"Our inquiry to Judge Davis was intended as a factual one," the justices ruled. "We fail to see what knowledge the JIC might have as to the facts regarding whether Judge Davis is bound by an order in any case other" than the case in which U.S. District Judge Callie V.S. "Ginny" Granade ruled that Mobile County must issue a license.
The justices wrote that Granade's order in that case applies only to the couples who had sued seeking marriage licenses.
"Further, Judge Davis has made no showing that the federal court order for which he seeks a stay is one that has not already been executed, i.e. , one that concerns any license other than those already issued to the plaintiffs in that case," the court ruled.
Latest wrinkle
Tuesday's ruling is the latest wrinkle in a dispute that has raged between state and federal judges since Granade struck down Alabama's ban on same-sex marriage on Jan. 23.
Granade delayed that ruling from taking effect for 14 days, but the U.S. Supreme Court refused to extend that delay. Alabama Supreme Court Chief Justice Roy Moore, on the Sunday before gay marriages were to begin, issued an administrative order instructing probate judges to follow state law.
Some judges complied, while others chose to follow federal law. Granade on Feb. 12 ordered Davis to issue marriage licenses to four couples who had been blocked since the beginning of that week.
By the following week, most probate judges were issuing licenses. But the Alabama Supreme Court ruled that judges should not issue licenses to gay couples until the U.S. Supreme Court rules later this summer on an appeal from an Ohio case that experts believe will resolve the same-sex marriage question once and for all.
It is believed to be the first time a state supreme court has challenged a federal court ruling on gay marriage.
Tuesday's ruling was 6-1, with Moore and Justice Mike Bolin not participating. He has said he recused himself on the matter to avoid the appearance of impropriety since he has spoken out on the issue.
Justice Greg Shaw dissented, as he did in the March 3 ruling, because he believes the issue was not properly before the court.
The issue comes down a question of whether Granade's Feb. 12 order applies more broadly than the four couples who had sued. The Jan. 23 ruling did not directly affect marriage licenses because the plaintiffs, Mobile residents Cari Searcy and Kim McKeand, already had been married in another state and were challenging Alabama's marriage law as it pertains to adoptions.
The justices quoted Granade's Feb. 12 ruling ordering him to grant "marriage licenses to plaintiffs" in the case. The opinion states that those plaintiffs were acting on their own behalf and not as part of a class action meant to apply to all gay couples.
"In the absence of a showing otherwise, we are left to read this language in accordance with its plain meaning: It grants injunctive relief against Judge Davis only as 'to [the] plaintiffs'" in the case.
Class action sought
Heather Fann, a Birmingham lawyer who represented the four gay couples whose suit prompted Granade's order to Davis, said she has added three additional couples to the suit and has asked Granade to certify it as a class-action complaint. The Alabama Attorney General's Office has argued that the plaintiffs have not met the threshold for a class-action suit.
"I don't know how anyone could be more similarly situated," Fann said in an interview.
Fann, who took the case on behalf of the National Center for Lesbian Rights, said she added Baldwin County Probate Judge Tim Russell as a named defendant and seeks an order that would explicitly apply to every probate judge in the state.
She said she believes Granade meant for her ruling to apply to more than just the four couples in the lawsuit. She said the circumstances surrounding this dispute are unusual.
"You don't necessarily find in cases like this such opposition that we have found," she said.
David Kennedy, an attorney who represented Searcy and McKeand, criticized an order compelling probate justices to enforce the "former Alabama definition of marriage." He said it "will directly run afoul of all the other court orders."
Kennedy said he believe it is clear that Granade's rulings apply to all state officials because she struck down the law that prohibited same-sex marriage.
"Beyond the injunction, the key point is that Alabama's ban on same-sex marriage has been held to be unconstitutional," he said.
Kennedy said all of the clients he represented either were married in other states or go licenses after Granade's Feb. 12 ruling. But he said the intervention by the state Supreme Court could call those unions into question.
"I do know the (March 3) ruling called them 'purported marriages,' which I find troubling," he said. "But I am not aware of any direct challenges to their marriages."
Tuesday's opinion notes that state law states that probate judge "may" issue marriage licenses and suggested that Davis could lawfully shut down his marriage license division until the U.S. Supreme Court decides the Ohio case.
"To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term 'marriage' in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion," the justices wrote.
Kennedy said gay couples who want to get married should file lawsuits in federal court and get rulings applying to different probate offices one by one.
"In theory, that is absolutely not necessary," he said. "In the real world, that may be the vehicle people need to travel."
Fann, the attorney for the National Center of Lesbian Rights, said she understands Davis is in a difficult situation.
"We do feel, obviously, that the better practice would be to the federal judge's ruling," she said. "However, we do have sympathy for judges placed in an untenable position."
Updated at 10:57 a.m. to include more details from the opinion and reaction from attorney David Kennedy, and at 12:31 p.m. to include comments from Fann.