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Posts for February, 2015

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.

Marriage map

Timothy Kincaid

February 9th, 2015

marriage 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

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.

Slovakian voters reject anti-gay referendum

Timothy Kincaid

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

Timothy Kincaid

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

Timothy Kincaid

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.

300 marriages recognized by Michigan

Timothy Kincaid

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

Timothy Kincaid

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

Timothy Kincaid

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.

Florida will, gasp, not issue an amicus brief in favor of discrimination

Timothy Kincaid

January 31st, 2015

bondiI’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.

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