A federal judge who overruled the will of Alabama voters and decided that same-sex “marriage” must be recognized in the state refused Monday to impose sanctions on a state official who would not issue licenses to same-sex duos.
The plaintiffs in the original lawsuit, Cari Searcy and Kimberly McKeand, had demanded that Probate Judge Don Davis be cited with contempt and ordered to immediately provide them with a license after his office did not open Monday
But U.S. District Judge Callie Granade determined that Davis is not a party to the case and to her order of Jan. 23 that the state must recognize same-sex marriage.
“Judge Davis’s obligation to follow the Constitution does not arise from this court’s order,” Granade said. “The clarification order noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law. However, no such action is before the court at this time.”
The fight over the wave that has swept across the United States of judges imposing same-sex marriage on Americans who passed measures limiting marriage to one man and one woman has hit breakers in Alabama.
There, Granade ordered the state to change its constitution, but state Supreme Court Chief Justice Roy 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.
The fight heated up Monday when the U.S. Supreme Court refused to extend a stay of Granade’s order. Some probate judges followed the federal court order, and some followed Moore’s order.
The judge earlier had threatened state officials, saying 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.”
But Granade said in response to Monday’s demand from the plaintiffs, who want to adopt but cannot because they are not married, that they have “offered no affidavit or other evidence to show that they have been prevented from applying for the adoption of that their adoption application was wrongfully denied after this court’s … order.”
Granade also hinted a new motion could impose sanctions.
“Nothing in plaintiffs’ motion would compel this court to order law enforcement to open the marriage license division of Mobile County Probate Court or impose sanctions,” the judge wrote.
She said the plaintiffs “have offered no authority by which this court can hold Davis in contempt or order any of the relief sought.”
Moore told WND on Monday he’s not backing away from the state court vs. federal court fight over marriage, because he believes constitutionally the residents of states are allowed to define the institution.
Confusion abounds after the Supreme Court on Monday refused to extend the stay to Granade’s order.
Moore sent a memorandum to the state’s 68 probate judges and others in the state judiciary saying they are not bound, according to federal court precedent, to follow Granade’s order. Moore argued the state constitution excludes same-sex duos from marriage, and Alabama Gov. Robert Bentley would be the executive who would decide if penalties should be applied to anyone who violates the state constitution.
In just a handful of states, voters or lawmakers have approved homosexual marriage. In dozens more, however, federal judges have imposed it and overridden the 10th Amendment principle that powers not delegated to the federal government – marriage isn’t mentioned in the Constitution – are reserved to the states.
The high court decision Monday 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.”
The high court is scheduled to hear arguments on the merits of a related case in a few weeks, but observers were proclaiming Monday that “gay marriage” across the country already is a “done deal” because of the Monday decision.
Moore has argued that the judges are not part of the lawsuit and, therefore, not subject to Granade’s order. The attorney general is the defendant, but he’s not authorized to grant marriage licenses in Alabama.
And Moore noted lower federal courts “are without authority to impose their own interpretation of federal constitutional law upon the state courts.”
“Furthermore, they have absolutely no legitimate authority to compel state courts to redefine marriage to include persons of the same sex. Not only is the Mobile federal court acting without constitutional authority, but it is doing so in a manner inconsistent with the Eleventh Amendment to the United States Constitution.”