Understanding the probate judges in Alabama – UPDATED
February 9th, 2015
Same-sex marriages are being conducted today in Alabama. But about half of the state’s counties have probate judges (an elected position which administers marriage licenses) who refuse to issue same-sex marriage licenses. They state that neither Alabama law nor any judicial ruling requires that they do so.
They are technically correct.
A very similar situation nearly occurred in Florida. There some county clerks were either uncertain as to their obligations or were playing games. And so Judge Hinkle issued a clarification in which he laid out the difference between the results of a lawsuit and the consequences of a constitutional ruling.
He noted that no clerk who has not been a party to a lawsuit is compelled to act as the result of a ruling. His order did not name them and so failing to act accordingly was not contempt of court.
However, he pointed out that something larger and greater than his ruling did compel them to act: the Constitution of the United States. And those who wanted to continue to act in defiance of the Constitution could be held liable for both the civil and financial consequences of doing so.
At that point, the Florida clerks took his direction and issued marriage licenses irrespective of gender.
Judge Grenade, in Alabama, used Judge Hinkle’s same wording in response to the same question. She noted that it was not her ruling but the Constitution that compelled equality.
But, unlike in Florida, probate judges have decided that (in the words of Washington County Probate Judge Nick Williams) they “aren’t worried about following the U.S. Constitution.”
So they are playing the “my name isn’t on that order” game. Being elected politicians in a state that does not value the Equal Protections clause of the Constitution, they are seeking to gain election value by defying the nation’s guiding document. And damn the cost (or inconvenience to them homosexuals)!
Equality advocates have been caught flat-footed. Some have tried to sue for contempt, failing to note that they have to have a ruling in their favor against that particular probate judge. Proper legal procedure is not a terribly difficult process, but it has to be followed.
My presumption is that eventually the correct paperwork will be filed. Federal judges – either Judge Grenade or others – will rule against a few specific probate judges in a few specific counties and slap their wrist with legal fees. And then all the others will fall in line.
Should any probate judge fail to do so, I suspect that they will be hit with very large penalties for defying the authority of the federal judiciary.
It may take a few days or weeks, but it’s a done deal.
Mobile County Probate Judge Don Davis has now been sued. This time the proper request appears to have been included:
Plaintiffs hereby respectfully requests [sic] that this Court enter an Emergency Injunction commanding the Defendants to issue the marriage licenses guaranteed by the Constitution as interpreted by this court.
Alabama Gov will not go after judges who follow Fed ruling
February 9th, 2015
Last night, Alabama State Supreme Court Chief Justice Roy Moore issued a pronouncement instructing the state’s probate judges to ignore the Federal Court ruling, the Eleventh Circuit’s response, and the refusal of stay by the Supreme Court of the United States and to instead follow his demands.
After four and a half pages of “whereas” statements, Moore declared the following:
NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:
To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.
Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests “the supreme executive power of this state,” Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. “The Governor shall take care that the laws be faithfully executed.” Art. V, § 120, Ala. Const. 1901. “‘If the governor’s “supreme executive power” means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.'” Tyson v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)).
In other words, if you issue marriage license in accordance with the Federal ruling, the Governor’s gunna gitcha. He’s going to, well we’re not sure what, but he’ll gitcha.
And then Moore began posting on his Facebook page encouraging people to call the Governor and request that he go get those law-breaking Federal-court-ruling-followers.
To which Governor Bentley has now responded, “I may be a bigot, but I’m not as bat-poop crazy as that lunatic Roy Moore.” Well, not exactly in those words, of course:
I am disappointed that a single Federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman. I agree with the dissenting opinion from U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia when they stated, ‘Today’s decision represents yet another example of this Court’s cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.’ 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.
Poor, poor Pat
February 9th, 2015
Pat Fancher is having a horrible day.
You see, despite her last minute desperate efforts, the state of Alabama has just recognized the marriage between her son David and Dr. Paul Hard.
BREAKING: It's official! Our client Paul Hard has received state recognition of his marriage to deceased husband. pic.twitter.com/9hOpYadJS0
— SPLC (@splcenter) February 9, 2015
And now poor, poor Pat is not going to get the total sum of the settlement for her son’s wrongful death. Instead that immoral homosexual will receive what is legally his share. She’s lost her fight and she’s shown herself to be an evil woman, all for nothing.
February 9th, 2015
dark purple – marriage equality states
light purple – marriage equality in some counties in the state
pink – marriage equality ruling on stay
yellow – federal judge ruled against equality
red – circuit court ruled against equality
Anti-gays anemically protest at Alabama Capitol
February 8th, 2015
There are about 4.9 million people in Alabama. And, in honesty, most of them probably do not support civil and legal equality for gay people.
But they aren’t exactly in an uproar about the fact that same-sex marriages are starting tomorrow morning. (WSFA)
The Sanctity of Marriage Alabama group held a rally on the steps of the Alabama State Capitol Building on Saturday. Group leaders say that nearly 175 individuals showed up to show their support for the group.
Nearly 175 individuals showed up. Wow. More than that showed up at the West Hollywood gym on Tuesday night to play dodgeball. Seriously.
Slovakian voters reject anti-gay referendum
February 8th, 2015
In Slovakia, a group called Alliance for the Family collected over 400,000 signatures, enough to put a referendum on the ballot. The referendum contained three provisions: banning any recognition of same-sex couples (the Slovakian constitution already defines marriage as a man and a woman); barring same-sex couples from adoption; and barring education about sexuality and euthanasia, unless parents agree.
Last week Pope Francis blessed the effort, and the Catholic Church used his image in a media campaign. In this majority Catholic country, this was assumed to be a major advantage.
This vote had connotations other than merely anti-gay attitudes; it was also seen as a rejection of the culture of Western Europe and its values.
For a referendum in Slovakia to be valid, it must not only have a majority of voters, but at least half of those eligible to vote must do so.Opponents of the effort were encouraging voters to stay home, in hopes that the referendum would fail to reach validity.
And now it appears that the opponents of the referendum, along with those who do not reject Western values, those who didn’t care much one way or the other, and those who had no idea that there was a vote, were together enough to cause the effort to fail. Only 21.4% of eligible voters turned up at the polls.
Pat Fancher desperate for rushed ruling
February 6th, 2015
Remember Pat Fancher, the Alabama mother-in-law from Hell whose response to her son’s tragic accident was to sue his husband? Because if the state recognizes her son’s legal Massachusetts marriage, then Pat will lose out on half of the wrongful death settlement.
She’s the lovely soul who filed an amicus brief in the Utah marriage case complaining that “homosexual conduct is immoral”.
Well now she’s desperate.
You see, come Monday – unless SCOTUS intervenes – marriage equality is coming to Alabama. And, if that doesn’t give her terrors enough, Fancher’s son-in-law is prepared to force the state to recognize his legal marriage.
So she’s filed a brief desperately asking a federal court to uphold Alabama’s ban on same-sex marriage and give all the glorious beautiful money to her, and not to that immoral homosexual!
Plaintiff Paul Hard has publicly stated that on Monday, February 9, 2015, he intends to take action to amend David Fancher’s death certificate to reflect that at the time of his death Paul Hard was his spouse, which action if successful would greatly upset Defendant Pat Fancher’s status in the matter before this Court. He may also take action to require the executor of David Fancher’s estate to pay to Paul Hard his spousal share of the estate, which would diminish the share to which Defendant Pat Fancher is entitled.
Respectful grief has many stages and love comes in many form. None of which include the behavior of this vile woman.
Montana committee narrowly defeats removal of marriage ban language
February 5th, 2015
In November 2014, federal courts ruled that Montana’s ten year old constitutional ban on same-sex marriage violates the US Constitution. Marriage equality has been in place since.
Montana’s constitutional ban (along with statutory bans) on same-sex marriage remains on the books. Depending on how the Supreme Court rules in June, it is possible (though unlikely) that the marriage ban could be reinstated.
However, some Montana legislators decided to preempt the Supreme Court, and remove the ban from the civil code. This likely has no legal impact on the state constitution, but could serve as a symbolic gesture of support for equality.
House Bill 282 was authored by Bryce Bennett (D – Missoula) and today the Judiciary Committee voted on whether to bring it to the full floor. By a tied vote of ten to ten, the Judiciary Committee tabled the bill. It will not go to the full house at this time.
I do not yet have the vote breakdown. However, there were six Democrats on the Judiciary Committee and fourteen Republicans, which indicates that there was significant bipartisan support.
House GOP won’t be involved in SCOTUS marriage hearing
February 5th, 2015
In Spring of 2011, President Obama and Attorney General Holder announced that the US Justice Department would no longer provide legal defense of the Defense of Marriage Act (Section 3) in federal court challenges, as they found it to violate the provisions of the US Constitution. The US Senate also declined to present a defense of the law.
The US House of Representatives, under the leadership of Speaker of the House John Boehner, hired legal representation and provided defense of the law. After several battles, the case came before the Supreme Court of the United States, and in June 2013 Section 3 of DOMA was held to be unconstitutional.
At that time, Republican leadership in Washington relinquished defense of DOMA and declared the matter settled. Boehner indicated that his body would not be engaging in efforts to argue the merits of other statutes or laws in regards to marriage but would act under the presumption that the Supreme Court had made its intent known.
And, for all practical purposes, the issue of same-sex marriage has been a settled one in the Nation’s Capital. It took a while for the administration to identify all areas in which discrimination continued, but the remedies did not face organized opposition.
Continuing in that state of mind, Boehner has now determined that the House will not interfere in the marriage ban appeal now before the Supreme Court nor will the GOP leadership seek to influence its decision. His language also suggests that he will not entertain notions about the invalidity of the court’s ultimate decision. (Blade)
“I don’t expect that we’re going to weigh in on this,” Boehner said. “The court will make its decision and that’s why they’re there, to be the highest court in the land.”
Of course individual GOP members are likely to file an amicus brief supporting discrimination, and some may do so jointly. But they will not do so under the authority of the House of Representatives.
300 marriages recognized by Michigan
February 4th, 2015
In March of last year, Federal Judge Bernard Friedman found that the State of Michigan’s ban on same-sex marriage violated the US Constitution. And couples rushed to marry.
The Sixth Circuit Court of Appeals issued a stay on the ruling a few days later. And in November that court overturned the ruling by Judge Friedman, in a decision that differed from all other circuit courts which had ruled on the subject. The decision of the Sixth Circuit will be considered by the Supreme Court this Spring.
But what of the couples who married?
Governor Rick Snyder (R) tried to stake out a middle ground in his response. He recognized that the marriages were legal when performed, which allowed the couples to be recognized by the Federal Government. However, he argued that state laws disallowed recognition of those legal marriages by the state of Michigan.
Last month U.S. District Judge Mark Goldsmith found that the state had the obligation to recognize those more than 300 marriages on the same terms as any other marriage. He stayed his ruling for three weeks for the state to appeal to the Sixth Circuit, should they choose.
Today, Governor Snyder announced that his administration would not appeal that decision. (abc)
“The judge has determined that same-sex couples were legally married on that day, and we will follow the law and extend state marriage benefits to those couples,” Snyder said in a statement.
Eighth Circuit expedites marriage cases
February 3rd, 2015
The Eighth Circuit Court of Appeals has agreed to combine the marriage ban cases from Arkansas, Missouri, and South Dakota. The court will also expedite the case, with the first round of briefs due on February 27, 2015. Oral arguments will be heard during the week of May 11-15, 2015 in Omaha, NE.
Eleventh Circuit denies stay in Alabama marriage case
February 3rd, 2015
On January 23, Judge Callie Grenade found that Alabama’s anti-gay marriage ban violated the Equal Protections and Due Process provisions of the US Constitution. However, she placed her ruling on hold until February 8, so as to allow the Attorney General an opportunity to request a longer stay from a higher court.
Today the Eleventh Circuit responded.
The Attorney General of the State of Alabama’s motions for a stay pending appeal are DENIED.
It is anticipated that the plaintiffs will request that Judge Grenade revoke her stay, based on the higher court ruling. If so, marriages will start immediately. If she declines to do so, they will start on Monday.
UPDATE: Judge Grenade has denied the request to lift the stay, as the state is petitioning the Supreme Court for a stay. Should the Supreme Court deny Alabama’s request, the stay will be lifted at that time. If they don’t respond by Monday, that is the day the stay is lifted.
Glorious news for Andrew Shirvell
February 2nd, 2015
Andrew Shirvell, the former Michigan Assistant Attorney General who lost his job after cyber-bullying Chris Armstrong, the Student Body President of the University of Michigan, has finally had some good news.
Well, it’s a mixed bag, really. He also got some news he wasn’t wanting to hear.
Shirvell had been hoping to get another trial on the defamation case he lost to Armstrong. The first one didn’t go so well, you see. Shirvell’s attorney on the case (himself) was extremely incompetent and the result was a jury award far far greater than Armstrong had requested.
But the Sixth Circuit Court of Appeals did not grant Shirvell a do-over. I guess they had reached their public circus budget for the year. Too bad.
But now to the good news. The court cut the amount that Shirvell owes Armstrong. By a million dollars. A million freaking dollars. Who wouldn’t want their debt cut by a million bucks?
Now Shirvell only owes $3.5 million. And what a relief that must be.
Florida will, gasp, not issue an amicus brief in favor of discrimination
January 31st, 2015
I’ve been amused and amazed about the level to which our community and our allies have convinced ourselves that Florida Attorney General Pam Bondi is Enemy Number One in the battle for marriage equality.
With every step, we’ve railed against the evil evil Bondi and her (half-hearted) defense of Florida’s anti-gay marriage ban. We’ve decried the “bigotry” in her language such as “We want uniformity” and gasped at the blatant animus of “It’s my job to defend the (state) constitution whether I not I agree with it”.
We’ve reported with baited breath that she’s “been filing briefs at a furious pace” in response to eight marriage cases filed against the state. And though other attorneys general (some of them Democrats) have also taken the position that defending the bans are part of their job (with little response), we’ve been stunned at Bondi’s identical stance.
When Bondi’s filings said that federal interference in state marriage laws would “impose significant public harm”, newspapers pulled those few words from the brief and announced that Bondi had said “harm”, ohmigod, she said “harm”, she must think that gay marriages cause HARM!
Yesterday, the media again was shocked, shocked I say, and breathlessly marveled that Bondi was continuing to fight against gay marriage. As evidence, they pointed to her response to inquiries about whether Florida would be filing an amicus brief in marriage cases before the Supreme Court. She, gasp, said that her office hadn’t yet decided! She just won’t give up!!
So today it’s news, NEWS, NEWS!! that Bondi backed down. The state of Florida is not filing a brief with the court. (Herald Tribune)
Friday evening, Bondi’s office said the attorney general would not be filing an amicus brief as the nation’s highest court in April hears a group of cases from the 6th U.S. Circuit Court of Appeal that has upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee.
Which is simply shocking!
Unless, of course, you’ve noticed all along that Bondi’s defense of Florida’s marriage ban has been half-assed, perfunctory, and accompanied by a refusal to demean the plaintiffs or their families.
GracePointe Church endorses equality
January 30th, 2015
GracePointe church in Franklin, TN, (a Nashville suburb) is an evangelical church with most of the beliefs of a typical evangelical in the South. It has a healthy sized congregation of 800 to 1,000 on Sundays and is best known as the church Carrie Underwood and her family attend.
They have long been somewhat supportive of gay congregants, but after three years of reflection the pastor has decided that “somewhat supportive” is not enough. (Time)
“Our position that these siblings of ours, other than heterosexual, our position that these our siblings cannot have the full privileges of membership, but only partial membership, has changed,” he said, as many in the congregation stood to their feet in applause, and other sat in silence. “Full privileges are extended now to you with the same expectations of faithfulness, sobriety, holiness, wholeness, fidelity, godliness, skill, and willingness. That is expected of all. Full membership means being able to serve in leadership and give all of your gifts and to receive all the sacraments; not only communion and baptism, but child dedication and marriage.”
This may be one of the first evangelical megachurch – at least in the South – that has taken this stand.
It can’t have been an easy decision and Pastor Stan Mitchell has to be aware that this is a divisional issue and attendance will drop. But hopefully others will be attracted by a message of inclusiveness.