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Alabama probate judge cites differing decisions on gay marriage, opposed federal class-action bid

By Debra Cassens Weiss

ABA Journal

An Alabama probate judge faces differing court decisions after a federal judge on Monday refused to stay a February order requiring him to grant marriage licenses to same-sex couples who challenged the state’s ban on gay marriage.

U.S. District Judge Callie Granade said in her Monday order (PDF) that Judge Don Davis of Mobile County “has not argued, much less shown that he is likely to succeed on the merits.” Nor has he shown irreparable injury if a stay is denied, Granade said.

“Judge Davis states that he has been placed in a potential conflict between this court’s orders and the orders of the Alabama Supreme Court and its Chief Justice, Roy Moore,” Granade wrote. “Judge Davis laments that he has continued to be at the center of a statewide confusion. Although the court would agree that the developments in these same-sex marriage cases has at times seemed dizzying, the court finds that Judge Davis has not shown that a stay is warranted.”

Granade noted that Davis complied with her February order and all of the plaintiffs had received marriage licenses.

Granade’s refusal to grant a stay is at odds with an Alabama Supreme Court decision earlier this month that barred the state’s probate judges from issuing gay-marriage licenses.

The Alabama Supreme Court decision said state courts may interpret the Constitution “independently from, and even contrary to, federal courts,” though state court decisions on federal questions may be reversed by the U.S. Supreme Court. The decision ordered Davis to advise the court whether Granade’s order only applied to the four couples in the lawsuit.

Davis had reopened his office for marriage licenses after Granade’s February order, then closed the office on March 4 after the Alabama Supreme Court ruling, reports.

Heather Fann, a lawyer who represents gay couples on behalf of the National Center for Lesbian Rights, told that she believes Davis can comply with Granade’s order by declining to grant marriage licenses to all couples. Alabama law says probate judges may grant marriage licenses, but doesn’t require them to do so. The Human Rights Campaign, however, said Davis is violating the federal court order by denying same-sex couples the opportunity to get marriage licenses.

The plaintiffs in the federal litigation are seeking to certify the suit as a class action that would bind all of the state’s probate judges. Lawyers for Davis opposed class-action status. The state attorney general has until March 23 to respond to the motion for a class action.

Background Photo Credit: Kasia Broussalian © 2015