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Posts for March, 2015

Alabama marriage carnival goes on

Timothy Kincaid

March 19th, 2015

bama

Since our last update, the marriage situation in Alabama has continued to whirl and twirl to a wild caliope tune.

Mobile County Probate Judge Davis, having been told by the Alabama Supreme Court that he was not exempt from their order to discriminate against same-sex couples, turned back to Federal Judge Granade. He noted that the plaintiffs in the case have all gotten married now, and requested that she put a stay on her order so as to keep him from having to defy one court or the other.

Judge Granade didn’t let him off the hook. She said, no dear, it’s isn’t much good that you’ve issued the licenses if the state won’t recognize them. And really you haven’t given me any reason why my ruling shouldn’t be upheld, so go on now and do what you’ve been told.

So Davis is refusing to issue marriage licenses to anyone.

But his problems didn’t stop there. Part of the marriage lawsuit was driven by Cari Searcy, one of the plaintiffs, desire to adopt the child that she and Kim McKeand had raised since birth. Alabama doesn’t allow second-parent adoption, but now that she’s married to the mother, she should be eligible.

But the state is refusing to recognize the marriage so Davis tried to enact partial compliance. He issued an interlocutory decree granting Searcy temporary parental rights but said he would not rule on the adoption itself until after the Supreme Court made it’s decision.

Searcy’s attorneys then sued Davis for failure to follow the order of the Federal Judge. But Davis used this to his advantage. He noted that he’s now a party to the suit and therefore no longer impartial and recused himself from the review of the adoption and asked the Alabama Supreme Court to give him a replacement for the case.

But, Searcy’s attorneys claim, a change in 2001 would have the replacement made by the presiding circuit judge. The matter is unclear because there is uncertainty whether the 2001 change applies to probate judges. This will undoubtedly delay the adoption further.

Meanwhile, Judge Granade has made her first ruling on the request by plaintiffs to add additional plaintiffs and to make the case class action. Attorney General Luther Strange had argued that too much time had passed, but Granade didn’t buy that.

She ruled that the case could be amended to allow additional plaintiffs and defendants.

There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second amended complaint (Doc. 76) is hereby GRANTED.

However, she did not rule on whether the case would be made class action.

Thus, although the court may dismiss class allegations “[w]here it is facially apparent from the pleadings that there is no ascertainable class,” …, the court finds that the Plaintiffs in this case have alleged adequate facts to support a potential class claim and the court will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.

Grenade has given Strange until March 23rd to tell her why “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages” is an ill-defined class definition.

It seems rather unlikely that Strange will convince Judge Granade that this class of people is vague and ill-defined. And it seems rather likely that Judge Granade will determine that her ruling applies to all such couples. This will eliminate all ambiguity about the extent and scope of the Federal ruling and may set the state on course for a showdown with the Federal government.

And then we will see what the Alabama Supreme Court has to say.

‘Bama Supremes er at it agin

Timothy Kincaid

March 11th, 2015

bama

Remember when the Supreme Court of the State of Alabama declared that they and they alone know what is in the US Constitution and ordered all counties in the state to stop issuing marriage licenses to same sex couples? Well, at the time, they made one tiny temporary exception.

They told Probate Judge Davis that he needed to get back to them about whether he thought that he was under any obligation to perform the tasks that Federal Judge Granade had ordered him to do.

And Davis, not being a complete lunatic nor wishing to be held in contempt, requested that he be exempted from the state court’s orders. Yeah, like that was going to happen! (WSFA)

The probate judge sought an 11-day extension to comply with the court’s order motion and on March 9 advised the court that he should not be included in the March 3 order because it would require him to violate a federal district court order.

The Alabama Supreme Court denied Davis’ request saying his concern was without merit.

“Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser,” the justices wrote, “and he makes no showing that that order has any continuing, binding effect on him as to any marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested.”

I rather suspect that if Judge Granade was not pissed off already, this might have done it. And the ‘Baba Supremes may well discover that her idea of “without merit” is quite different from the one the good ol’ boys have.

Alabama attorneys petition for class action on marriage case

Timothy Kincaid

March 6th, 2015

The attorneys who won their case against Alabama’s anti-gay marriage ban have gone back to Judge Granade and requested that the case be made a class action, impacting all same-sex couples who wish to marry.

Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.

Whatcha gotta say about that, Roy Moore?

Alabama weddings screech to a halt

Timothy Kincaid

March 4th, 2015

bamaThe members of the Alabama Supreme Court appear to think that the state is not subject to federal rulings and apparently believes that they, not the federal judicial system, are the final word on applying the Due Process and Equal Protections provisions of the US Constitution.

Some of the anti-gay probate judges, along with anti-gay activist groups, sued in state court to have same-sex marriages stopped. The state Supreme Court responded:

As it has done for approximately two centuries, Alabama law allows for “marriage” only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.

In other words, it doesn’t matter in the slightest that the Alabama law has been found by a federal judge to be a violation of the US Constitution. Nor does it matter that the Eleventh Circuit Court of Appeals did not grant a stay, finding it unlikely that this ruling will be overturned. Nor is it relevant that the Supreme Court of the United States also refused to stay the ruling, making its intentions clear.

Nope. Neither Judge Granade nor the judges on the Eleventh Circuit Panel not the Justices of the Supreme Court know what is “in the United States Constitution”. No sirree. ‘Bama knows better.

So they’ve ordered the stop of all same-sex marriage licenses.

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples.

And not just the specific counties sued.

Further, and pursuant to relator Judge Enslen’s request that this Court, “by any and all lawful means available to it,” ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this Stateother than the named respondents and Judge Davis are joined as respondents in the place of the “Judge Does” identified in the petition.

Now there is one possible exception. Because Judge Granade specifically ordered Mobile County Probate Judge Davis to issue marriage license to four couples, the Alabama Supreme Court has not yet ordered him to stop. Rather, they demand that he come back and tell them whether he thinks that Granade’s ruling only extends to those four couples. Cuz unlike their rulings, federal rulings are limited only to the specific appellants.

So all the counties have stopped issuing marriage licenses to same-sex couples. Including Mobile County which has closed its offices.

Of course no one, inside the state or outside, thinks this has anything to do with law, justice, or constitutionality. This is merely arrogance and animus on the Alabama court’s part.

Every now and again the good ol’ boys down there seem to need to remind the world that when it comes to matters of equality and civil rights, ‘Bama ain’t having it.

Alabama county update

Timothy Kincaid

February 13th, 2015

As of last count, in Alabama

47 counties are observing marriage equality
6 are issuing no marriage licenses to anyone
8 are issuing only to opposite-sex couples
5 are unreachable for inquiry

The equality counties are interspersed throughout the state, so few couples wishing to marry are inconvenienced with not more than a short drive.

Alabama Presbyterians vote for marriage equality

Timothy Kincaid

February 12th, 2015

Alabama Presyterians

In a rather timely decision, the central Alabama presbytery of the Presbyterian Church (USA) has voted to endorse changes in the church rules that would allow them to conduct same-sex marriages. (AL.com)

The Presbytery of Sheppards and Lapsley, a central Alabama group of churches affiliated with the Presbyterian Church (USA), voted 75-39 Thursday in favor of approving gay marriages.

They became one of about 38 presbyteries nationwide that have voted in favor of gay marriage, with 14 voting against. The change to the 1.8-million-member denomination’s official stance will become official if 86 of the 171 presbyteries vote in favor.

Now the Presbyterian Church is nowhere as dominant in Alabama as the Southern Baptists. But news like this does go a long way to dilute the But God Says! and Attack on Christianity! messages upon which anti-gay Christian rely so heavily.

Ironically, some of the supportive Presbyterians looked a bit askance at the impromptu ceremonies conducted this week.

Webster said he prefers that gay marriage in the church follow a protocol of the couple being members in a church and seeking pre-marital counseling before being married in a sacred ceremony in a church.

“It seemed frivolous and impetuous,” Webster said. “We would have dealt with it more seriously, with church members in the context of a church community. For us, it’s a worship service.”

And perhaps that’s one of the ways in which we know that society is on the road to full acceptance, when levels of establishment feel that you should follow the prescribed order, just like everyone else!

Mobile County Alabama ordered to issue marriage licenses

Timothy Kincaid

February 12th, 2015

On Monday, Judge Carrie Grenade’s stay was lifted and marriage equality came to Alabama. But not to all of the state.

Alabama Supreme Court Chief Justice Roy Moore ordered (apparently on his own imagined authority) and order commanding probate judges to refuse service to same-sex couples. Some probate judges followed Moore’s order and flouted the law, issuing marriage licenses to opposite sex couples but not same sex couples. And some chose to not issue licenses to anyone, citing conflicting orders.

Mobile County Probate Judge Don Davis was one who froze all marriage licenses. On Monday, he was sued by same-sex couples in Mobile County who wish to marry.

Today Judge Grenade specifically ordered Davis to open his office and issue marriage licenses to both opposite-sex and same-sex couples. (AL.com)

A federal judge in Mobile on Thursday ordered Mobile County Probate Judge Don Davis to start granting marriage licenses to gay couples, and he immediately took steps to do just that.

Less clear is whether other probate judges, who are not defendants in either case considered Thursday, would alter their position in the face of a new ruling by Granade. Marshall, the legal director for the American Civil Liberties Union of Alabama, said he believes most probate judges will take their cues from Granade’s new order. For those who continue to resist, he said, same-sex marriage advocates will file new lawsuits naming them as defendants.

This will, undoubtedly, result in most probate judges issuing licenses. But I suspect some will be recalcitrant and fight tooth and toenail.

Alabama Supremes’ response undermines Judge Roy Moore

Timothy Kincaid

February 12th, 2015

In an article titled “Alabama Supreme Court punts on request for ‘clarification’ of Roy Moore’s marriage order”, AL.com reports that the Alabama Supreme Court has rejected a request.

The Alabama Supreme Court on Wednesday dismissed a request by Mobile County Probate Judge Don Davis to clarify Chief Justice Roy Moore’s order instructing probate judges to ignore a federal court ruling allowing same-sex marriage.

And, indeed, they have. The jurists other than Moore (who recused himself) refused to provide any answer as to whether Davis and the other probate judges must follow Judge Grenade’s ruling and provide marriage licenses to same-sex couples.

However, AL.com’s next paragraph seems to contradict their headline.

The justices wrote that they do not have the authority to address the question.

That is not a neutral position. That is not a view that says, “Gee, we don’t know.”

The implications are clear and Davis, along with the other county officials, should be bright enough to see them. If the Alabama State Supreme Court does not have the authority to direct probate judges not to issue marriage licenses to same-sex couples, then surely the Chief Justice, acting alone, lacks any prerogative to do so.

Alabama probate judges block 50 “traditional” marriages per day

Timothy Kincaid

February 11th, 2015

In 2013 (the last year available) there were 37,789 marriage licenses issued. Which averages to about 150 licenses per business day. All of them “traditional” marriages between a man and a woman.

Currently, about 35% of Alabama residents live in counties in which the probate judges have refused to issue marriage licenses to anyone, gay or straight. So some 50 or so ‘traditional’ marriage licenses are being denied per day.

For the life of me, I don’t see how this benefits anyone.

Alabama Governor not standing in the doorway

Timothy Kincaid

February 10th, 2015

Governor Bentley of Alabama opposes marriage equality. However, he too sees comparisons between the behavior of his state today and that of 50 years ago and he has no intention of taking up the mantle of former Alabama Governor George Wallace. (Talking Points Memo)

Gov. Robert Bentley, a Republican and a Southern Baptist, said he believes strongly that marriage is between one man and one woman, but that the issue should be “worked out through the proper legal channels” and not through defiance of the law.

The governor noted that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil rights marchers were attacked and beaten in Selma, Alabama — events chronicled in the Oscar-nominated movie “Selma.”

“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied. I’m not going to do that,” Bentley said in an exclusive interview with The Associated Press.

“I’m trying to move this state forward.”

Understanding the probate judges in Alabama – UPDATED

Timothy Kincaid

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.

UPDATE

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

Timothy Kincaid

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

Timothy Kincaid

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.

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.

Gay Couples Begin Marrying in Alabama as US Supreme Court Denies Stay

Jim Burroway

February 9th, 2015

Screen Shot 2015-02-09 at 8.24.07 AM

Marriages of same-sex couples are now underway in parts of Alabama this morning. AL.com is providing live updates from around the state. Late last night, Alabama Supreme Court Chief Justice issued an order prohibiting probate judges from issuing licenses to same-sex couples. You may remember Moore from a decade ago when he was removed as Alabama Chief Justice for refusing to comply with a federal court order requiring the removal of a monument to the Ten Commandments from the lobby of the Alabama Judicial Building. State Supreme Court justices are elected to office, and Alabama voters returned Moore to the high court in 2013. Probate Court judges are also elected positions, and between Moore’s order and popular politics in a state which approved its marriage ban in 2006 by more than 80%, these judges are now in quite a bind. Bibb County Probate Judge Jerry Pow is one of those judges not issuing licenses this morning, telling AL.com, “I don’t know whether I want to defy the Chief justice of the state Supreme Court or a federal judge.” Moore’s stand at the courthouse door is drawing obvious comparisons to another Alabama politician who stood in a doorway to block a federal court order. From an editorial in the Birmingham News:

Almost 52 years ago Gov. George Wallace made his infamous stand in the schoolhouse door at the University of Alabama to block two black students from registering for classes.

It was really all for show. Wallace knew he had no authority to stop the students. The federal courts had ruled that the time had come to integrate UA and to back up that order President John F. Kennedy federalized the Alabama National Guard to make sure the law was enforced and the peace maintained.

Still Wallace continued. He got his moment. Cameras captured it for front pages across the nation. TV broadcast it around the world painting Alabama as an intolerant place.

It is still an image we fight.

AL.com/Birmingham News is getting rather cheeky in its opinion section. One columnist asked whether Moore was “protesting too much.” Meanwhile, marriages are taking place this morning in the state capital of Montgomery and in Birmingham, Alabama’s largest city.

Screen Shot 2015-02-09 at 8.25.13 AM

Shortly after those marriages began, the U.S. Supreme Court finally announced that it was refusing to issue a stay on Alabama marriages. The decision was made by the full court after Justice Clarence Thomas referred the matter to the full court. Thomas has oversight over the Eleventh Circuit. Thomas wrote a three-page dissent (PDF: 58KB/3 pages) from the Court’s decision, with Scalia joining. Noting that the Court granted a stay over a year ago in Herbert v. Kitchen which overturned Utah’s marriage ban, Thomas wrote:

This application should have been treated no differently.That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgmentsinvalidating state marriage laws. Although I disagreed with the decisions to deny those applications, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.

…This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.

Today’s decision represents yet another example of this Court’s increasingly 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. It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Anti-gays anemically protest at Alabama Capitol

Timothy Kincaid

February 8th, 2015

alabamaprotest

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.

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