Ex parte State ex rel. Ala. Policy Inst.

200 So.3d 495

Ex parte STATE of Alabama ex rel. ALABAMA POLICY INSTITUTE, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County.

(In re Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.).

1140460.

Supreme Court of Alabama.

March 3, 2015.

Order Issued March 10, 2015.^*

Order Issued March 4, 2016.

A. Eric Johnston, Birmingham; Samuel J. McLure of The Adoption Law Firm, Montgomery; and Mathew D. Staver, Horatio G. Mihet, and Roger K. Gannam of Liberty Counsel, Orlando, Florida, for petitioner State ex rel. Alabama Policy Institute and Alabama Citizens Action Program.

John E. Enslen, Probate Judge of Elmore County, as petitioner.

Lee L. Hale, Mobile; and J. Michael Druhan, Jr., and Harry V. Satterwhite, Mobile, for respondent Judge Don Davis, Probate Judge of Mobile County.

Gregory H. Hawley, Christopher J. Nicholson, and G. Douglas Jones of Jones & Hawley, PC, Birmingham; and Jeffrey Sewell and French McMillan of Sewell, Sewell, McMillan, LLC, Jasper, for respondent Alan L. King, Probate Judge of Jefferson County.

George W. Royer, Jr., and Brad A. Chynoweth of Lanier Ford Shaver & Payne, P.C., Huntsville, for respondent Tommy Ragland, Probate Judge of Madison County.

Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; Thomas T. Gallion and Constance C. Walker of Haskell Slaughter & Gallion, LLC, Montgomery; Samuel H. Heldman of The Gardner Firm, PC, Washington, D.C.; Tyrone C. Means, H. Lewis Gillis, and Kristen Gillis of Means Gillis Law, LLC, Montgomery; and John Mark Englehart, Montgomery, for respondent Steven L. Reed, Probate Judge of Montgomery County.

Kendrick E. Webb, Jamie Helen Kidd, and Fred L. Clements, Jr., of Webb & Eley, P.C., Montgomery, for respondent Robert M. Martin, Probate Judge of Chilton County.

L. Dean Johnson, Huntsville, for amici curiae Eagle Forum of Alabama Education Foundation and Eagle Forum Education & Legal Defense Fund, in support of the petitioner State ex rel. Alabama Policy Institute and Alabama Citizens Action Program.

J. Richard Cohen and David Dinielli, Southern Poverty Law Center, Montgomery; Ayesha Khan, Americans United for Separation of Church and State, Washington, D.C.; Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, California; and Randall C. Marshall, ACLU of Alabama Foundation, Montgomery, for amicus curiae Equality Alabama, in support of the respondents.

J. Stanton Glasscox of Glasscox Law Firm, LLC, Birmingham, for amicus curiae J. Stanton Glasscox, in support of the respondents.

PER CURIAM.

The State of Alabama, on relation of the Alabama Policy Institute ("API"), the Alabama Citizens Action Program ("ACAP"), and John E. Enslen, in his official capacity as Judge of Probate for Elmore County, seeks emergency and other relief from this Court relating to the issuance of marriage licenses to same-sex couples. Named as respondents are Alabama Probate Judges Alan L. King (Jefferson County), Robert M. Martin (Chilton County), Tommy Ragland (Madison County), Steven L. Reed (Montgomery County), and "Judge Does 1–63, each in his or her official capacity as an Alabama Judge of Probate." API and ACAP ask on behalf of the State for "a clear judicial pronouncement that Alabama law prohibits the issuance of marriage licenses to same-sex couples." To the same end, Judge Enslen "requests that this Supreme Court of Alabama, by any and all lawful means available to it, protect and defend the sovereign will of the people of the State of Alabama."

Chapter 1 of Title 30, Ala.Code 1975, provides, as has its predecessor provisions throughout this State's history, a comprehensive set of regulations governing what these statutes refer to as "marriage." See, e.g., § 30–1–7, Ala.Code 1975 (providing for the solemnization of "marriages"), and § 30–1–9, Ala.Code 1975 (authorizing probate judges to issue "marriage" licenses). In 1998, the Alabama Legislature added to this chapter the "Alabama Marriage Protection Act," codified at § 30–1–19, Ala.Code 1975 ("the Act"), expressly stating that "[m]arriage is inherently a unique relationship between a man and a woman" and that "[n]o marriage license shall be issued in the State of Alabama to parties of the same sex." § 30–1–19(b) and (d), Ala.Code 1975. In 2006, the people of Alabama ratified an amendment to the Alabama Constitution known as the "Sanctity of Marriage Amendment," § 36.03, Ala. Const. 1901 ("the Amendment"), which contains identical language. § 36.03(b) and (d), Ala. Const. 1901. The petitioner here, the State of Alabama, by and through the relators, contends that the respondent Alabama probate judges are flouting a duty imposed upon them by the Amendment and the Act and that we should direct the respondent probate judges to perform that duty.¹

The circumstances giving rise to this action are the result of decisions and orders recently issued by the United States District Court for the Southern District of Alabama ("the federal district court") in Searcy v. Strange, 81 F.Supp.3d 1285 (S.D.Ala.2015) ("Searcy I "), and Strawser v. Strange (Civil Action No. 14–0424–CG–C, Jan. 26, 2015), and a subsequent order by that court, in each of those cases, refusing to extend a stay of its initial order pending an appeal.

In its initial decision in Searcy I, the federal district court issued a "Memorandum Opinion and Order" in which that court came to the conclusion that the "prohibition and non-recognition of same-sex marriage" in the Amendment and the Act violate the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Searcy I, the federal district court enjoined Alabama Attorney General Luther Strange—the only remaining defendant in that action—from enforcing the Amendment and the Act.

On January 26, the federal district court entered a preliminary injunction in Strawser, a case in which a same-sex couple had been denied a marriage license in Mobile. The federal district court, relying on the reasons it provided in Searcy I for the unconstitutionality of the Amendment and the Act, enjoined Attorney General Strange and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from enforcing "the marriage laws of Alabama which prohibit same-sex marriage."

In the wake of the federal district court's orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may have been altered by the federal district court's decision. Similarly, consistent with the federal district court's order, Attorney General Strange has refrained from taking any other official acts in conflict with those orders.

On January 28, 2015, the federal district court issued an "Order Clarifying Judgment" in Searcy I, in which it responded to "statements made to the press by the Alabama Probate Judges Association" that indicated that, "despite [the federal district court's] ruling, [probate judges] must follow Alabama law and cannot issue marriage licenses to same-sex couples." In that order, the federal district court observed that

" '[r]easonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees.... The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction.' "

(Quoting Brenner v. Scott (No. 4:14cv107, Jan. 1, 2015) (N.D.Fla.) (emphasis added).)

The federal district court entered stays of the execution of its injunctions in Searcy I and Strawser until February 9, 2015, in order to allow Attorney General Strange to seek a further stay, pending appeal, from the United States Court of Appeals for the Eleventh Circuit. On February 3, 2015, the Eleventh Circuit declined Attorney General Strange's request for a stay. Thereafter, Attorney General Strange sought a stay from the United States Supreme Court. On February 9, 2015, the United States Supreme Court also declined to enter a stay over a strongly worded dissent from Justice Clarence Thomas that was joined by Justice Antonin Scalia. Strange v. Searcy, –––U.S. ––––, 135 S.Ct. 940, 191 L.Ed.2d 149 (2015).

On February 8, 2015, the Chief Justice of this Court entered an administrative order stating that the injunctions issued by the federal district court in Searcy I and Strawser were not binding on any Alabama probate judge and prohibiting any probate judge from issuing or recognizing a marriage license that violates the Amendment or the Act.

On February 9, 2015, the stays of the injunctions in Searcy I and Strawser were lifted. It is undisputed that at that time respondent probate Judges King, Martin, Ragland, and Reed began issuing marriage licenses to same-sex couples in their respective counties. Probate judges in some other counties refused to issue any marriage licenses pending some further clarification concerning their duty under the law. Still other probate judges continued to...