Though the Supreme Court has guaranteed a (likely) final answer on marriage equality later this year, lower courts are still weighing in on the rights of same-sex couples. Friday evening, a federal judge ruled against Alabama’s ban on same-sex marriage without imposing a stay, which means it is likely now the 37th marriage equality state.
District Judge Callie V. S. Granade, a George W. Bush appointee, ruled that Alabama’s ban on same-sex marriage violated both Equality Protection and Due Process. The couple that brought the suit had been married in California and are seeking to have the one woman’s son coadopted by the other spouse. “Those children currently being raised by same-sex parents in Alabama,” Granade wrote, “are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents.”
Granade referred to the many other court decisions for much of her analysis, but still spelled out how Alabama’s arguments defending the ban failed to persuade her:
The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states.
The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.
Granade’s appointment was supported by both Sens. Richard Shelby (R) and Jeff Sessions (R). Sessions testified that “”She has the temperament, integrity, legal knowledge, and experience that will make her an outstanding jurist on the Federal bench,” going on to describe her as “levelheaded, fair minded, trustworthy, and very smart.”
It is unlikely that any court will interfere with Alabama becoming a marriage equality state, short of Granade offering to stay her own opinion. Last month, when the Eleventh Circuit had the opportunity to extend the stay on a similar ruling in Florida, it chose not to, as has the Supreme Court repeatedly in recent months. The next time an Alabama clerk’s office opens, same-sex couples will be legally able to obtain marriage licenses. Unfortunately, they continue to enjoy no statewide nondiscrimination protections, meaning they could face unfair treatment in employment, housing, and public accommodations — even as retribution for marrying.
The Alabama Probate Judges Association is recommending its members not issue marriage licenses Monday morning, but in a conference call Sunday, they acknowledged that some judges likely would. The organization claimed that because probate judges were not named in the original suit, they were not responsible for violating the state’s ban on same-sex marriage, disregarding that Judge Granade had declared it unconstitutional.
The Judges Association also acknowledged it would be filing a brief siding with the Attorney General’s request for a stay in the decision. This seems to indicate their bias against the ruling taking effect state-wide. They hope that because the U.S. Supreme Court has agreed to once again take up a marriage equality case that they will have better luck obtaining a stay.
Florida clerks attempted a similar tactic less than a month ago. The judge in that case pointed out in a clarification of his initial ruling that any clerks who did not abide the ruling could be legally liable if they did not issue licenses and then were sued.