Probate judges in Alabama caught between conflicting state and federal judicial decisions over same-sex marriage are urging the state Supreme Court to throw in the towel since the U.S. Supreme Court is expected to rule on the issue within months.
The request came in a series of court filings from some of the probate judges, who are designated in Alabama to issue marriage licenses.
As WND reported, Alabama Supreme Court Chief Justice Roy Moore sent a memorandum to the state’s 68 probate judges Feb. 8 saying they are not bound, according to federal court precedent, to follow U.S. District Judge Callie Granade's order Jan. 23 striking down the state's prohibition of same-sex marriage.
The probate judges are caught in the dilemma of being sued if they follow the state constitution and being found in contempt if they follow the federal court ruling.
Their arguments coalesced this week when they submitted briefs in a case filed by the Alabama Policy Institute and the Alabama Citizens Action Program asking a court to force them to follow Moore's instructions.
A filing from Probate Judge Steven Reed noted Moore entered an administrative order ruling barring "any probate judge from issuing or recognizing a marriage license which violates the Marriage Amendment or the Marriage Act."
"The question thus arises: what good, and what harm, would this court do by issuing the order that petitioners seek?"
Reed argued the court "would not actually stop any couple from marrying for very long."
"The court, by deciding the issues of state law as petitioners request, would simply make [the judges] targets of federal litigation."
If the court granted the petitioners their request, Reed said, it would "put probate judges in an untenable position, even worse than the 'angst and consternation,' 'darned if I do, darned if I don't' dilemma that already faces them now."
He explained: "If a probate judge followed this court's order … a probate judge would subject himself to suit in federal district court, which would in turn lead to much expenditure of public funds: not only funds for the defense of the case, but in all likelihood an award of attorneys' fees to any plaintiff. ... On the other hand, if a probate judge honored the decision of the United States District Court for the Southern District of Alabama, which both the 11th Circuit and the U.S. Supreme Court determined should not be stayed, then the probate judge might be held in contempt in state court."
He pleaded: "This court should not place probate judges in such unfair and undeserved jeopardy, especially when the legal battle over same sex marriage is very likely to be concluded within a few months, and when the order petitioners seek from this court would not settle the matter, even for a moment."
A number of different filings arrived at the Alabama Supreme Court from the state's judges. Most said the petitioners did not have proper standing, meaning they can't prove that they would be personally harmed.
"If petitioners had identified any legally protected interest in defending the validity of Alabama's same-sex marriage ban, they have failed to allege how any such interest was harmed by lifting of the same-sex marriage ban; how they personally were harmed; or how an order of this court reinstating Alabama's ban would remedy any such harm to either petitioner's personal interest."
Reed also argued that because issuing marriage licenses is an administrative function, not a judicial function, the judges are bound by the federal court order that named the state attorney general, an executive branch member.
Also submitting briefs making similar points were Alan King, Robert Martin, Tommy Ragland and "Judge Does 1-63." The submission totaled hundreds of pages.
Christian evangelist Franklin Graham, who heads both the relief and development group Samaritan's Purse and the Billy Graham Evangelistic Association, put the case in perspective.
His Facebook posting challenged the dozens of orders from mostly federal judges across the country that have imposed same-sex marriage on populations that voted against it.
"No earthly court has jurisdiction over the infallible Word of God," he said.
The petition by the citizens' groups was just the latest move in an escalating fight in Alabama over a lone federal judge's order that the state recognize same-sex marriage, overruling voters who approved an amendment to the state constitution defining the institution as the union of one man and one woman.
The federal judge, Granade, admitted one of the main points of the petitioners – that she lacked jurisdiction over the judges because they were not parties to the case – in an earlier ruling.
"Judge Granade herself was ultimately forced to concede this point in her order denying the Searcy plaintiffs' motion to hold Judge of Probate Don Davis in contempt for violating the Searcy injunction … the plaintiffs claimed that Judge Davis violated the Searcy injunction by not opening the marriage license division."
However, in denying the motion, Granade "acknowledged that Judge Davis was not a party to the case, and was not ordered to do anything by the Searcy injunction."
Granade ruled: "Plaintiffs have offered no authority by which this court can hold Davis in contempt or order any of the relief sought."
She later reopened the already-decided case to add Davis as a defendant so that she could issue an order against him.
The filing from the nonprofit legal group Liberty Counsel was based on Moore's unusual order.
"Effective immediately," Moore had ordered, "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 ... the Alabama Constitution."
Mat Staver, founder and chairman of Liberty Counsel, said many Alabama probate judges are "acting lawlessly."
"Alabama probate judges do not have discretion to issue marriage licenses to same-sex couples," he said. "Neither the Searcy nor the Strawser injunction requires Alabama probate judges to issue marriage licenses to same-sex couples.
"The only remedy to this lawlessness is mandamus relief, an order from the Alabama Supreme Court to command probate judges to perform their ministerial duty not to issue marriage licenses to same-sex couples," Staver concluded.
When Granade ordered the state to change its constitution, Moore pushed back, pointing out that according to court precedent, state courts are not bound by the interpretations of a lower federal court.
He said Granade's Jan. 23 order is without constitutional basis and told his state's probate judges – the only ones who can issue marriage licenses – to follow the state constitution.
Moore told WND he's not backing away from the state court versus federal court fight over marriage, because he believes constitutionally the residents of states are allowed to define the institution.
Granade's office refused comment.
The U.S. Supreme Court decision Feb. 9 not to extend a stay in Granade's order brought a dissent from Justice Clarence Thomas: "In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question."
WND reported when Moore said his probate judges should "uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability, So Help You God!"
He said his arguments focus heavily on dual sovereignty – the concept of a number of sovereign states coalescing to create a sovereign nation. The arguments include spelling out who has the responsibility for making what decisions.
"The right to enter into the institution of marriage, namely a union between one man and one woman, is established in history and law as a fundamental right. Although not enumerated in the Constitution, that right is retained by the people under the Ninth Amendment: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,'" he wrote.
He continued: "Marriage has long been recognized as a divine institution ordained of God. According to the United States Supreme Court, the basic foundation of marriage and family upon which our country rests is 'the union for life of one man and one woman in the holy estate of matrimony.'"