Today should be interesting; at 1:00 PM there is a hearing in Federal District court to determine if the court will issue an injunction against a Probate Court Judge ordering him to issue Civil Marriages licenses.
To recap the Federal District Court ruled Alabama Same-sex Marriage ban was unconstitutional (Link 1). A couple of days later a clarifying order was issued (Link 2). The State went to the 11 Circuit for a stay and it was rejected. Then they went to the SCOTUS and it was rejected. Some Probate Judges have been issuing licenses in accordance with the Federal Judge’s ruling, some have been issuing licenses only to different-sex couples, and some have refused to issue any licenses. Probate Judge Don Davis has been added as a named defendant (Link 3) and is the subject of the hearing today. Under Alabama Revised Statutes Title 30, Chapter 1, Section 9 (Link 4) Probate Judges are the only ones that can issue licenses and the law says they “may” (not that they “shall). Probate Judge Davis has already gone to the Alabama Supreme Court seeking assistance and they rejected him saying basically he was on his own (Link 5).
So it will interesting to see the outcome of today’s hearing for an injunction against Probate Judge Davis, here are the options I see:
Do nothing, which of course is always an option. I don’t see it happening where a Federal Judge is going to allow a lower court Judge to defy his or her order. But it could happen.
As the only official in the country that can issue Civil Marriage Licenses, the District Court Judge issues an injunction against Probate Judge Davis requiring him to reopen license issuing operations and that licenses will not be denied based on sex. If Probate Judge Davis continues to refuse (as now a named defendant in the case), then he will be in contempt of court and subject to sanction by the Federal District Court as well as possibly being personally required to pay court costs, lawyer’s fees, and damages to any couple (different-sex and same-sex) denied a license based on sex.
Reiterate that Alabama’s ban on same-sex marriage is unconstitutional but recognize that under Alabama Revised Statutes (30-1-9) that Probate Judges issuance of Civil Marriage Licenses is optional. Issue an injunction that says that Probate Judge Davis can continue to not offer Civil Marriage Licenses to anyone (different-sex and same-sex) in accordance with Alabama Code, but that if he does resume operations and issues licenses in a discriminatory manner, then he will be in contempt of court and subject to sanction by the Federal District Court as well as possibly personally being required to pay court costs, lawyer’s fees, and damages to any couple (different-sex and same-sex) denied a license based on sex.
Personally I kind of like Option #3 as it buts the ball squarely in the hands of Probate Judge Davis. He can continue not to issue Civil Marriage Licenses, but in doing so he will be rejecting what 95-97% of the licenses that would be issued (more inconvenience to different-sex couples) so as not to issue license to 3-5% of those requesting licenses. I wonder how long that action would last before the people would go to the legislature asking that the law be changed from “may” issue to “shall” issue removing the option from Probate Judges having optional duties.
#1 -->> https://docs.google.com/viewer?url=h...-and-order.pdf
#2 -->> 1:14-cv-00208 #65 Order Clarifying Judgment
#3 -->> https://www.documentcloud.org/docume...r-2-10-15.html
#4 -->> Code Of Alabama
#5 -->> Alabama Supreme Court punts on request for 'clarification' of Roy Moore's marriage order | AL.com