The U.S. Supreme Court, in an order handed down Monday morning, refused to halt same-sex marriages from proceeding in Alabama, minutes before courthouses in the state were scheduled to open for business and begin issuing marriage licenses to same-sex couples. The order, which declined to extend the stay of a lower court ruling striking down the state’s ban on same-sex marriage, noted that Supreme Court Justices Clarence Thomas and Antonin Scalia would have granted the stay.
The denial of a stay was accompanied by a dissent written by Thomas, who wrote that today’s decision “represents yet another example of this Court’s increasingly cavalier attitude toward the States.”
U.S. District Court Judge Callie V. S. Granade ruled last month in two separate cases that Alabama law prohibiting same-sex marriage violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Granade stayed her decisions for 14 days to allow the state to appeal. The stay was scheduled to expire on February 9.
After the 11th Circuit Court of Appeals denied a request by Alabama Attorney General Luther Strange to extend the stay of a lower court’s ruling striking down the state’s ban on same-sex marriage, Strange appealed to the Supreme Court. The decision by Granade sparked controversy in the state after Alabama Chief Justice Roy Moore urged the governor and probate judges to continue to uphold the state’s marriage ban.
In December, the 11th Circuit also denied a request to extend the stay on the implementation date of a lower court ruling striking down Florida’s same-sex marriage ban. Florida Attorney General Pam Bondi asked Thomas, who oversees the 11th Circuit, to extend the stay. Thomas referred the issue to the full court, which denied the stay and allowed same-sex marriages to proceed. The denial noted that Thomas and Scalia would have granted the stay.
Thomas and Scalia have dissented in a number of stay requests that have been denied by their colleagues. But unlike those cases, which have pertained to states in the circuits impacted by the Supreme Court’s decision not to hear the handful of marriage-equality cases in October, Florida is in the 11th Circuit, which has not yet addressed the issue of same-sex marriage. While a year ago the high court was quick to stay marriages in Utah as the case was appealed, the justices appear increasingly comfortable with allowing same-sex marriages to proceed before they themselves have considered the issue.
“[R]ather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor,” Thomas wrote in his dissent. “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.”
Later this year the justices will rule on whether the Constitution prohibits states from banning same-sex marriage.
UPDATE at 11:25 a.m., Feb. 9: Alabama Attorney General Luther Strange said in a statement that the Supreme Court’s decision orders him to stop enforcing the state’s same-sex marriage ban.
“I regret the Supreme Court’s decision not to stay the federal district court’s ruling until the high court finally settles the issue this summer. In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.
“With the lifting of the 14-day stay on February 9, 2015, the U.S. District Court order remains in effect, enjoining me from enforcing Alabama’s laws against same-sex marriage in my official capacity as Attorney General.
“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me. I advise probate judges to talk to their attorneys and associations about how to respond to the ruling. Furthermore, I encourage any state agencies with questions about the ruling in Searcy and Strawser to contact the Governor’s Office.”
UPDATE at 1:50 p.m., Feb. 9: Although Alabama Gov. Robert Bentley (R) expressed his disappointment in the decision by the Supreme Court, he said in a statement that he would not take action against state probate judges who issue licenses to same-sex couples.
“The issue of same sex marriage will be finally decided by the U.S. Supreme Court later this year. I have great respect for the legal process, and the protections that the law provides for our people. 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.”
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