Case 1:14-cv-00424-CG-C Document 1 Filed 09/11/14 Page 1 of 3

IN TI{E TIMTED STATES DISTRICT COURT FOR TI{E SOUTTMRN DISTRICT OF ALABAMA
DIVISON

James N. Strawser John E. Humphrey Plaintiffs
vs
State of Alabama Defendant

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The issue in this case is the constitutionality of Alabama's refusal to allow our same sex marriage or to recognize same-sex marriages lawfully entered elsewhere.
The founders of this nation said in the preamble to the United States Constitution that a goal was to secure the blessings of liberty to themselves and their posterity. Liberty has come
more slowly for some than for others. It was 1967, nearly two centuries after the Constitution
was adopted, before the Supreme Court struck down state laws prohibiting interracial marriage, thus protecting the liberty of individuals whose chosen life partner was a different race. Now, nearly 50 years lateE the argument supporting the ban on interracial marriage seem an obvious pretext for racism; it must be hard for those who were not then of age to understand just how sincerely those views were held. When observers look back 50 years from now, the arguments supporting Alabama's ban on silme-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not of age will wonder just how those views could have been held.

Case 1:14-cv-00424-CG-C Document 1 Filed 09/11/14 Page 2 of 3
The Supreme Court struck down part ofthe Federal Defense of Marriage Act last year.
Uniled States v Windsor, /33.L Ct. 2675(20,13). Since that decision, several different federal
courts, now have ruled on the constitutionality of state bans on same-sex marriage. The Result: Over 20 conservative victories for those challenging the bans. Based on these decisiorq gay and lesbians, like all other adults, may choose a life-partner and dignit/ the relationship through marriage.
THE PLAINTIFFS MAINTAIN AND BELIEVE THAT: FIRST, The Alabama Marriage Protection Act, Alabama Code - Section 30-I-19 , and,
the State of Alabama's ban on marriage for same-sex couples prevents them from securing the protections that state and federal law provides to married couples. Alabama law subjects samesex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for the plaintiffs and other couples to get the federal protection that come with marriage is for them to go out of state to marry. The Alabama law violates the plaintiffs's fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any law created by any government body including those of the State of Alabama, that limit marriages to a "husband" and '\vife," are unconstitutional as applied to same-sex couples.
SECOND, The Alabama Marriage Protection Act, Alabama Code - Section 30-I-19 , and the State of Alabama's ban on marriage for same-sex couples prevents them from securing their religious right under the First Amendment to the United States Constitution. It is the plaintiffs belief that their marriage which was officiated and approved as a sacrament by their church should not be hindered by the State of Alabama. The law Alabama Code 30-1-19 itself states that "Marriage is a sacred covenant, solemnized between a man and a woman." ft is the

Case 1:14-cv-00424-CG-C Document 1 Filed 09/11/14 Page 3 of 3
belief of the plaintiffs that maniage is a sacred covenant, and that the State of Alabama has never and will never have a constitutional right or have a special interest in encouraging, supporting, and protecting the rights of religious persons of the State of Alabama to discriminate against same-sex couples to marry: The plaintiffs are having their Holy Sacrament of Maniage outlawed by the State of Alabama and that law should be overturned by the court.
We therefore are asking the court to immediately overturn Alabama state Code, Section 30-I-19 which is titled the "Alabama Marriage Protection Act, " because it violates our constitutional rights and there it is unconstitutional.
We went to the Mobile County Courthouse and was denied our right to apply for a Alabama State marriage license. The window worker , Sandie said that there was no chance. She directed us to a Margret Temleton, her supervisor, who said it was illegal in Alabama and then a Mr. Marks Owens, her directoq later called us and said under Alabama State Code 30-l-19 we could not be married because we were of the same sex. We were married by the Bishop of the United Gospel Holiness Churches of America under their church laws. Alabama has no right to make an act ofthe church illegal.

James N. Strawser 9231 Amber Ct Mobile, AL 36695 251-375-0238

John E. Humphrey
9231 Amber Ct Mobils AL 36695 2s1-30r-2966 (cell)

 
 Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN E.

)

HUMPHREY; ROBERT POVILAT and

)

MILTON PERSINGER; MEREDITH

)

MILLER and ANNA LISA CARMICHAEL; )

KRISTY SIMMONS and MARSHAY

)

SAFFORD; KRISTIE OGLE and JENNIFER )

OGLE; KEITH INGRAM and ALBERT

)

HALLOWAY PIGG III; GARY WAYNE

)

WRIGHT II and BRANDON MABREY,

)

individually and as Class Representatives,

)

)

)

Plaintiffs,

)

)

v.

)

)

LUTHER STRANGE, in his official

)

capacity as Attorney General for

)

the State of Alabama; DON DAVIS,

)

in his official capacity as Probate Judge of

)

Mobile County, Alabama, individually and as )

Class Representative; and TIM RUSSELL, in )

his official capacity as Probate Judge of

)

Baldwin County, Alabama, individually and as )

Class Representative,

)

)

Defendants.

)

Civil Action No. 14-0424-CG-C

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CLASS ACTION

1. Alabama law denies the issuance of marriages licenses to same-sex couples, and

refuses to recognize the marriages of same-sex couples lawfully entered in other jurisdictions. See

Ala. Const., art. I, § 36.03; Ala. Code § 30-1-19. In so doing, Alabama violates the guarantees of

the Fourteenth Amendment to the Constitution of the United States.

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2. The Named Plaintiffs and the members of the Plaintiff Class1 are same-sex couples who live in Alabama. The situations faced by these couples are similar to those faced by many other same-sex couples in Alabama who are denied the basic rights, privileges, and protections of marriage for themselves and their children. The Named Defendants and the members of the Defendant Class2 are Alabama state officials whose duties include enforcement, under color of state law, of Alabama’s prohibition on the issuance of marriages licenses to same-sex couples and its refusal to recognize the lawful marriages of same-sex couples.
3. Alabama, like other states, encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations upon married couples. In exchange, Alabama receives the well-established benefits that marriage brings: stable, supportive families that create loving homes for children and contribute to both the social and economic well-being of Alabama.
4. Alabama’s refusal to permit same-sex couples to marry and to recognize the existing marriages of same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution. This Court should so declare and issue an injunction requiring Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to Plaintiffs and members of the Plaintiff Class without regard to their status as same-sex couples, and requiring all members of the Defendant Class to recognize the marriages of same-sex couples for all purposes under state law.
5. Named Plaintiffs James N. Strawser and John E. Humphrey, Robert Povilat and Milton Persinger, Meredith Miller and Anna Lisa Carmichael, and Kristy Simmons and Marshay
1 The Plaintiff Class is defined in paragraph 38 below. The Named Plaintiffs and the members of the Plaintiff class are collectively referred to herein as “Plaintiffs.”
2 The Defendant Class is defined in paragraph 45 below. The Named Defendants and the members of the Defendant Class are collectively referred to herein as “Defendants.”
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Safford are same-sex couples who have married in Alabama, pursuant to marriage licenses duly issued by an Alabama probate judge as a result of the Court’s preliminary injunction in this action. Named Plaintiffs Kristie Ogle and Jennifer Ogle, Keith Ingram and Albert Halloway Pigg III, Gary Wayne Wright II and Brandon Mabrey, are unmarried same-sex couples in committed relationships who live in Alabama and desire to marry in their home state. Plaintiffs meet all the requirements Alabama imposes for the issuance of marriage licenses and the recognition of lawful marriages except that they are same-sex couples.
6. Plaintiffs wish to publicly declare their love and commitment before their family, friends, and community; to join their lives together and to enter into a legally binding commitment to one another; and to share in the protections and security that marriage provides. Plaintiffs have strong ties to Alabama and marriage is of immense personal importance to them. Plaintiffs are spouses in every sense except for their inability to legally marry under Alabama law.
7. Alabama’s exclusion of same-sex couples from marriage and refusal to respect the marriages of legally married same-sex couples adversely impact the Plaintiff couples in real and significant ways. When Alabama withholds a marriage license from a same-sex couple, or refuses to recognize a same-sex couple’s valid marriage, it circumscribes the affected individuals’ basic life choices, classifies the affected individuals and couples in a manner that denies them the public recognition and myriad benefits of marriage, prevents the couple from making a legally binding commitment to one another and from being treated by the government and by others as a family rather than as unrelated individuals, and harms society by burdening and disrupting committed families and preventing couples from being able to fully protect and assume responsibility for one another and their children.
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8. Alabama’s exclusion of same-sex couples from marriage and refusal to respect existing marriages undermines the Plaintiff couples’ ability to achieve their life goals and dreams, disadvantages them financially, and denies them “dignity and status of immense import.” United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Alabama’s disparate treatment of same-sex couples “tells those couples and all the world that their [relationships] are unworthy” of recognition. Windsor, 133 S. Ct. at 2694. By singling out same-sex couples and their families and excluding them from any type of marital protection, Alabama “humiliates . . . children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694.
9. Alabama’s exclusion of same-sex couples from marriage and its refusal to respect the marriages of same-sex couples deprive the Plaintiffs of their fundamental right to marry and infringe upon their constitutionally protected interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
10. Alabama’s treatment of Plaintiffs is subject to strict scrutiny because it burdens fundamental constitutional rights. Alabama’s treatment of Plaintiffs cannot survive any level of constitutional scrutiny, however, because it does not rationally further any legitimate government interest, but serves only to injure and humiliate same-sex couples and their families.
11. Plaintiffs seek a declaration from this Court that Ala. Const., art. I, § 36.03 and Ala. Code § 30-1-19 violate the Fourteenth Amendment to the United States Constitution, and a judgment permanently enjoining Defendants from enforcing those provisions and any other Alabama laws or orders that prohibit same-sex couples from marrying within the state or that prohibit recognition of valid marriages of same-sex couples.
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12. Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.
13. Plaintiffs further seek attorney fees pursuant to 42 U.S.C. § 1988. 14. Plaintiffs state the below causes of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 15. The declaratory and injunctive relief requested in this action is sought against each Defendant; against each Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with any Defendant, or under any Defendant’s supervision, direction, or control.
JURISDICTION AND VENUE 16. This action arises under the Constitution and laws of the United States, including Article III, Section 1, of the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is
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conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction supporting Plaintiffs’ claims for attorneys’ fees is conferred by 42 U.S.C. § 1988.
17. Venue is proper in the Southern District of Alabama pursuant to 28 U.S.C. § 1391(b). All of the events alleged herein occurred within the State of Alabama, and all of the parties are and were residents of the State of Alabama at all relevant times.
PARTIES A. The Named Plaintiffs 18. Named Plaintiffs James Strawser and John Humphrey, who reside in Mobile County, Alabama, applied for a marriage license in that county but were denied a license because of Alabama’s constitutional and statutory prohibitions on marriage for same-sex couples. Plaintiff Strawser is facing health issues requiring surgery that put his life at great risk. Prior to previous hospitalizations for surgery, Plaintiff Strawser had given Plaintiff Humphrey a medical power of attorney, but was told by the hospital that the facility would not honor the document because Humphrey was not a family member or spouse. In addition, Plaintiff Strawser’s mother faces health issues, and he is concerned that Humphrey will not be permitted to assist his mother with her affairs should Strawser pass away in the near future. On February 9, 2015, the effective date of this Court’s entry of an order and preliminary injunction declaring Alabama’s marriage ban for same-sex couples unconstitutional, Plaintiffs Strawser and Humphrey again appeared at Defendant Davis’s office in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court clarified his legal obligations. As a result of this Court’s further order of February 12, 2015, granting a preliminary injunction in this action, Plaintiffs Strawser and Strange married in Alabama pursuant to a marriage license issued by Defendant Davis.
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19. Named Plaintiffs Robert Povilat and Milton Persinger have been in a committed relationship for two years and reside in Mobile County, Alabama. Plaintiff Povilat has survived two bouts of prostate cancer and fears that he could be diagnosed with cancer again. The couple wishes to be married in Alabama, because, among other things, it is extremely important to them that Plaintiff Persinger be permitted to care for Plaintiff Povilat should further health problems arise. On February 9, 2015, Plaintiffs Povilat and Persinger appeared at Defendant Davis’s office in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court clarified his legal obligations. As a result of this Court’s further order of February 12, 2015, granting a preliminary injunction in this action, Plaintiffs Povilat and Persinger married in Alabama pursuant to a marriage license issued by Defendant Davis.
20. Named Plaintiffs Meredith Miller and Anna Lisa Carmichael have been in a committed relationship for almost 9 years and reside in Mobile County, Alabama. The couple hope to have children, but are concerned that if they are not married, their children will be exposed to the damaging message that their family is not as worthy of dignity and respect as other families in Alabama and that their children will be denied important legal protections that come with marriage. On February 9, 2015, Plaintiffs Miller and Carmichael appeared at Defendant Davis’s office in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court clarified his legal obligations. As a result of this Court’s further order of February 12, 2015, granting a preliminary injunction in this action, Plaintiffs Miller and Carmichael married in Alabama pursuant to a marriage license issued by Defendant Davis.
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21. Named Plaintiffs Kristy Simmons and Marshay Safford have been in a committed relationship for more than 2 years and reside in Mobile County, Alabama. The couple are raising together three of Plaintiff Simmons’s children from a prior relationship. They want to get married in order to have a legal family relationship and to build stability for their children. In addition, Simmons has been diagnosed with Wegener’s Granulomatosis, a rare disorder that causes her blood vessels to become inflamed and that can damage major organs. Being able to marry is especially important to the couple that Plaintiff Safford and their children have legal protections in the event that Plaintiff Simmons becomes ill or incapacitated. On February 9, 2015, Plaintiffs Simmons and Safford appeared at Defendant Davis’s office in Mobile, Alabama, to apply for a marriage license, but were unable to obtain a license because Defendant Davis elected to cease issuance of marriage licenses in Mobile County until this Court clarified his legal obligations. As a result of this Court’s further order of February 12, 2015, granting a preliminary injunction in this action, Plaintiffs Simmons and Safford married in Alabama pursuant to a marriage license issued by Defendant Davis.
22. Named Plaintiffs Kristie Ogle and Jennifer Ogle have been in a committed, loving relationship for 22 years and have lived in Alabama for most of the last 14 years. They have a child who was born in the state in 2002. They wish to marry in order to obtain legal recognition for their family and to build stability for their child. Each day that they are not permitted to marry, they and their child experience uncertainty about whether they will be treated as family members in the event of an emergency. On March 4, 2015, they went to Defendant Davis’s office in Mobile County to obtain a marriage license but were unable to obtain one. On March 5, 2015, Kristie Ogle called Defendant Russell’s office in Baldwin County and was told that while Defendant
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Russell is issuing marriage licenses to opposite-sex couples, he is not issuing licenses to same-sex couples.
23. Named Plaintiffs Keith Ingram and Albert Halloway Pigg III, have been in a committed, loving relationship for approximately one year. They moved together to Dothan, Alabama, the town in which Plaintiff Ingram grew up, to be near his family. They wish to marry in order to obtain legal recognition for their family and to declare their commitment to each other before their loved ones and community. Each day that they are not permitted to be married, they experience uncertainty about whether they will be treated as family members in the event of an emergency. Plaintiffs Ingram and Pigg drove to the probate office in the county in which they live, Houston County, on February 10, 2015, and again on February, 17, 2015, to obtain a marriage license, but were refused. On March 5, 2015, Plaintiff Ingram called Defendant Russell’s office in Baldwin County and was told that while Defendant Russell is issuing marriage licenses to opposite-sex couples, he is not issuing licenses to same-sex couples.
24. Named Plaintiffs Gary Wayne Wright II and Brandon Mabrey have been in a committed, loving relationship for eighteen years and have lived together in Alabama for six years. Plaintiff Wright served in the U.S. Navy and was honorably discharged under the federal government’s now-repealed Don’t Ask, Don’t Tell policy when he was asked to reveal his sexual orientation and admitted that he is gay. Since that time, the couple have fought together to receive veteran’s benefits and coverage for Wright, including coverage for treatment for a muscular disorder that leaves him dependent on a wheelchair. They wish to marry in order obtain legal recognition for their family legal and to declare their commitment to each other before their loved ones and community. Each day that they are not permitted to be married, they experience uncertainty about whether they will be treated as family members in the event of an emergency.
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After this Court declared Alabama’s exclusion of same-sex couples from civil marriage unconstitutional, the couple drove to the probate office in Marshall County, the county in which they live, to obtain a marriage license. When they arrived, they were told that the Marshall County Probate Judge refused to issue marriage licenses to same-sex couples, although he would continue to issue marriage licenses to couples of different sexes. Plaintiff Wright visited the Marshall County Probate Judge’s Office again on March 2, 2015, to obtain a marriage license, and a clerk told him that the probate judge would no longer issue marriage licenses to anyone. On March 5, 2015, Plaintiffs Wright and Maybrey called Defendant Russell’s office in Baldwin County and were told that while Defendant Russell is issuing marriage licenses to opposite-sex couples, he is not issuing licenses to same-sex couples.
B. The Named Defendants 25. Named Defendant Luther Strange is Attorney General of the State of Alabama. Defendant Strange is responsible for enforcing and ensuring compliance with the state constitution and statutes prescribed by the legislature, including Alabama’s law barring same-sex couples from marriage. Attorney General Strange was acting under color of state law at all times relevant to this complaint. He is sued in his official capacity. 26. Named Defendant Don Davis is Probate Judge of Mobile County, Alabama. Under Alabama law, his administrative duties include issuance of marriage licenses. His duties in issuing marriage licenses are ministerial in nature, and not part of any judicial or discretionary function. Defendant Davis was acting under color of state law at all times relevant to this complaint. He is sued in his official capacity. 27. Named Defendant Tim Russell is Probate Judge of Baldwin County, Alabama. Under Alabama law, his administrative duties include issuance of marriage licenses. His duties in
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issuing marriage licenses are ministerial in nature, and not part of any judicial or discretionary function. Defendant Russell was acting under color of state law at all times relevant to this complaint. He is sued in his official capacity.
28. Defendants, through their respective duties and obligations, are responsible for enforcing Alabama’s laws barring same-sex couples from marriage and Alabama’s policy of refusing to recognize the valid marriages of same-sex couples. Each Defendant, and those subject to their supervision and control, have caused the harms alleged, and will continue to injure Plaintiffs if not enjoined. Accordingly, the relief requested is sought against all Defendants, as well as all persons under their supervision and control, including their officers, employees and agents.
GENERAL ALLEGATIONS Alabama’s Laws Barring Same-Sex Couples from Marriage 29. The “Sanctity of Marriage Amendment” to the Alabama Constitution provides, among other things, that “[n]o marriage license shall be issued in the State of Alabama to parties of the same sex,” and that “[t]he State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.” Ala. Const., art. I, § 36.03. The Alabama Code contains identical provisions. Ala. Code § 30-1-19. Harms Caused by Alabama’s Laws Barring Same-Sex Couples from Marriage 30. Plaintiffs are residents of Alabama who experience the same joys and challenges of family life as their neighbors, co-workers, and other community members who may marry freely and whose legal marriages are respected under Alabama law. The Plaintiffs are productive,
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contributing citizens who are denied the same legal shelter, dignity, and respect afforded by Alabama to other families through access to the universally celebrated status of marriage.
31. Alabama’s exclusion of the Plaintiffs from marriage, and Defendants’ enforcement of that exclusion, as well as Alabama’s refusal to respect the marriages of legally married samesex couples, subject the Plaintiff couples to an inferior “second class” status as Alabama citizens relative to the rest of the community. These laws deprive the Plaintiff couples of equal dignity, security, and legal protections afforded to other Alabama families.
32. In addition to stigmatizing an entire class of Alabama’s population as second-class citizens, Alabama’s prohibition on marriage by same-sex couples, and its refusal to recognize valid marriages from other jurisdictions, deprive same-sex couples of critically important rights and responsibilities that married couples rely upon to secure their marriage commitment and safeguard their families
33. In reliance on this Court’s orders of January 23, 26, and 28, 2015, which declared Alabama’s laws excluding same-sex couples from marriage unconstitutional and made clear that the federal Constitution requires Alabama officials to issue marriage licenses to same-sex couples and to recognize the valid marriages of same-sex couples for all purposes, Named Plaintiffs James N. Strawser and John E. Humphrey, Robert Povilat and Milton Persinger, Meredith Miller and Anna Lisa Carmichael, and Kristy Simmons and Marshay Safford appeared in person at the offices of Defendant Davis on February 9, 2015, to apply for a marriage license. Each couple was unable to obtain a license. The reason each couple was unable to obtain a marriage license from Defendant Davis was that they are a same-sex couple, and Defendant Davis elected to close the marriage licensing office in Mobile until this Court issued further clarifications concerning his legal obligations with respect to issuance of marriage licenses to same-sex couples. As a result of this
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Court’s further order and preliminary injunction issued on February 12, 2015, each of these couples was able to marry in Alabama pursuant to a marriage license issued by Defendant Davis.
34. Named Plaintiffs Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Halloway Pigg III, Gary Wayne Wright II and Brandon Mabrey have been unable to obtain a marriage license from Defendant Russell. The reason each couple was unable to obtain a marriage license from Defendant Russell was that they are a same-sex couple. Defendant Russell is not issuing marriage licenses to same-sex couples.
35. Named Plaintiffs Kristi Ogle and Jennifer Ogle attempted to obtain a marriage license from Defendant Davis but were unable to do so because he has ceased issuing marriage licenses.
36. In addition, in the absence of the preliminary injunction previously entered by the Court in this action, Defendant Strange would continue to deny recognition to the marriages of the Named Plaintiffs or other same-sex couples validly entered into in Alabama or any other jurisdiction. A permanent injunction is therefore warranted to ensure that Defendant Strange will recognize any marriage that Plaintiffs enter into as a result of this Court’s orders in this action.
37. Like the Named Plaintiffs, each member of the Plaintiff Class either has been unable to marry his or her same-sex partner in Alabama because of the marriage ban or has validly married a partner of the same sex but is treated as a legal stranger to his or her spouse under Alabama law.
CLASS ALLEGATIONS The Plaintiff Class
38. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples
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who are injured by Alabama’s marriage ban (the “Plaintiff Class”). The Plaintiff Class, as

proposed by Named Plaintiffs, consists of all persons in Alabama who wish to obtain a marriage

license in order to marry a person of the same sex and to have that marriage recognized under

Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws

prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their

marriages.

39. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ.

P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in Alabama

who are married or would marry if Alabama law permitted them to do so. Alabama’s marriage

ban, and Defendants’ enforcement of it, prevents all of those couples from either marrying or

having their valid marriage from another jurisdiction recognized in the State.

40. There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:

a. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of due process by denying Plaintiffs the fundamental right to

marry, and by depriving them of constitutionally protected interests in

liberty, dignity, privacy, autonomy, family integrity, and intimate

association;

b. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of equal protection by discriminating on the basis of sex and

sexual orientation; and

c.

the level of constitutional scrutiny applicable to governmental

discrimination based on sexual orientation.

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41. The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their claims all arise from Alabama’s marriage ban and are based on the same constitutional provisions and arguments.
42. Named Plaintiffs are capable of fairly and adequately protecting the interests of the Plaintiff Class because they do not have any interests antagonistic to the class. Named Plaintiffs and the Plaintiff Class both seek to enjoin enforcement of Alabama’s marriage ban and obtain a declaration that the ban violates the guarantees of the Fourteenth Amendment. Moreover, Named Plaintiffs are represented by counsel experienced in complex civil rights litigation, including litigation seeking the freedom to marry for same-sex couples in many states across the nation.
43. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, resulting in some Alabama same-sex couples having access to marriage, or recognition for their valid marriage, and others not. In addition, prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
44. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants’ enforcement of the marriage ban applies generally to the class, by precluding all class members from marrying or having a valid marriage from another jurisdiction recognized. The injunctive and declaratory relief sought is appropriate respecting the class as a whole.
The Defendant Class 45. Plaintiffs bring this action against the Named Defendants both individually and, pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all Alabama probate judges who are or may enforce Alabama’s marriage ban (the “Defendant
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Class”). The Defendant Class, as proposed by Named Plaintiffs, consists of all Alabama county

probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance

of marriage licenses to same-sex couples and refusing to recognize their marriages.

46. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ.

P. 23(a)(1). Upon information and belief, more than sixty (60) county probate judges in Alabama

currently are enforcing the marriage ban and are declining to issue marriage licenses to otherwise

qualified same-sex couples. Defendants’ enforcement of the marriage ban prevents same-sex

couples from either marrying or having their valid marriage from another jurisdiction recognized

in the State.

47. There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:

a. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of due process by denying Plaintiffs the fundamental right to

marry, and by depriving them of constitutionally protected interests in

liberty, dignity, privacy, autonomy, family integrity, and intimate

association;

b. whether Alabama’s marriage ban violates the Fourteenth Amendment’s

guarantee of equal protection by discriminating on the basis of sex and

sexual orientation; and

c.

the level of constitutional scrutiny applicable to governmental

discrimination based on sexual orientation.

48. The claims against the Named Defendants are typical of those of the claims against

the Defendant Class, as their claims all arise from Alabama’s marriage ban and are based on the

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same constitutional provisions and arguments. The defenses expected to be asserted by the Named Defendants likewise are common to the members of the Defendant Class.
49. Named Defendants are capable of fairly and adequately protecting the interests of the Defendant Class because they do not have any interests antagonistic to the class. Named Defendants and the Defendant Class both assert that they are bound to enforce Alabama’s marriage ban. Moreover, the Attorney General of Alabama is named herein as a Defendant, asserts that the marriage ban does not violate the guarantees of the Fourteenth Amendment, and is capable of fairly and adequately protecting the interests of the Defendant Class.
50. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because prosecution of separate actions against individuals would create a risk of inconsistent and varying adjudications, resulting in some Alabama probate judges being required to issue marriage licenses to same-sex couples and required to respect the marriages of same-sex couples, and others not. In addition, prosecution of separate actions against class members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
51. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Plaintiffs’ desire to obtain marriage licenses and to have their marriages respected applies generally to the Defendant Class, as Alabama couples may request marriage licenses from any county probate judge or may seek to have a valid marriage from another jurisdiction recognized by any probate judge. The injunctive and declaratory relief sought is appropriate respecting the class as a whole.
17

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 18 of 22
CLAIMS FOR RELIEF First Claim for Relief: Alabama’s Ban on Marriage by Same-Sex Couples Deprives Plaintiffs of Their Fundamental Right to Marry under the Due Process and Equal Protection Clauses of the United States Constitution 52. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 53. The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides that no “State [shall] deprive any person of life, liberty, or property, without due process or law.” U.S. CONST. AMEND. XIV § 1. The Due Process Clause protects individuals from arbitrary government intrusion into life, liberty, and property. 54. Under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex; accordingly Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other Alabama law, regulation, policy, or practice that excludes same-sex couples from marriage do not withstand constitutional scrutiny. 55. As Alabama’s Attorney General, Defendant Strange’s duties and actions to enforce Alabama’s exclusion of same-sex couples from marriage, violate Plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association. 56. As Probate Judge of Mobile County, Alabama, Defendant Davis ensures compliance with Alabama’s exclusion of same-sex couples from marriage by, for example, refusing to issue marriage licenses to same-sex couples. This violates Plaintiffs’ fundamental right
18

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 19 of 22
to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
57. As Probate Judge of Baldwin County, Alabama, Defendant Russell ensures compliance with Alabama’s exclusion of same-sex couples from marriage by, for example, refusing to issue marriage licenses to same-sex couples. This violates Plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
58. Defendants cannot satisfy the requirements of due process because Alabama’s exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the strict level of scrutiny that applies to deprivation of the fundamental right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
59. The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. There is no relevant distinction between same-sex couples and opposite-sex couples with respect to marriage.
60. Alabama’s exclusion of same-sex couples from marriage is subject to heightened scrutiny under the Equal Protection Clause because it discriminates on the basis of sexual orientation and gender, and because it selectively deprives a class of persons of fundamental rights.
61. Defendants cannot satisfy the requirements of equal protection because Alabama’s exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the heightened level of scrutiny that applies.
19

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 20 of 22
62. Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other Alabama law, regulation, policy, or practice that excludes same-sex couples from marriage violate the Due Process and Equal Protection guarantees of the United States Constitution, both facially and as applied to the Plaintiff couples.
63. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause them irreparable harm, and Plaintiffs are entitled to declaratory and injunctive relief on this basis.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: 64. Declaring that the provisions of and enforcement by Defendants of Alabama’s laws excluding same-sex couples from marriage, including Ala. Const., art. I, § 36.03, Ala. Code § 301-19, and any other sources of state law that exclude same-sex couples from marrying violate Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States Constitution; 65. Declaring that the practice, by Defendants and their subordinates, of refusing to recognize the marriages of same-sex couples violates Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States Constitution; 66. Declaring that the any marriages validly entered into by Plaintiffs in any jurisdiction, including Alabama, are valid in the State of Alabama; 67. Temporarily, preliminarily, and permanently enjoining enforcement by Defendants of Ala. Const., art. I, § 36.03, Ala. Code § 30-1-19, and any other sources of state law, policy, or practice that exclude Plaintiffs from marriage or that refuse recognition of the marriages of Plaintiffs;
20

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 21 of 22

68. Requiring Named Defendants Davis and Russell and the members of the Defendant

Class to issue marriage licenses to Plaintiffs and members of the Plaintiff Class, pursuant to the

same restrictions and limitations applicable to opposite-sex couples, and without regard to the

gender or sexual orientation of the applicants, and to recognize the marriages thereby validly

entered into;

69. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant

to, inter alia, 42 U.S.C. § 1988 and other applicable laws;

70. Awarding pre- and post-judgment interest at the lawful rate as allowed by law; and

71. Granting such other and further relief as the Court deems just and proper and any

other relief as allowed by law.

DATED: March 19, 2015

Respectfully submitted,

NATIONAL CENTER FOR LESBIAN RIGHTS

By: /s/ Shannon P. Minter

Shannon P. Minter * Christopher F. Stoll* National Center for Lesbian Rights 1100 H Street, NW, Suite 540 Washington, DC 20005 Telephone: (202) 734-3545 Facsimile: (415) 392-8442 Email: sminter@nclrights.org Email: cstoll@nclrights.org

Heather Fann Boyd, Fernambucq, Dunn & Fann, P.C. 3500 Blue Lake Drive, Suite 220 Birmingham, AL 35243 Telephone: (205) 930-9000 Facsimile: (205) 930-9010 Email: hfann@bfattorneys.net

Randall C. Marshall (MARSR3023) ACLU Foundation of Alabama

21

Case 1:14-cv-00424-CG-C Document 95 Filed 03/19/15 Page 22 of 22
P.O. Box 6179 Montgomery, Alabama 36106-0179 Tel: (334) 420-1741 Fax: (334) 269-5666 Email: rmarshall@aclualabama.org David Dinielli* Cal. Bar No. 177904 Scott D. McCoy* N.Y. Bar No. 3970803 Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8200 david.dinielli@splcenter.org scott.mccoy@splcenter.org Ayesha N. Khan* D.C. Bar No. 426836 Zachary A. Dietert* D.C. Bar No. 1003784 Americans United for Separation of Church and State 1901 L Street, N.W., Suite 400 Washington, D.C. 20036 202-466-3234 email: khan@au.org email: dietert@au.org Attorneys for Plaintiffs *Admitted pro hac vice
22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN )

E. HUMPHREY,

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for

)

the State of Alabama,

)

)

Defendant.

ORDER

This matter is before the court on Plaintiffs’ motion for preliminary and

permanent injunction. (Doc. 15). An evidentiary hearing was held and sworn

testimony was offered by Plaintiffs in support of their motion on December 18, 2014.

For the reasons stated below, the court finds that Plaintiffs are entitled to

preliminary injunctive relief.

The decision to grant or deny a preliminary injunction “is within the sound

discretion of the district court...” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.

2002). This court may grant a preliminary injunction only if the plaintiff

demonstrates each of the following prerequisites: (1) a substantial likelihood of

success on the merits; (2) a substantial threat irreparable injury will occur absent

issuance of the injunction; (3) the threatened injury outweighs the potential damage

the required injunction may cause the non-moving parties; and (4) the injunction

would not be adverse to the public interest. Id., 287 F.3d at 1329; see also

McDonald’s Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). “In this

Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the “burden of persuasion” ‘ as to the four requisites.” McDonald’s Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a preliminary injunction is issued only when “drastic relief” is necessary.
This case is brought by a same-sex couple, James Strawser and John Humphrey, who have been denied the right to a legal marriage under the laws of Alabama. The couple resides in Mobile, Alabama and participated in a church sanctioned marriage ceremony in Alabama. Strawser and Humphrey applied for a marriage license in Mobile County, Alabama, but were denied.
Strawser testified that he has health issues that will require surgery that will put his life at great risk. Strawser’s mother also has health issues and requires assistance. Prior to previous surgeries, Strawser had given Humphrey a medical power of attorney, but was told by the hospital where he was receiving medical treatment that they would not honor the document because Humphrey was not a family member or spouse. Additionally, Strawser is very concerned that Humphrey be permitted to assist Strawser’s mother in all of her affairs if Strawser does not survive surgery.
Plaintiffs contend that Alabama’s marriage laws violate their rights to Due Process, Equal Protection and the free exercise of religion. This court has determined in another case, Searcy v. Strange, SDAL Civil Action No. 14-00208-CGN, that Alabama’s laws prohibiting and refusing to recognize same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth
2

Amendment to the United States. In Searcy, this court found that the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act restrict the Plaintiffs’ fundamental marriage right and do not serve a compelling state interest. The Attorney General of Alabama has asserted the same grounds and arguments in defense of this case as he did in the Searcy case. Although the Plaintiffs in this case seek to marry in Alabama, rather than have their marriage in another state recognized, the court adopts the reasoning expressed in the Searcy case and finds that Alabama’s laws violate the Plaintiffs’ rights for the same reasons. Alabama’s marriage laws violate Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by prohibiting same-sex marriage. Said laws are unconstitutional.
As such, Plaintiffs have met the preliminary injunction factors. Plaintiffs’ inability to exercise their fundamental right to marry has caused them irreparable harm which outweighs any injury to defendant. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights “unquestionably constitutes irreparable harm.”). Moreover, Strawser’s inability to have Humphrey make medical decisions for him and visit him in the hospital as a spouse present a substantial threat of irreparable injury. Additionally, “it is always in the public interest to protect constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). Therefore, the Plaintiffs have met their burden for issuance of a preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.
3

Accordingly, the court hereby ORDERS that the Alabama Attorney General is prohibited from enforcing the Alabama laws which prohibit same-sex marriage. This injunction binds the defendant and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit same-sex marriage.
Defendant stated at the hearing that if the court were to grant Plaintiffs’ motion, Defendant requests a stay of the injunction pending an appeal. As it did in the Searcy case, the Court hereby STAYS execution of this injunction for fourteen days to allow the defendant to seek a further stay pending appeal in the Eleventh Circuit Court of Appeals. If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period, this stay will be lifted on February 9, 2015.
DONE and ORDERED this 26th day of January, 2015. /s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN E. HUMPHREY,
Plaintiffs, vs. STATE OF ALABAMA,
Defendant.

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) )

ORDER

This matter is before the court on Plaintiffs’ emergency motion for leave to

file an amended complaint and for preliminary injunction and/or temporary

restraining order (Doc. 43), and the response thereto of Attorney General Strange

(Doc. 44). For the reasons explained below, the court finds that Plaintiffs’

emergency motion for leave to amend should be granted and that a hearing should

be set on Plaintiffs’ motion for preliminary injunction.

I. Motion to Amend

Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings

“shall be freely given when justice so requires.” See Fed. R. Civ. P. 15(a). The

Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court’s

discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir.

2005). “Unless a substantial reason exists to deny leave to amend, the discretion of

the District Court is not broad enough to permit denial.” Florida Evergreen Foliage

v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation

omitted). That said, leave to amend can be properly denied under circumstances of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted).
Plaintiffs Strawser and Humphrey, who until recently had proceeded pro se, are now represented by counsel and wish to clarify their causes of action and add new parties. Plaintiffs’ motion to amend seeks to add three additional same-sex couples as plaintiffs and to add Don Davis as a defendant in his official capacity as Probate Judge of Mobile County, Alabama. The current Defendant, Attorney General Luther Strange does not oppose Plaintiffs’ request for leave to file an amended complaint. (Doc. 43). The same-sex couples Plaintiffs wish to add live in Alabama and like Strawser and Humphrey have allegedly been denied the basic rights, privileges, and protections of marriage for themselves and their children. Plaintiffs seek to join Judge Davis as a defendant because he allegedly refused to issue marriage licenses to all of the Plaintiffs’ named in the proposed Amended Complaint, despite this court having granted a preliminary injunction to Strawser and Humphrey (Doc. 29) and despite this court’s ruling in Searcy v. Strange, SDAL Civil Action No. 14-00208-CGN, that Alabama’s laws prohibiting and refusing to recognize same-sex marriage are unconstitutional. The proposed amendment will not cause undue delay or prejudice, there is no indication of any bad faith or
2

dilatory motive on the part of the movants, and the amendment does not appear to be futile. There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file an amended complaint is hereby GRANTED. II. Motion for Preliminary Injunction
After reviewing Plaintiff’s motion, the court finds it appropriate to set a preliminary injunction hearing. A hearing on Plaintiffs’ motion for preliminary injunction is hereby set for February 12, 2015, at 1:00 p.m., in Courtroom 2B, United States Courthouse, Mobile, Alabama.
Counsel for plaintiffs has averred that his co-counsel has spoken with Joseph Michael Druhan, Jr., counsel for Judge Don Davis, and that Mr. Druhan agreed to accept service by e-mail of the motion to amend the complaint and associated papers. (Doc. 43-2). The clerk of court is directed to provide Mr. Druhan, a member of the bar of this court, with a copy of this Order.
The court notes that Attorney General Luther Strange is already subject to an injunction from this court which prohibits him from enforcing Alabama’s marriage laws to the extent they prohibit same-sex marriage or the recognition of same-sex marriages legally performed in other states. Accordingly, Attorney General Strange’s presence is not required at the preliminary injunction hearing set above.
DONE and ORDERED this 10th day of February, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
3

 
 Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,

)

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for

)

the State of Alabama and DON

)

DAVIS in his official capacity as

)

Probate Judge of Mobile County, )

Alabama,

)

)

Defendants.

ORDER

This matter is before the court on Plaintiffs’ emergency motion for

preliminary injunction and/or temporary restraining order (Doc. 43), and the

response thereto of Attorney General Strange (Doc. 44). A hearing on Plaintiffs’

motion was held on February 12, 2015. Appearing at the hearing were counsel for

Plaintiffs, counsel for defendant Judge Don Davis and counsel for Plaintiffs in a

similar case, SDAL Civil Action No. 15-067-CG-C. For the reasons explained below,

the court finds that Plaintiffs’ motion for preliminary injunction should be granted.

The decision to grant or deny a preliminary injunction “is within the sound

discretion of the district court...” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.

2002). This court may grant a preliminary injunction only if the plaintiff

demonstrates each of the following prerequisites: (1) a substantial likelihood of

success on the merits; (2) a substantial threat irreparable injury will occur absent

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 2 of 8
issuance of the injunction; (3) the threatened injury outweighs the potential damage the required injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Id., 287 F.3d at 1329; see also McDonald’s Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). “In this Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the “burden of persuasion” as to the four requisites.” McDonald’s Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a preliminary injunction is issued only when “drastic relief” is necessary.)
This case is brought by four same-sex couples in committed relationships who reside in Mobile, Alabama and have been denied the right to a legal marriage under the laws of Alabama. This court previously issued a preliminary injunction in this case prohibiting the Alabama Attorney General, “his officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage” from enforcing the Alabama laws which prohibit same-sex marriage. (Doc. 29). That preliminary injunction was initially stayed, but went into effect on Monday, February 9, 2015, after the Eleventh Circuit Court of Appeals and the Supreme Court of the United States denied Attorney General Strange’s request to extend the stay. (Doc. 40, Exh. 1; Doc. 43, p. 2). On February 9, 2015, the Plaintiffs went to the Mobile County Probate office seeking marriage licenses, but found the office closed. (Doc.43-4, ¶ 5; Doc. 43-5, ¶ 5; Doc. 43-6, ¶ 5; Doc. 43-7, ¶ 5). Judge Don Davis of the Mobile County Probate Court issued a press release on February 9, 2015, stating
2

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 3 of 8
that the Marriage License Section of the Court’s Recording Division would remain closed pending further instructions from the United States District Court and the Chief Justice of the Alabama Supreme Court. (Doc. 43-3, and Hearing Exhibit 6). Judge Davis’s press release further stated that he had filed an action with the Alabama Supreme Court seeking guidance and clarification. (Doc. 43-3 and Hearing Exhibit 6). The Alabama Supreme Court has since dismissed that petition. (See Doc. 52 at p. 26 and Hearing Exhibit 10B). Judge Davis was not initially a defendant in this matter and was not named in the preliminary injunction that went into effect on February 9, 2015. However, the amended complaint filed on February 10, 2015, names Judge Davis in his official capacity as a defendant and seeks an injunction against Judge Davis prohibiting him from enforcing the Alabama laws, policies or practices that exclude Plaintiffs from marriage. (Doc. 47).
The Plaintiffs report that they all feel demeaned and humiliated by Alabama’s refusal to treat them equally. (Doc. 43-4, ¶ 3; Doc. 43-5, ¶ 3; Doc. 43-6, ¶ 3; Doc. 43-7, ¶ 3, Hearing Exhibits 1 - 4). Plaintiff James Strawser has serious health issues that will require surgery that will put his life at risk. (Doc. 43-4, ¶ 4, Hearing Exhibit 1). When Strawser had surgery in the past, he signed a form giving his partner, John Humphrey, legal power over Strawser’s medical decisions, but the hospital refused to honor that document because under Alabama law Humphrey was not a spouse or family member. (Doc. 43-4, ¶ 4, Hearing Exhibit 1).
Plaintiff Meredith Miller wants to marry her partner, Anna Lisa Carmichael to have the legal protections and security that only marriage provides. (Doc. 43-5, ¶ 3, Hearing Exhibit 2). Each day that they are excluded from marriage, they must
3

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 4 of 8
deal with uncertainty about whether they will be treated as family members if they experience a life crisis or emergency. (Doc. 43-5, ¶ 3, Hearing Exhibit 2). Miller and Carmichael hope to have children but are concerned that if they are not married their children will get the message that their family is not as worthy of dignity and respect as other families in Alabama and that their children will be denied important legal protections that come with marriage. (Doc. 43-5, ¶ 4, Hearing Exhibit 2).
Plaintiff Kristy Simmons wants to marry her partner, Marshay Safford, to have a legal family relationship and build stability for their children. (Doc. 43-6, ¶ 3, Hearing Exhibit 3). Each day that they are not permitted to marry they experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 43-6, ¶ 3, Hearing Exhibit 3). The legal protections of marriage are especially important to Simmons because she has a rare disorder called Wegener’s Granulomatosis that causes her blood vessels to become inflamed and can damage her major organs. (Doc. 43-6, ¶ 4, Hearing Exhibit 3).
Plaintiff Robert Povilat wants to marry his partner, Milton Persinger, in order to protect one another and have the legal protections and security that only marriage provides. (Doc. 43-7, ¶ 3, Hearing Exhibit 4). Mr. Povilat has survived two bouts of prostate cancer and fears that he could be diagnosed with cancer again. (Doc. 43-7, ¶ 4, Hearing Exhibit 4). Every day that they are not allowed to be married, they experience uncertainty about whether they will be treated as family members if they experience a crisis or an emergency. (Doc. 43-7, ¶ 3, Hearing Exhibit 4).
4

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 5 of 8
Plaintiffs contend that Alabama’s laws prohibiting same-sex marriage1
violate their rights under the United States Constitution to Due Process and Equal
1 The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment. (b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state. (c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract. (d) No marriage license shall be issued in the State of Alabama to parties of the same sex. (e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. (f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex. (g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage. ALA. CONST. ART. I, § 36.03 (2006).
The Alabama Marriage Protection Act provides: (a) This section shall be known and may be cited as the “Alabama Marriage Protection Act.” (b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
5

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 6 of 8
Protection. This court has determined in another case, Searcy v. Strange, SDAL
Civil Action No. 14-00208-CG-N, that Alabama’s marriage sanctity laws prohibiting
and refusing to recognize same-sex marriage violate the Due Process Clause and
Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. In Searcy, this court found that those laws restrict the Plaintiffs’
fundamental marriage right and do not serve a compelling state interest. Although
the Plaintiffs in this case seek to marry in Alabama, rather than have their
marriage in another state recognized in Alabama, the Court, as it previously did in
issuing the preliminary injunction against Attorney General Strange, adopts the
reasoning expressed in the Searcy case and finds that Alabama’s laws violate the
Plaintiffs’ rights for the same reasons. Alabama’s marriage sanctity laws violate
Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution by prohibiting same-sex
marriage. Said laws are unconstitutional.
After considering the circumstances of this case and in light of the court’s
conclusion that the laws in question are unconstitutional, the court finds that
Plaintiffs have met the preliminary injunction factors. Plaintiffs’ inability to
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract. (d) No marriage license shall be issued in the State of Alabama to parties of the same sex. (e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. ALA. CODE § 30-1-19.
6

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 7 of 8
exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant2. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights “unquestionably constitutes irreparable harm.”). Moreover, the Plaintiffs in this case have submitted declarations attesting to the specific reasons why their inability to become legally married in Alabama presents a substantial threat of irreparable injury. Additionally, “it is always in the public interest to protect constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). Therefore, the Plaintiffs have met their burden for issuance of a preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.
Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage 2 Indeed, at the hearing on the motion, counsel for Judge Davis made no assertion of any injury to the Judge in his official capacity that might result from the issuance of an injunction.
7

Case 1:14-cv-00424-CG-C Document 55 Filed 02/12/15 Page 8 of 8 Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.
DONE and ORDERED this 12th day of February, 2015. /s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER and JOHN )

E. HUMPHREY, et. al.,

)

)

Plaintiffs,

)

)

vs.

) CIVIL NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for )

the State of Alabama, et. al.,

)

)

Defendant.

ORDER

This matter is before the court on Plaintiffs’ Emergency Motion for

Enforcement of Injunction (Doc. 60), the Attorney General’s Response in

Opposition (Doc. 62), and Plaintiffs’ Reply (Doc. 64). This Court previously

enjoined the Attorney General and others in active concert and participation

with him from enforcing the Alabama laws prohibiting same-sex marriage

after ruling those laws are unconstitutional. (Doc. 29, p. 4).1 In light of this

injunction, Plaintiffs now move this Court to order the Attorney General to

exercise his control over litigation concerning the State of Alabama’s same-

sex marriage laws pending in the Alabama Supreme Court. (Doc. 60, p. 1).

After careful consideration and for the reasons set forth herein, Plaintiffs’

motion is DENIED.

1 This Court also addressed the constitutionality of the Alabama laws prohibiting same-sex marriage in a companion case, Searcy v. Strange, Southern District of Alabama Case No. 14-00208.

The Court is sympathetic to Plaintiffs’ position. After this Court issued orders declaring unconstitutional the Sanctity of Marriage Amendment, Ala. Const. art. I, § 36.03, and the Alabama Marriage Protection Act, Ala. Code § 30-1-19, the Chief Justice of the Alabama Supreme Court issued administrative orders directing Alabama probate judges to uphold those same laws. Then this Court ordered Mobile County Probate Judge Don Davis to issue licenses to same-sex couples. (Doc. 55). Concurrently, two organizations, the Alabama Policy Institute and the Alabama Citizens Action Program, petitioned the Alabama Supreme Court for a writ of mandamus directing all probate judges in Alabama to uphold the Marriage Amendment and the Marriage Protection Act.2 Plaintiffs are thus concerned a state mandamus prohibiting every probate judge from issuing same-sex marriage licenses may result, in conflict with a federal order commanding a named probate judge to issue such licenses. (Doc. 60, p. 9).
Despite the potential procedural imbroglio, Plaintiffs do not explain in their motion what precisely entitles them to further relief against the Attorney General at this time. Plaintiffs are citizens of Mobile County, and this Court previously ordered the Mobile County Probate Court to issue marriage licenses to them. It is also unclear how any Alabama Supreme
2 The Alabama Supreme Court action is case number 1140460, Ex Parte State ex rel. Alabama Policy Institute and Alabama Citizens Action Program v. Alan L. King, In his official capacity as Judge of Probate for Jefferson County, Alabama, et al.
2

Court ruling may or may not harm Plaintiffs. Plaintiffs have secured the injunctive relief they seek pursuant to a federal court order.
In addition to procedural concerns, Plaintiffs argue state law gives the Attorney General the authority to control all litigation concerning the interests of the State. See Ala. Code § 36-15-21. Thus the Attorney General is authorized to dismiss the mandamus action on behalf of the state. (Doc. 60, p. 7). By failing to act, Plaintiffs say the Attorney General is allowing “private parties to stand in his shoes and speak in the name of the State as petitioner relators” when he has the authority to control the prosecution of the mandamus. (Doc. 60, pp. 9 – 10). The mandamus action in the name of the State of Alabama, Plaintiffs argue, simply seeks to accomplish what the Attorney General is prohibited from doing directly. (Doc. 60, p. 10).
Plaintiffs, however, do not specifically show how the Attorney General is trying to get around this Court’s injunction. The Attorney General does not appear to be in concert with the Alabama Policy Institute or the Alabama Citizens Action Program, nor is he advising them. The Attorney General attests he “did not authorize or encourage the Petitioners” to file the petition for writ of mandamus. (Doc. 62, p. 4). Although the Attorney General arguably could seek to control the mandamus action, Ex parte King, 59 So. 3d 21, 25 - 29 (Ala. 2010), he is not obligated to do so by this Court’s orders.3
3 Whether the Attorney General can seize control over privately initiated litigation on behalf of the State remains a question of Alabama law. In contrast, it is clear the Attorney General can seize control over litigation
3

Furthermore, even if the Attorney General elected to exercise control over that proceeding and moved to dismiss the writ of mandamus petition, the Alabama Supreme Court is the arbiter responsible for determining the outcome of that case. (Doc. 62, p. 5).
Plaintiffs further argue the Attorney General’s action in permitting the writ of mandamus petition to proceed is akin to “improperly thwarting the denial of the State’s request for a stay of this Court’s orders by the Eleventh Circuit and the United States Supreme Court.” (Doc. 60, p. 8). Yet again, Plaintiffs present no concrete link between the Attorney General’s inaction and the state court action brought by two private entities. The Attorney General correctly observes that in this stage of the proceedings, the “injunctions forbid the Attorney General to take action; they do not compel action.” (Doc. 62, p. 4).
Finally, the mandamus action does not create any immediate conflict with the previous orders of this Court. (Doc. 62, p. 3). Because the Alabama Supreme Court has not yet decided whether it will even address the merits of the petition, any conflict is purely speculative at this point. Moreover, the Attorney General recognizes “[r]egardless of how the Alabama Supreme Court rules . . ., that ruling should not be an impediment to a person who is denied a marriage license from bringing a lawsuit against the Probate Judge who denied the license.” (Doc. 62, p. 3). In other words, non-party probate
initiated as the state by local prosecutors and other executive officers. See, e.g., State ex rel. Carmichael v. Jones, 41 So. 2d 280, 283 (Ala. 1949).
4

judges could nevertheless issue same-sex marriage licenses if sued and ordered by a federal court to do so.
In sum, Plaintiffs have not shown that they have suffered harm as a result of the Attorney General’s conduct that can be redressed through further relief against him. For these reasons, Plaintiff’s Emergency Motion for Enforcement of Injunction (Doc. 60) is DENIED.
DONE and ORDERED this 20th day of February, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,
Plaintiffs,
vs.
LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama and DON DAVIS in his official capacity as Probate Judge of Mobile County, Alabama,
Defendants.

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) ) ) )

ORDER

This matter is before the court on the emergency verified motion of Jefferson

County Probate Judge Alan King for leave to intervene as a party (Doc. 58), Judge

King’s motion for preliminary injunction (Doc. 59) and Attorney General Strange’s

opposition to the motion to intervene (Doc. 61). For the reasons explained below,

the court finds that Judge King’s motion to intervene should be denied.

Accordingly, the court will not entertain King’s motion for preliminary injunction.

BACKGROUND This case was brought by four same-sex couples in committed relationships who reside in Mobile, Alabama, and were denied the right to a legal marriage under the laws of Alabama. The Defendants in this case consist of the Alabama Attorney
1

General Luther Strange and Mobile County Probate Judge Don Davis. The court previously issued preliminary injunctions in this case prohibiting the Alabama Attorney General and Judge Davis and their “officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage” from enforcing the Alabama laws which prohibit same-sex marriage. (Docs. 29, 55). More specifically, Judge Davis was enjoined from refusing to issue marriage licenses to the Plaintiffs due to the Alabama laws which prohibit same-sex marriage. (Doc. 55). Attorney General Strange has appealed the preliminary injunction against him to the Eleventh Circuit Court of Appeals. (Doc. 31). All of the named plaintiffs in this case reportedly obtained marriage licenses following the entry of the preliminary injunction against Judge Davis. Jefferson County Probate Judge King now moves for leave to intervene in this matter and for a preliminary injunction to be entered against Attorney General Strange.
DISCUSSION Judge King moves for leave to intervene as of right or, in the alternative, by permission. Intervention by right is permitted upon timely application by anyone who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
2

FED. R. CIV. P. 24(a). Judge King has not alleged that a federal statute confers an unconditional right to intervene. Thus, to intervene by right, Judge King must satisfy 24(a)(2) by demonstrating: (1) he has an interest relating to the property or transaction which is the subject of the action, (2) that King’s ability to protect that interest may be impaired or impeded by the disposition of the action, and (3) that King is inadequately represented by the existing parties.
Attorney General Strange opposes King’s intervention asserting that the motion is untimely and that there is no case or controversy between King and the parties in this case. While final judgment has not been entered in this case, Strange is correct that the Plaintiffs have already achieved what they sought from a probate judge.1 All of the Plaintiff couples in this case reside in Mobile County and sought marriage licenses from Mobile County Probate Judge Don Davis. This court enjoined Judge Davis from refusing to issue marriage licenses to Plaintiffs due to the Alabama laws prohibiting same-sex marriage. None of the parties in this case have a claim against Judge King and there is no indication that they will have any claim against Judge King in the future. Thus, Judge King does not appear to have an interest in the subject matter of this action.
Judge King asserts that he faces imminent risk of being subjected to a state court order that will put him in the position of having to choose either to disregard
1 The court notes that even if plaintiffs have all obtained marriage licenses, they have not obtained complete and final relief. Plaintiffs seek more than an official piece of paper that says they are married. Plaintiffs want their marriages to be recognized as valid going forward so that they can receive the legal protections that arise from marriage.
3

the United States Constitution, which he is sworn to uphold, thereby subjecting him to liability, or to disregard a state court order. The state court action King is referring to is the Writ of Mandamus petition filed in the Supreme Court of Alabama which names all Alabama probate judges, including Judge King, as respondents. Ex parte State of Alabama v. Alan L. King, et al., Supreme Court Case No. 1140460. However, as stated by Judge King, his risk of conflict is between a potential state court ruling and the United States Constitution, not the preliminary injunctions entered in this case.
Additionally, there is already a party to this case that represents the same interests as Judge King. Defendant Judge Don Davis faces the same risk of being subjected to conflicting federal and state orders regarding the issuance of marriage licenses to same-sex couples.2 There is a “presumption of adequate representation where an existing party seeks the same objective as the interveners.” Stone v. First Union Corp, 371 F.3d 1305, 1311 (11th Cir. 2004). Judge Davis is in the same position as Judge King and is represented by counsel in this matter. Thus, the court finds that Judge King may not intervene by right.
2 Judge Davis, in his brief filed with the Alabama Supreme Court concerning the petition, takes the position that the petition does not apply to him (Doc. 65, Exhibit 4, pp. 2-3). The petition names as respondents four Probate Judges, and “Judge Does #1 – 63”, each of whom “is a Judge of Probate in Alabama who may issue, or may have issued, marriage licenses to same-sex couples in Alabama as a result of the Searcy or Strawser Injunction, in violation of the Marriage Amendment, the Marriage Act, and [Chief Justice Moore’s] Administrative Order.” (Doc. 60, Exhibit 1). As there are only 67 Probate Judges in Alabama, Judge Davis is certainly among the “Judge Does #1 -63”.
4

In the alternative to intervention by right, Judge King seeks permissive intervention. Permissive intervention is permitted upon timely motion to anyone who:
(A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. FED. R. CIV. P. 24(b)(1). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3). Again, Judge King does not suggest that any federal statute provides him a right to intervene. Thus, for permissive intervention Judge King must have a claim or defense with a common question of law or fact as the main action. The decision whether to allow permissive intervention is “wholly discretionary with the court.” Purcell v. BankAtlantic Financial Corp., 85 F.3d 1508, 1513 (11th Cir. 1996). The court agrees that Judge King’s circumstances present some common questions of law. However, since relief has already been granted to Plaintiffs against Judge Davis and none of the parties seek anything from Judge King, the court does not find King’s intervention is warranted. At this point in the litigation the addition of Judge King as a party will add nothing to the adjudication of the claims presented and may only serve to complicate the matter. Judge King’s participation in this case is neither necessary nor desired by the parties. No parties in this case have any claims against Judge King and Judge King has not suggested that he would assert any claims against any of the parties in this case. If allowed to
5

intervene, Judge King would move for a preliminary injunction to require Attorney General Strange to appear in the State Supreme Court Mandamus action and move to dismiss the petition. There is already a preliminary injunction entered against Attorney General Strange and Plaintiffs have also moved for the same relief sought by Judge King if he is allowed to intervene. Plaintiffs have moved to enforce the injunction previously entered against the Attorney General by seeking an order from this court requiring the Attorney General to appear in the Alabama Supreme Court Mandamus action and move for its dismissal. Thus, Judge King’s proposed parallel motion would serve little purpose. In addition, since none of the parties in this case seek to have Judge King issue a marriage license, it is unclear what other basis Judge King would have for preliminary injunctive relief. After considering all of the above, the court, in its discretion, declines to allow Judge King to intervene.
CONCLUSION The emergency verified motion of Jefferson County Probate Judge Alan King for leave to intervene as a party (Doc. 58), is DENIED and Judge King’s motion for preliminary injunction (Doc. 59), is STRICKEN. DONE and ORDERED this 20th day of February, 2015.
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER et al.,
Plaintiffs,
vs.
LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, DON DAVIS, in his official capacity as Probate Judge of Mobile County, Alabama,
Defendants.

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) ) ) )

ORDER

This matter is before the court on the emergency motion of Judge Don Davis

to stay this court’s February 12, 2015 preliminary injunction order (Doc. 71),

Plaintiffs’ opposition thereto (Doc. 83), Judge Davis’ supplement to his motion to

stay (Doc. 85), and Plaintiffs’ response in opposition to the supplement (Doc. 87).

For the reasons explained below, the court finds that the motion to stay should be

denied.

Judge Davis moves to stay because of the increased confusion that has

ensued since this court entered judgment in Searcy I1, finding that Alabama’s laws

prohibiting same-sex marriage were unconstitutional. Judge Davis notes that

previous motions to stay the judgment in Searcy I were denied by this court, the

1 Searcy v. Strange, Case No. 14-0208-CG-N, 2015 WL 328728 (S.D. Ala. Jan 23, 2015).

Eleventh Circuit Court of Appeals, and the United State Supreme Court. However, Davis contends that the facts have changed. Judge Davis states that he has been placed in a potential conflict between this court’s orders and the orders of the Alabama Supreme Court and its Chief Justice, Roy Moore. Judge Davis laments that he has continued to be at the center of a statewide confusion.
Although the court would agree that the developments in these same-sex marriage cases has at times seemed dizzying, the court finds that Judge Davis has not shown that a stay is warranted. “A stay is not a matter of right, even if irreparable injury might otherwise result” but, is instead “an exercise of judicial discretion,” Nken v. Holder, 556 U.S. 418, 433 (2009) (citations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-434. In considering whether to grant a stay, the court may consider the following four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). “There is substantial overlap between these and the factors governing preliminary injunctions, not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively
2

determined.” Id. (internal citation omitted). The first two factors are the most critical. Id.
In the instant case, Judge Davis has not argued, much less shown that he is likely to succeed on the merits. This court has found that Alabama’s marriage sanctity laws violate the Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This court’s conclusion agrees with the overwhelming consensus of courts across the country that have addressed the constitutionality of similar state laws since the Supreme Court’s ruling in United States v. Windsor, 133 S.Ct. 2675 (2013). Judge Davis has offered no reason why this court should now conclude that judgment in this case is likely to be in favor of Judge Davis.
Judge Davis has also failed to show how he will be irreparably injured absent a stay. Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him. The court notes that the decision entered in Ex parte State ex rel. Alabama Policy Institute, 2015 WL 892752, *26 (Ala. March 3, 2015), recognized that Judge Davis is a party to this litigation and that he remains bound by this court’s orders.
As to the remaining factors, this court previously found the following:
3

Plaintiffs’ inability to exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights “unquestionably constitutes irreparable harm.”). Moreover, the Plaintiffs in this case have submitted declarations attesting to the specific reasons why their inability to become legally married in Alabama presents a substantial threat of irreparable injury. Additionally, “it is always in the public interest to protect constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008).
(Doc. 55, pp. 6-7 (footnote omitted)). Judge Davis has not offered any reason why
this court should reassess its analysis of these factors.
Judge Davis points out that the Middle District of Alabama has recently
stayed a similar case. See Hard v. Bentley, Case No. 13-922-WKW (M.D. Ala. March
10, 2015). Judge Davis accuses the Plaintiffs in this case of forum shopping because
they have moved to amend their complaint to add additional plaintiffs and class
allegations. Judge Davis also argues that allowing the amendment will add to the
confusion and allow plaintiffs in the Middle District of Alabama to go around the
stay there and file their claims in this court. Plaintiffs respond that they sought
leave to amend and moved for class certification prior to the Middle District’s ruling
and had no prior notice that the Middle District was contemplating a stay of the
Hard case. Additionally, the order in the Middle District only applies to the specific
claims asserted by the parties in that case. The order does not preclude other
potential plaintiffs or counsel from initiating separate lawsuits in the Middle
District or anywhere else in Alabama. The stay entered in Hard has no bearing on
the instant case.
4

CONCLUSION For the reasons explained above, the motion of Judge Don Davis to stay this court’s February 12, 2015, preliminary injunction order (Doc. 71), is DENIED. DONE and ORDERED this 16th day of March, 2014.
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,
Plaintiffs,
vs.
LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, DON DAVIS, in his official capacity as Probate Judge of Mobile County, Alabama,
Defendants.

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) ) ) )

ORDER

This action is before the court on Plaintiffs’ motion for (1) leave to file second

amended complaint adding additional parties and plaintiff and defendant classes

(Doc. 76), Defendant Luther Strange’s response in opposition to the motion (Doc.

78), and Defendant Don Davis’ opposition to the motion (Doc. 90). For the reasons

explained below, the court finds that Plaintiffs’ motion for leave to amend should be

granted.

Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings

“shall be freely given when justice so requires.” See FED. R. CIV. P. 15(a). The

Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court's

discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir.

2005). “Unless a substantial reason exists to deny leave to amend, the discretion of

the District Court is not broad enough to permit denial.” Florida Evergreen Foliage

v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation omitted). That said, leave to amend can be properly denied under circumstances of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted).
Defendant Strange contends that this court should deny the motion for leave to amend and take no further action in this case because this lawsuit has been pending for many months as a suit between individual Plaintiffs and Defendants and those Plaintiffs have achieved that relief. Attorney General Strange argues that Plaintiffs cannot now convert this lawsuit into a class action between an illdefined class of plaintiffs and a class of 68 defendants, very few of which reside within the Southern District of Alabama. Strange contends that the court should wait until June when the United States Supreme Court will resolve the constitutionality of same-sex marriage. However, as this court recently ruled with regard to a motion by Judge Davis, the Defendants in this case have not shown that a stay is warranted. Defendant Strange has also failed to provide any authority showing why this court cannot or should not allow Plaintiffs to amend their complaint to add parties and assert class allegations. Although Defendant Strange objects to the amendment “at this late date,” this case has only progressed to the preliminary injunction stage and although the current Plaintiffs have apparently all
2

received marriage licenses the licenses are of little value if they are not recognized as valid in Alabama. Under the circumstances, allowing the amendment is not likely to significantly delay resolution of the case for the current parties. The requested amendment will not disturb any schedule set by the Court in this case.
Judge Davis asserts that the court should not allow the addition of the new Plaintiffs and further asserts that Plaintiffs have not met the requirements for class certification. Joinder of additional plaintiffs is permitted if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action. FED. R. CIV. P. 20(a)(1). Courts are encouraged to entertain “…the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, (1966). “Rule 20 permits ‘the joinder of a person who has some interest in an action ..., even when that interest is not so strong as to require his joinder’ under Rule 19.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (citing Field v. Volkswagenwerk AG, 626 F.2d 293, 299 (3d Cir. 1980)). In the instant case, the proposed new plaintiffs, like the current plaintiffs, are same-sex couples that seek to marry and have their marriages recognized. Their claims present the common legal question of whether Defendants’ enforcement of Alabama’s laws excluding same-sex couples from marriage and refusing to recognize their marriages violate the Fourteenth Amendment to the United States Constitution. As such, the court finds that joinder of the new Plaintiffs is appropriate.
3

As to Judge Davis’ argument that Plaintiffs have not met the requirements for class certification, the court finds that Plaintiffs have asserted sufficient allegations for the court to allow the amendment. To the extent Judge Davis’ objection to class certification is offered in opposition to Plaintiffs’ motion to amend, Davis’ argument is essentially that the amendment would be futile. An amendment is futile when a claim as proposed would be subject to dismissal. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.2004). To survive a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
It is well-settled that a plaintiff bears the burden of establishing all prerequisites under the Federal Rules of Civil Procedure before a class action is proper in the district court. Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984) (citations omitted). “Mere repetition of the language of Rule 23(a) is not sufficient. There must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled.” In re Am. Med. Sys. Inc., 75 F.3d 1069, 1079 (6th Cir.1996) (citation omitted). However, the Plaintiffs’ motion for class certification is not yet ripe. Under Plaintiffs’ motion to amend, the court need only consider whether Plaintiffs have sufficiently alleged class claims. Thus, although the court may dismiss class allegations “[w]here it is facially apparent from the pleadings that there is no ascertainable class,” John v. Nat'l Sec. Fire & Cas. Co.,
4

501 F.3d 443, 445 (5th Cir.2007), the court finds that the Plaintiffs in this case have alleged adequate facts to support a potential class claim and the court will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.1
There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second amended complaint (Doc. 76) is hereby GRANTED.
DONE and ORDERED this 18th day of March, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
1 Attorney General Strange has been given until Monday, March 23, 2015 to respond to Plaintiffs’ motion to certify class (Doc. 89).
5

 
 Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER et al.,
Plaintiffs,
vs. LUTHER STRANGE, et al,
Defendants.

) ) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) )

ORDER

This matter is before the Court on Plaintiffs’ motion for class certification

(Doc. 76), opposition filed by Defendants Luther Strange (Docs. 78, 99) and Judge

Don Davis (Doc. 90), and Plaintiffs’ reply (Doc. 100). For the reasons explained

below, the Court finds that Plaintiffs’ motion for class certification should be

granted.

DISCUSSION
Plaintiffs move for class certification of a Plaintiff Class and a Defendant
Class in this matter. The Plaintiff Class is defined as:
All persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages.

Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 2 of 18
The proposed Defendant Class is defined as: “All Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.”
Whether to certify a class is a matter within the discretion of the court. Moore v. Am. Fed'n of Television & Radio Artists, 216 F.3d 1236, 1241 (11th Cir.2000), cert. denied, 533 U.S. 950 (2001). “The initial burden of proof to establish the propriety of class certification rests with the advocate of the class.” Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000), cert. denied, 532 U.S. 919 (2001). Chief among the justifications for class certification is its efficiency: adjudication of a properly-constituted class action generally has res judicata effect and “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must satisfy all four of the threshold requirements set forth in Federal Rule of Civil Procedure 23(a) and then show that the action is maintainable under at least one of the three provisions of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th Cir. 2001) ( en banc ), cert. denied, 534 U.S. 820. The four threshold requirements are (1) numerosity: “the class is so numerous that joinder of all members is impractical;” (2) commonality: “there are questions of law or fact common to the class;” (3) typicality: the claims or defenses of
2

Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 3 of 18
the representative parties are typical of the claims or defenses of the class; and” (4) adequacy: “the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a); Turner, 242 F.3d at 1025 n. 3; Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). Rule 23(b) requires a party to show that either (1) prosecution by separate actions would create a risk of inconsistent results; or (2) defendants have acted in ways generally applicable to the class, making declaratory or injunctive relief appropriate; or (3) common questions of law or fact predominate over individual issues. Moore, 216 F.3d at 1241. A. Rule 23(a)
1. Numerosity For a class to meet the first requirement of Rule 23(a), it must be “so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). “[N]o bright-line test for determining numerosity” exists and the “determination rests on the Court’s practical judgment in light of the facts of the case.” Wright v. Circuit City Stores, Inc., 201 F.R.D. 526, 537 (N.D. Ala. 2001) (citations omitted). However, it has been held that “generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also LaBauve v. Olin Corp., 231 F.R.D. 632, 665 (S.D. Ala. 2005) (“Numerosity is generally presumed when a proposed class exceeds 40 members.” citations omitted). “[A] plaintiff need not show the precise number of members in the class.” Evans v.
3

Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 4 of 18
U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). “Estimates as to the size of the proposed class are sufficient for a class action to proceed.” Wright, 201 F.R.D. at 537 (citation omitted). “Furthermore, this Court may make common sense assumptions to support a finding of numerosity.” Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D. Ala. 1999) (citations and internal quotations omitted). “[W]here the numerosity question is a close one, a balance should be struck in favor of a finding of numerosity, since the court has the option to decertify pursuant to Rule 23(c)(1).” Evans, 696 F.2d at 930 (citations omitted).
To support their numerosity claim with regard to the proposed Plaintiff Class, Plaintiffs cite to census data from 2010 indicating that Alabama is home to approximately 6,582 same-sex couples. (Doc. 76-2). Hundreds of gays and lesbians married statewide in Alabama following entry of this Court’s previous orders and the experience of other states indicates that when they are allowed to do so, many same-sex couples will continue to marry well after their right to do so was first recognized. M.V. Lee Badgett & Christy Mallory, The Windsor Effect on Marriages by Same-Sex Couples, The Williams Institute, 1 (Dec. 2014), http:bit.ly/1Cx57w6 (reporting that despite the fact that same-sex marriage had been available in these states since at least 2010, in Connecticut there were 668 same-sex marriages in 2012 and 1355 same-sex marriages in 3013, in New Hampshire there were 389 same-sex marriages in 2012 and 566 same-sex marriages in 2013, and in Vermont there were 472 same-sex marriages in 2012 and 980 same-sex marriages in 2013).
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When presented with similar evidence the District Court for the Western District of
Virginia found that numerosity had plainly been met, explaining as follows:
Plaintiffs here ground their good faith estimate on the 2010 United States Census, which reported over 15,000 same-sex households in the Commonwealth. Br. in Supp. re Mot. to Certify Class, Dkt. No. 27, at 5. While defendants question the reliability of the census data cited by plaintiffs, there can be little doubt that the numerosity requirement is satisfied. Defendants' argument is akin to the one rejected by the Court in Thomas v. Louisiana–Pacific Corp., 246 F.R.D. 505 (D.S.C.2007). “Although Defendants contest numerosity, Defendants in substance simply argue Plaintiffs' estimate is incorrect. Even assuming the accuracy of Defendants' estimates, the numerosity requirement is satisfied[.]” Id. at 509. The same is true in this case. Even if the census data is off by an order of magnitude, the numerosity requirement is plainly met. See, e.g., Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 425 (4th Cir.2003) (noting with approval the district Court's observation that “1400 employees plus their families” “easily” satisfied Rule 23(a)(1)'s numerosity requirement).Recent experience in Utah makes this point clear. In an article posted on January 8, 2014, CNN reported that “[o]fficials say more than a thousand marriage licenses between gay and lesbian couples were issued in the 17 days between the initial ruling and the high court's Monday order blocking enforcement.” Bill Mears, Utah Will Not Recognize Same–Sex Marriages Performed Before High Court Stay, CNN Political Ticker (Jan. 8, 2014, 1:17 PM), http:// politica/ ticker. blogs. cnn. com/ 2014/ 01/ 08/ utah- will- not- recognize- same- sex- marriages- performedbefore- high- court- stay/. The 2010 census data, coupled with the actual experience in Utah, amply supports the conclusion that the number of same-sex couples in Virginia seeking to be married under the laws of the Commonwealth far exceeds any number which would be practical for joinder. Plaintiffs' good faith estimate meets the numerosity requirement.
Harris v. Rainey, 299 F.R.D. 486, 490 (W.D. Va. 2014). Although the estimated
number of same-sex households in Alabama is considerably less than in Virginia,
the number estimated in Alabama still far exceeds the amount needed to satisfy the
numerosity requirement. The Court is also aware of the considerable confusion that
followed this Court’s entry of orders finding that Alabama’s laws prohibiting the
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issuance of marriage licenses to same-sex couples and barring recognition of their marriages were unconstitutional. Although hundreds of same-sex couples were reportedly able to obtain marriage licenses, there were many more, like the new named Plaintiffs in this case, that were denied marriage licenses or did not attempt to apply for a license for fear of being turned away or because it was difficult to make firm wedding plans not knowing if they could obtain a marriage license. As reported above, the number of same-sex couples that sought marriage licenses well after the initial allowance of such marriages in Connecticut, New Hampshire and Vermont – states with smaller populations than Alabama, far exceeded any number that would be practical for joinder. Thus, even if there had been no confusion over the issuance of marriage licenses in Alabama, the experience of these other states indicates that the number of same-sex couples who would seek marriage licenses in the coming years if they were permitted to do so would far exceed the number that would be practical for joinder. Accordingly, this Court finds that the 2010 census data coupled with the actual experience in other states amply supports the conclusion that the number of same-sex couples in Alabama seeking to be married far exceeds any number which would be practical for joinder.
Defendants contend that the Plaintiff Class is too vague because it is based on subjective standards - whether a couple desires a marriage license. However, as Plaintiffs point out, probate judges would have no difficulty identifying those affected by the requested injunction since any same-sex couples who attempt to apply for a marriage license plainly qualify as members of the proposed class. In a
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similar case, the Western District of Virginia was presented with a similar objection to a proposed class and found that the potential plaintiffs’ application for a marriage license was observable and objective. Harris, 299 F.R.D. at 496 -497 (“Here, observable and objective actions determine whether couples fall within the class definition by virtue of their application for a marriage license or request for recognition of an out-of-state marriage.”). As in Harris, the proposed class definition here “will not require any individualized fact-finding, nor is it based on unknowable or unascertainable information. As such, it meets the requirement of ascertainability.” Id. at 497.
The fact that the class members “are not specifically identifiable supports rather than bars the bringing of a class action, because joinder is impracticable.” Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975); see also Meyer v. Citizens and Southern Nat. Bank, 106 F.R.D. 356, 360 (M.D. Ga. 1985) (“Difficulty in identifying class members makes joinder more impractical and certification more desirable.” citing Charleston Area Med. Ctr., Inc. supra and Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974)). Nor is it a problem that seeking to obtain a marriage license involves an element of choice. As Plaintiff correctly points out, courts have routinely certified classes defined by characteristics of choice. See e.g. Pederson v. Louisiana State University, 213 F.3d 858, 865 (5th Cir. 2000) (class consists of female students who seek to participate in varsity intercollegiate athletics); Carpenter v. Davis, 424 F.2d 257, 260 (5th Cir. 1970) (class includes all who wish or expect to write for, publish, sell or distribute
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Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 8 of 18
the newspaper in the future); Charleston Area Med. Ctr., Inc., 529 F.2d at 645 (class consists of persons seeking abortions).
As to the proposed Defendant Class, Plaintiffs seek to certify as defendants, all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages. There are 68 probate judges in Alabama, all of which have refused, or may in the future refuse, to issue marriage licenses to same-sex couples based on Alabama’s laws. As discussed above, “[n]umerosity is generally presumed when a proposed class exceeds 40 members.” LaBauve, 231 F.R.D. at 665. Although the members of the Defendant Class are readily identifiable, the Court finds that joinder of all of them is impractical. As stated previously, one of the primary reasons for certifying a class is its efficiency. Adjudication of this case as to all 68 probate judges “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Califano, 442 U.S. at 701. Plaintiffs identify many courts that have certified defendant classes of local or county-level official in cases that challenge a law executed at a local level. See e.g. Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) (defendant class of justices of the peace, sheriffs and state troopers); Monaco v. Stone, 187 F.R.D. 50 (E.D.N.Y. 1999) (local criminal court judges); Ragsdale v. Turnock, 734 F. Supp. 1457 (N.D. Ill. 1990) (all State Attorneys), aff’d, 941 F.2d 501 (7th Cir. 1991); Akron Ctr. for Reprod. Health v. Rosen, 110 F.R.D. 576 (N.D. Ohio 1986) (state prosecutors); Harris v.
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Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 9 of 18
Graddick, 593 F. Supp. 128 (M.D. Ala. 1984) (county officials responsible for appointing poll officials). Courts in Alabama have even certified the same defendant class requested in this case – all Alabama probate judges. See e.g. Hadnott v. Amos, 295 F.Supp. 1003, 1005 (M.D. Ala. 1968) rev'd on other grds., 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969) (certifying a class of defendants composed of the Judges of Probate of all counties in Alabama); Sims v. Frink, 208 F.Supp. 431 (M.D. Ala. 1962) aff'd, sub nom., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (same). The Court finds that while all 68 probate judges are known, it is impracticable to join them all and their inclusion in the class will serve the interests of judicial economy.
2. Commonality Commonality requires the presence of questions of law or fact common to the class. FED. R. CIV. P. 23(a)(2). Commonality requires “that there be at least one issue whose resolution will affect all or a significant number of the putative class members.” Bussey v. Macon County Greyhound Park, Inc., 562 Fed.Appx. 782, 788 (11th Cir. 2014) (citation and internal quotations omitted). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal– Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). In this case, only same-sex couples who seek a marriage license and to have that marriage recognized under Alabama law are included as members of the Plaintiff
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Class. Judge Davis contends that commonality is not met because some of the named plaintiffs have already obtained partial relief in that they were issued marriage licenses in Alabama. Judge Davis’s argument seems to be more a question of standing, which this Court has previously addressed. Commonality does not require that the class have all the same issues in common. “The claims actually litigated in the suit must simply be those fairly represented by the named plaintiffs.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986). The validity of the marriage licenses that have been issued to same-sex couples in Alabama is still at issue. If probate judges view Plaintiffs’ marriage documents as invalid or void, probate Court records could reflect that the Plaintiffs who have received marriage licenses are not validly married. Additionally, if probate judges refuse to recognize same-sex marriages the plaintiffs’ rights will be affected when petitioning for adoption or when their estates are being probated. Plaintiffs’ claims are based on the same legal theories as those of the absent class members. Whatever factual nuances may exist among putative class members, the legal relief sought is the same: a declaratory judgment striking down Alabama’s laws banning same-sex marriage and an injunction barring their enforcement. Such relief rests on identical questions of law and would clearly resolve the claims class-wide and in one stroke.
Similarly, there are common questions of law that would be resolved as to all of the members of the proposed Defendant Class. The proposed Defendant Class consists of 68 probate judges who are enforcing Alabama’s laws barring same-sex
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couples from marrying. The question common to the entire Defendant Class is whether their enforcement of Alabama’s laws barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The resolution of this question will resolve the claims against all of members of the class in one stroke. Thus, the Court finds that the Defendant Class meets the commonality requirement of Rule 23(a).
3. Typicality Typicality requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). Although the issues of commonality and typicality are separate, the proof required for each tends to merge. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir.1996) (citation omitted). “Traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (citation omitted). “The claim of a class representative is typical if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009). In the instant case, Plaintiffs ask this Court to appoint Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Holloway Pigg III, Gary Wayne Wright II and Brandon Mabrey as class representatives. The proposed class representatives seek to marry and have their marriages recognized, but have been refused a marriage license
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because they are of the same sex. Their inability to be married and have their marriages recognized because they are of the same sex is shared by all members of the proposed Plaintiff Class and arises from the same event or pattern or practice of events. Similarly, the Defendant class representatives have typical defenses to those claims. The Defendants all operate under the same statutory framework and have the same ministerial duties. Their defenses arise from the same course of events and each class member may make the same legal arguments to defend against the Plaintiffs’ allegations. Because the injuries, claims and defenses of the named Plaintiffs and Defendants in this case are typical of the injuries, claims of the entire proposed classes, the typicality requirement of Rule 23(a) is met.
4. Adequacy Adequacy of representation requires that “the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). The adequacy of representation requirement encompasses two inquiries: “(1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.2003) (citation omitted). Defendants do not seriously challenge the assertion that the named Plaintiffs and their counsel will vigorously prosecute this action. Additionally, because the Court has determined that the named Plaintiffs and the putative class share commonality and typicality, it follows, that “the named plaintiff[s'] claim[s] and the class claims are so interrelated that the interests of the class members will
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be fairly and adequately protected in their absence.” Dukes, 131 S.Ct. at 2551 n. 5 (noting that commonality and typicality determinations tend to merge with the adequacy-or-representation requirement); see also Amchem Prods., Inc., 521 U.S. at 620 (“The adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” citations omitted). The Court finds that Plaintiffs have no substantial conflict of interest with the class and that Plaintiffs will adequately prosecute this action on behalf of the Plaintiff Class.
As to the Defendant Class adequacy of representation, Defendant Davis asserts that he cannot be an effective class representative because there is no unified position of the 68 probate judges on the constitutionality of denying marriage licenses to same-sex couples and because he has never made public statements or taken a public stance on the matter. However, the issuance of marriage licenses is a purely ministerial act. See Ex parte State ex rel. Alabama Policy Institute, 2015 WL 892752, * 4, 8 (Ala., March 3, 2015) (discussing and referring to the probate judges’ “ministerial act of licensing marriages”). None of the Defendant Class members are charged with discretion or judgment in carrying out this ministerial duty. Whatever their personal positions are on the constitutionality of Alabama’s marriage laws, it is their common obligation to carry
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out their ministerial duties that give rise to a common defense. See Sherman ex rel. Sherman v. Township High School Dist., 540 F.Supp.2d 985, 992 (N.D. Ill. 2008) (“Whatever the position of any individual school district on the constitutionality of the Act, the common obligation to implement it gives rise to a common defense.”); see also National Broadcasting Co., Inc. v. Cleland, 697 F.Supp. 1204, 1217 (N.D. Ga. 1988) (“Because the Fulton County Board has the same duties and responsibilities as all other county Superintendents of Elections, the Fulton County Board, as class representative, can fairly and adequately protect the interests of the defendant class of Superintendents.”). “Rule 23(a)(4) does not require a willing representative, [but] merely an adequate one.” Cleland, 697 F.Supp at 1217. Additionally, “any perceived weaknesses in [Judge Davis’s] status as class representative stemming from [his] professed neutrality” “are offset by the inclusion of [Attorney General Strange] as a named defendant” who is defending the statutes constitutionality. Sherman, 540 F.Supp.2d at 992; see also Redhail v. Zablocki, 418 F.Supp. 1061, 1066 (D.C. Wis. 1976) (“Not only is defendant Zablocki's interest identical to that of the other county clerks, but the attorney representing him is from the Milwaukee County Corporation Counsel's office which is experienced in conducting federal litigation. Furthermore, the Attorney General of Wisconsin has taken an active part in this action, urging that the challenged statute be upheld.”). In light of the foregoing reasons, the Court finds that each of the four Rule 23(a) requirements is satisfied for both the proposed Plaintiff and Defendant Classes.
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B. Rule 23(b) In addition to meeting the requirements of Rule 23(a), a class must also
qualify under one of the three “types” of classes set forth in Rule 23(b). Plaintiffs contend certification under both 23(b)(1)(A) and 23(b)(2) are proper.
Federal Rule of Civil Procedure 23(b)(1)(A) provides for class adjudication where there is a risk that inconsistent or varying judgments in separate lawsuits “would establish incompatible standards of conduct for the party opposing the class.” FED. R. CIV. P. 23(b)(1)(A). Because the risk that judicial action will create incompatible standards of conduct is low when a party seeks compensatory damages, only actions seeking declaratory or injunctive relief can be certified under Rule 23(b)(1)(A). In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1545 (11th Cir.1987). In the instant case, Plaintiffs do not seek compensatory damages and it is clear that the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications. Defendants’ only real argument against certification under 23(b)(1)(a) is that the issues will only really be resolved when the United States Supreme Court has the final say on these inconsistencies. This Court has already considered Defendants’ requests to stay this case pending the Supreme Court’s ruling and has denied said requests. A class-wide ruling by this Court would definitively determine the issues as to all of the Plaintiffs’ claims against all 68 probate judges in Alabama. This Court is aware that the Supreme Court of the United States will ultimately have the final say on these issues, but until that time
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this Court must consider the claims and rights of the parties before this Court. The Court finds certification is proper under Rule 23(b)(1)(A).
The Court also finds that certification is proper under Rule 23(b)(2). Rule 23(b)(2) applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). “The ‘generally applicable’ language signifies ‘that the party opposing the class does not have to act directly against each member of the class.’ ” Harris, 299 F.R.D. at 494 (quoting WRIGHT & MILLER § 1775). “Instead, ‘[t]he key is whether the party's actions would affect all persons similarly situated so that those acts apply generally to the whole class.’ ” Id. (citations omitted). For class certification under 23(b)(2), “[t]wo basic requirements must be met: (1) the class members must have been harmed in essentially the same way by the defendant's acts; and (2) the common injury may properly be addressed by classwide injunctive or equitable remedies. Williams v. Nat. Sec. Ins. Co., 237 F.R.D. 685, 693 (M.D. Ala. 2006) (citing Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir.1983)). Defendants' alleged conduct is directed against a specific class of people, same-sex couples, and is uniform in its application. All Plaintiff Class members have been harmed by being denied the ability of obtaining a marriage license and their injury can be properly addressed by class-wide injunctive relief. Thus, this case falls squarely within the ambit of Rule 23(b)(2).
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CONCLUSION For the reasons explained above: 1. Plaintiffs’ motion to certify a Plaintiff Class consisting of all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages is GRANTED. 2. The Court APPOINTS Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Holloway Pigg III, Gary Wayne Wright II and Brandon Mabrey as Lead Plaintiffs and Plaintiff Class representatives. 3. The Court APPOINTS the National Center for Lesbian Rights, Americans United for Separation of Church and State, the Southern Poverty Law Center, and ACLU Foundation of Alabama as Co-Lead Counsel for Lead Plaintiffs and the Plaintiff Class. 4. Plaintiffs’ motion to certify a Defendant Class consisting of all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages is GRANTED. 5. The Court APPOINTS Judge Don Davis and Judge Tim Russell as Lead Defendants and Defendant Class representatives.
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Case 1:14-cv-00424-CG-C Document 122 Filed 05/21/15 Page 18 of 18 6. The Court APPOINTS Lee L. Hale, Satterwhite, Druhan, Gaillard & Tyler, LLC, and Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C. as CoLead Counsel for Lead Defendants and the Defendant Class. DONE and ORDERED this 21st day of May, 2015
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
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 Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,

)

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for

)

the State of Alabama, et al.,

)

)

)

Defendants.

ORDER

This matter is before the court on Plaintiffs’ motion for preliminary

injunction (Doc. 76), opposition thereto filed by Attorney General Strange (Doc. 78,

99) and Judge Don Davis (Doc. 90), and Plaintiffs’ reply (Doc 100). For the reasons

explained below, the Court finds that Plaintiffs’ motion for preliminary injunction

should be granted, but stayed pending the ruling of the U.S. Supreme Court in

Obergefell v. Hodges and related cases.

The decision to grant or deny a preliminary injunction “is within the sound

discretion of the district court...” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.

2002). This court may grant a preliminary injunction only if the plaintiff

demonstrates each of the following prerequisites: (1) a substantial likelihood of

success on the merits; (2) a substantial threat irreparable injury will occur absent

issuance of the injunction; (3) the threatened injury outweighs the potential damage

the required injunction may cause the non-moving parties; and (4) the injunction

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 2 of 14
would not be adverse to the public interest. Id., 287 F.3d at 1329; see also McDonald’s Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). “In this Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the “burden of persuasion” as to the four requisites.” McDonald’s Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a preliminary injunction is issued only when “drastic relief” is necessary.)
The claims in this case are brought by persons in Alabama who wish to marry a person of the same-sex and to have that marriage recognized under Alabama law. This court previously issued preliminary injunctions in this case prohibiting the Alabama Attorney General, Probate Judge Don Davis, and their “officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage” from enforcing the Alabama laws which prohibit same-sex marriage. (Docs. 29, 55). The first preliminary injunction against Attorney General Luther Strange, was initially stayed, but went into effect on Monday, February 9, 2015, after the Eleventh Circuit Court of Appeals and the Supreme Court of the United States denied Attorney General Strange’s request to extend the stay. (Doc. 40, Exh. 1; Doc. 43, p. 2). This Court also denied subsequent requests by Defendants to stay. (Doc. 88). The Court allowed Plaintiffs to amend their complaint to add both named parties and class claims (Doc. 92), and has today certified both a Plaintiff Class and a Defendant Class. Plaintiffs now seek a third
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preliminary injunction that would apply to the new named parties and both Plaintiff and Defendant Classes.
The named Plaintiffs report that they are all over the age of 19 and want to get married and feel demeaned and humiliated by Alabama’s refusal to treat them on a basis equal to that of opposite sex couples. (Doc.76-3, ¶¶ 1, 3; Doc. 76-4, ¶¶ 1, 3; Doc. 76-5, ¶¶ 1, 5). Plaintiffs Kristie Ogle and Jennifer Ogle have been in a committed, loving relationship for 22 years and have a child who was born in 2002 in Alabama. (Doc. 76-3, ¶ 2). Kristie and Jennifer Ogle want to provide their son and their family with the stability and legal protections that marriage provides. (Doc. 76-3, ¶ e). They experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 76-3, ¶ 3). Kristie and Jennifer Ogle went to Mobile County Probate Court to obtain a marriage license on March 4, 2015, but the Probate Office was not issuing licenses and they were unable to obtain one. (Doc. 76-3, ¶ 4). On March 5, 2015 Kristie Ogle called the Baldwin County Probate Judge’s office and was told that while they are issuing marriage licenses to opposite-sex couples, they are not issuing licenses to same-sex couples. (Doc. 76-3, ¶ 4).
Plaintiffs Keith Ingram and Albert Holloway Pigg III have been in a committed, loving relationship for approximately one year. (Doc. 76-4, ¶ 2). Ingram and Pigg want to marry to make their family legal and to declare their commitment for each other before their loved ones and their community. (Doc. 76-4, ¶ 3). Each day that they are not permitted to be married, they experience uncertainty about
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whether they will be treated as family members in the event of an emergency. (Doc. 76-4, ¶ 3). They are particularly anxious because Ingram has seen many doctors over the past several months for an undiagnosed illness. (Doc. 76-4, ¶ 3). Ingram and Pigg drove to the probate office in Houston County on February 9, 2015 to obtain a marriage license, but were told by the clerk that the probate judge, Judge Patrick Davenport, would not issue them a marriage license. (Doc. 76-4, ¶ 4). They drove to the Houston County Probate Office again on February 17, 2015 and were again informed that Judge Davenport would not issue them a marriage license. (Doc. 76-4, ¶ 5). On March 5, 2015, Ingram called the office of Baldwin County Probate Judge Tim Russell and asked if they could get a marriage license, but was informed that Judge Russell’s office was only issuing marriage licenses to “traditional” different-sex couples. (Doc. 76-4, ¶ 6).
Plaintiffs Gary Wayne Wright II and Brandon Mabrey have lived together in Alabama for six years and have been in a committed, loving relationship for eighteen years. (Doc. 76-5, ¶¶ 1, 2). Wright was honorably discharged from the U.S. Navy in 1991 after 17 years of service for being gay. (Doc. 76-5, ¶ 3). Wright has a muscular disorder that leaves him dependent on a wheelchair. (Doc. 76-5, ¶ 4). Wright receives less veteran’s benefits and coverage than he would if he were married. (Doc. 76-5, ¶ 4). Wright and Mabrey want to get married to make their family legal and to declare their commitment to each other before their loved ones and community. (Doc. 76-5, ¶ 5). Each day that they are not permitted to marry, they experience uncertainty about whether they will be treated as family members
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in the event of an emergency and they want to receive the legal protections and responsibilities that marriage provides. (Doc. 76-5, ¶ 5). On February 12, 2015, Mabrey called the Marshall County Probate Office, but was told that the office was not issuing marriage licenses to anyone. (Doc. 76-5, ¶ 6). Wright sent an email to Marshal County Probate Judge, Tim Mitchell, on February 18, 2015, requesting that his office issue marriage licenses to same-sex couples, but received no response. (Doc. 76-5, ¶ 7). On March 2, 2015, Wright went to the Marshall County Probate Office to obtain a marriage license and the clerk told him that the probate judge would not issue marriage licenses to anyone. (Doc. 76-5, ¶ 8). On March 5, 2015, they called the Baldwin County Probate Office to ask if they could obtain a marriage license, but were told that the Baldwin County Probate Office was issuing licenses only to “traditional” different-sex couples. (Doc. 76-5, ¶ 9).
Plaintiffs contend that Alabama’s laws prohibiting same-sex marriage1 violate their rights under the United States Constitution to Due Process and Equal
1 The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment. (b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state. (c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is
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Protection. This Court determined, in another case, Searcy v. Strange, 2015 WL
present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract. (d) No marriage license shall be issued in the State of Alabama to parties of the same sex. (e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. (f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex. (g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage. ALA. CONST. ART. I, § 36.03 (2006).
The Alabama Marriage Protection Act provides:
(a) This section shall be known and may be cited as the “Alabama Marriage
Protection Act.”
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract. (d) No marriage license shall be issued in the State of Alabama to parties of the same sex. (e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. ALA. CODE § 30-1-19.
6

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 7 of 14
328728 (S.D. Ala. Jan. 23, 2015), that Alabama’s marriage laws prohibiting and refusing to recognize same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Searcy, this Court found that those laws restrict the Plaintiffs’ fundamental marriage right and do not serve a compelling state interest. Although the Plaintiffs in this case seek to marry in Alabama, rather than have their marriage in another state recognized in Alabama, the Court, as it previously did in issuing the preliminary injunctions against Attorney General Strange and Judge Don Davis, adopts the reasoning expressed in the Searcy case and finds that Alabama’s laws violate the Plaintiffs’ rights for the same reasons. Alabama’s marriage sanctity laws violate Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by prohibiting same-sex marriage. Because this Court has continued to find that said laws are unconstitutional, the Court also finds that the new named Plaintiffs and the Plaintiff Class are likely to succeed on the merits of their claims.
Although Davis contends that he is entitled to qualified immunity and Eleventh Amendment Immunity, such immunities do not shield Davis from official capacity suits seeking declaratory and injunctive relief.2 Accordingly, Davis’s
2 Plaintiffs deny that Judge Davis is entitled to qualified immunity. Regardless, even if Judge Davis is entitled to qualified immunity, qualified immunity does not bar declaratory or injunctive relief. D'Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir. 1995) (citing Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993)). Eleventh Amendment Immunity also does not protect Judge Davis from claims for “prospective injunctive relief in order to end a continuing violation of federal law.” Tindol v. Alabama Dept. of Revenue, 2015 WL 350623, *10 (M.D. Ala. Jan. 23, 2015)
7

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 8 of 14
immunity claims do not alter this courts conclusion that the Plaintiffs are likely to succeed on the merits of their claims.
After considering the circumstances of this case and in light of the finding that the laws in question are unconstitutional, the Court finds that Plaintiffs have met the preliminary injunction factors. Entry of an additional preliminary injunction order against the new Defendant and Defendant Class is warranted for the same reasons that the Court granted the previous preliminary injunctions. The named Plaintiffs are likely to prevail and their inability to exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights “unquestionably constitutes irreparable harm.”). Because the issuance of marriage licenses is a purely ministerial act, Judge Davis, Judge Russell and the members of the Defendant Class have only a ministerial interest in issuing marriage licenses and would suffer little if any actual harm from the injunction. Additionally, “it is always in the public interest to protect constitutional rights.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). The Court finds that Defendants have not
(quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996)); see also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that the Eleventh Amendment does not bar prospective injunctive relief against a state officer (as distinct from the State itself) on the theory that a state official engaged in unconstitutional actions is stripped of his official representative capacity.); Welch v. Estes, 2014 WL 7369424, *3 (N.D. Ala. Dec. 29, 2014) (“Although Eleventh Amendment immunity protects state officials from suits for money damages, actions against a state official for prospective injunctive relief are outside the protection offered by the Eleventh Amendment.” citations omitted).
8

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 9 of 14
shown why these conclusions should not apply to all of the named parties as well as the Plaintiff and Defendant Classes. The named Plaintiffs’ claims are representative of the claims of the entire Plaintiff Class and the newly added Defendant and Defendant Class have the same defenses as Judge Davis.
Defendant Strange urges this Court to avoid unnecessary conflict. Strange concedes that this case may not fit squarely within the Rooker-Feldman doctrine because the plaintiffs are not parties to the state court proceedings, but argues that this Court, in its discretion, could abstain to avoid tension between state and federal courts. However, as Strange notes, Plaintiffs were not party to the statecourt mandamus proceeding. As such, Plaintiffs are not bound by the conclusions of the Alabama Supreme Court. A mandamus proceeding in a state court against state officials to enforce a challenged statute does not bar injunctive relief in a United States district court. Hale v. Bimco Trading, 306 U.S. 375, 377-378, 59 S.Ct. 526, 527 (1939). Actions attacking the constitutionality of such statutes can be brought by parties who are strangers to the state court action. Id. The Hale Court held that strangers to a state court proceeding are not barred by the Anti-Injunction Statute, which was a precursor of the Anti-Injunction Act, from challenging the constitutionality of a statute in federal court when the statute is also under litigation in the state courts. Courts since then have agreed. See e.g. Chezem v. Beverly Enterprises-Texas, Inc., 66 F.3d 741, 742 (5th Cir. 1995) (“As the Supreme Court has taught, the Anti–Injunction Act has no application herein because Carriage House and its residents were neither parties nor privies of parties to the
9

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 10 of 14
state court action.”); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1020 (7th Cir. 1990) (“Only a party, or, what amounts to the same thing in contemplation of the law, one who is in privity with a party, is barred by the Anti–Injunction Act.” Citations omitted); Munoz v. Imperial County, 667 F.2d 811 (9th Cir. 1982) (holding that federal plaintiffs were strangers to state-court proceedings and affirming entry of injunction against county officials). Defendants have not shown that any abstention doctrine applies to this case. Moreover, this court’s finding that Alabama’s marriage sanctity laws were unconstitutional predates the state court mandamus action.
Davis also argues that an additional preliminary injunction would be in direct contradiction to the order issued by the Alabama Supreme Court in Ex parte State, 2015 WL 892752 (Ala. March 3, 2015). It is true that if this Court grants the preliminary injunction the probate judges will be faced with complying with either Alabama’s marriage laws that prohibit same-sex marriage as they have been directed by the Alabama Supreme Court or with complying with the United States Constitution as directed by this Court.3 However, the choice should be simple. Under the Supremacy Clause, the laws of the United States are “the supreme Law of the Land.” U.S. CONST. art. VI, cl. 2. As the Supreme Court very recently explained:
It is apparent that this Clause creates a rule of decision: Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws
3 Probate Judges also have a third choice: they could choose to issue no marriage licenses and comply with both orders, as Judge Davis has reportedly done.
10

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 11 of 14
that conflict with federal laws. Gibbons v. Ogden, 9 Wheat. 1, 210 (1824).
* * * * For once a case or controversy properly comes before a court, judges are bound by federal law. Thus, a court may not convict a criminal defendant of violating a state law that federal law prohibits. See, e.g., Pennsylvania v. Nelson, 350 U. S. 497, 499, 509 (1956). Similarly, a court may not hold a civil defendant liable under state law for conduct federal law requires. See e.g., Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. ___, ___–___ (2013) (slip op., at 13– 14). And, as we have long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted. Ex parte Young, 209 U. S. 123, 155–156 (1908).
* * * * It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. See, e.g., Osborn v. Bank of United States, 9 Wheat. 738, 838–839, 844 (1824); Ex parte Young, supra, at 150–151 (citing Davis v. Gray, 16 Wall. 203, 220 (1873)).
* * * * What our cases demonstrate is that, “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.” Carroll v. Safford, 3 How. 441, 463 (1845).
The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. See Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L. Q. Rev. 345 (1956).
Armstrong v. Exceptional Child Center, Inc., --- S.Ct. ----, 2015 WL 1419423 at *3,
5-6 (March 31, 2015). Judge Davis and the other probate judges cannot be held
liable for violating Alabama state law when their conduct was required by the
United States Constitution.
Defendant Strange argues that the members of the Defendant Class should
be provided notice and an opportunity to respond before the Court considers issuing
11

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 12 of 14
a preliminary injunction against them. However, when monetary damages are not sought, notice is discretionary to classes certified under Rule 23(b)(1) or (b)(2), like the classes in this case. See FED. R. CIV. P. 23(c)(2)(A); Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 993 (11th Cir. 1981). Courts in this District and others have previously issued a preliminary injunction concurrently with certifying a class or even prior to fully certifying a class. See e.g. Harris v. Graddick, 593 F.Supp. 128 (M.D. Ala. 1984) (certifying a plaintiff and defendant class concurrently with issuing a preliminary injunction); Kaiser v. County of Sacramento, 780 F.Supp. 1309, 1312 (E.D. Cal. 1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants class certification arguments); Thomas v. Johnston, 557 F.Supp 879, 916 n. 29 (W.D. Tex. 1983) (“It appears to be settled … that a district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.”). Here, Plaintiffs are not seeking monetary damages and the court has given Attorney General Strange and Judge Davis ample opportunity to address the preliminary injunction issues. The Court finds that no further briefing or evidentiary materials are necessary. Plaintiffs have clearly met their burden for issuance of a class-wide preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.
Accordingly, the Court makes the following declaration:
12

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 13 of 14
It is ORDERED and DECLARED that ALA. CONST. art. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Plaintiffs’ motion for preliminary injunction (Doc 76) is GRANTED and Judge Don Davis, Judge Tim Russell and the members of the Defendant Class are hereby ENJOINED from enforcing the Alabama laws which prohibit or fail to recognize same-sex marriage. If the named Plaintiffs or any members of the Plaintiff Class take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Don Davis, Judge Tim Russell and the members of the Defendant Class may not deny them a license on the ground that they are same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order, including any injunction issued by the Alabama Supreme Court pertaining to same-sex marriage. This injunction binds all the officers, agents, servants and employees, and others in active concert or participation with Judge Don Davis, Judge Tim Russell or any of the members of the Defendant Class who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.
Plaintiffs are ORDERED to provide notice of this order and the order granting class certification to each member of the Defendant Class by mailing
13

Case 1:14-cv-00424-CG-C Document 123 Filed 05/21/15 Page 14 of 14
copies of both orders by certified mail to each class member at his or her office. 4 The notices should be mailed on or before May 26, 2015.
It is FURTHER ORDERED that because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases5, the above preliminary injunction is STAYED until the Supreme Court issues its ruling.
DONE and ORDERED this 21st day of May, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
4 While the court is confident that all of the probate judges will be notified almost immediately of this order through the news media and other avenues, the Court finds formal notice to be prudent. Notice does not need to be mailed to Judge Davis or Judge Russell as they will receive electronic notice of these orders. 5 These cases were argued on April 28, 2015, and a decision is expected by the end of this term.
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 Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 1 of 4

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 2 of 4

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 3 of 4

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 4 of 4

Amy C. Nerenberg Acting Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
October 20, 2015

Charles R. Diard Jr. U.S. District Court 113 SAINT JOSEPH ST STE 123 MOBILE, AL 36602

Appeal Number: 15-12508-CC Case Style: James Strawser, et al v. Tim Russell District Court Docket No: 1:14-cv-00424-CG-C

For rules and forms visit www.ca11.uscourts.gov

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Sincerely,
AMY C. NERENBERG, Acting Clerk of Court
Reply to: Joe Caruso Phone #: (404) 335-6177
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,
Plaintiffs, vs. LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, et al.,
Defendants

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) )

ORDER

This matter is before the court on the motion of Judge Don Davis to withdraw

as Class Representative and for his counsel to withdraw as Class Counsel (Doc.

130), Plaintiffs’ opposition thereto (Doc. 135), Judge Davis’ amended motion (Doc.

147), Plaintiffs’ opposition to the amended motion (Doc. 149), Plaintiffs’ motion for

permanent injunction and final judgment (Doc. 142), opposition to Plaintiffs’ motion

filed by Attorney General Luther Strange (Doc. 150), Judge Tim Russell (Doc. 151),

and Judge Davis (Doc. 152), Plaintiffs’ reply (Doc. 159), the motion of Attorney

General Strange to dismiss (Doc. 166), Plaintiffs’ opposition to dismissal (Doc. 167),

Attorney General Strange’s reply (Doc. 170), and supplemental authority filed by

Plaintiffs (Docs. 162, 171, 173, 174, 175). For the reasons explained below, the

Court finds that the motion of Judge Davis to withdraw and the motion of Attorney

General Strange to dismiss should be denied and that Plaintiffs’ motion for

permanent injunction and final judgment should be granted. I. Motion to Withdraw as Class Representative and as Class Counsel
Defendant Davis asks to withdraw because he does not want to continue to represent the class or pay expenses associated with litigating this case. However, as this Court has previously stated, “Rule 23(a)(4) does not require a willing representative, [but] merely an adequate one.” (Doc. 122, p. 14 (quoting National Broadcasting Co., Inc. v. Cleland, 697 F.Supp. 1204, 1217 (N.D. Ga. 1988)). “In contrast with representatives of plaintiff classes, named defendants almost never choose their role as class champion [as] it is a potentially onerous one thrust upon them by their opponents.” Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S. Ct. 2833, 61 L. Ed. 2d 281 (1979). “But courts must not readily accede to the wishes of named defendants in this area, for to permit them to abdicate so easily would utterly vitiate the effectiveness of the defendant class action as an instrument for correcting widespread illegality.” Id. This Court previously found that Judge Davis is adequate to represent the Defendant Class. After reviewing Judge Davis’ motion and amended motion, the Court finds that Judge Davis has not provided any justification to reconsider that decision. The Court also finds no justification for permitting counsel to withdraw as Defendants’ Class Counsel.
II. Motion to Dismiss as Moot Attorney General Strange moves to dismiss this case as moot because a permanent injunction barring the enforcement of Alabama’s marriage laws have
2

already issued and the Attorney General continues to remain in full compliance with it. The Attorney General acknowledges that the Supreme Court’s decision in Obergefell v. Hodges 135 S.Ct. 2584(2015) is the law of the land. He contends that nothing more remains to be done in this case and that there is no longer a live case or controversy between the Attorney General and the Plaintiffs. Defendants Russell and Davis also argue that the case is moot in their opposition to Plaintiffs’ motion for permanent injunction. Russell contends that he has been issuing marriage licenses to same-sex couples on the same priority and in the same manner as those licenses are issued to couples of the opposite sex. Davis also argues that Alabama probate judges have complied with the reasoning of the Obergefell ruling.
Plaintiffs conversely argue that none of the Defendants’ assurances provide Plaintiffs or the members of the Plaintiff Class with a formal, enforceable order should the Attorney General (or a future Attorney General) or other Defendants violate this Court’s injunction or fail to fully recognize marriages validly entered into in Alabama or elsewhere. Current or future state and county officials may disagree about Obergefell’s applicability to the challenged Alabama laws or otherwise resist the decision. This Court agrees that the need for a permanent injunction is clear. As the Northern District of Florida recently explained “a government ordinarily cannot establish mootness just by promising to sin no more.” Brenner v. Scott, Case No. 14-cv-107-RH/CAS, Order granting summary judgment (N.D. Fla. March 30, 2016). “A ‘defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.’ ” Id. (quoting Friends of
3

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000)). “A case
becomes moot only ‘if subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’ ” Id. (quoting Laidlaw
supra). “The formidable, heavy burden of persuading the court that the challenged
conduct cannot reasonably be expected to start up again lies with the party
asserting mootness.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184
(11th Cir. 2007) (quoting Laidlaw supra). Here the Attorney General and other
Defendants have not satisfied this burden.
To demonstrate that the case is moot, Defendants must show that both of the
following conditions are satisfied:
(1) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (citations and internal
quotations omitted). Courts consider at least three factors in determining whether
a defendant has unambiguously terminated the challenged conduct:
First, courts consider the timing and content of the decision to terminate the conduct. Rich [v. Fla. Dep’t of Corr., 716 F.3d 525, 532 (11th Cir. 2013)]. Second, courts consider whether the change in conduct was the result of substantial deliberation or was instead an attempt to manipulate the court’s jurisdiction. Id. And third, courts consider whether the new policy has been consistently applied. Id. If the defendant establishes unambiguous termination, the controversy is moot, “in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated.” Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1285 (11th Cir. 2004). Brenner v. Scott, Case No. 14-cv-107-RH/CAS, Order granting summary judgment
(N.D. Fla. March 30, 2016). Given the actions by Alabama state and local officials
4

during this litigation, both before and after the Supreme Court decided Obergefell, it cannot be said with assurance that there is no reasonable expectation that Alabama’s unconstitutional marriage laws will not again be enforced. Although the Attorney General professes that he will continue to abide by the decision in Obergefell, like the defendant in Brenner v. Scott, “[t]here has been nothing voluntary about the defendants’ change of tack.” The Defendants defended this case with vigor from the outset and the challenged statutes remain on the books.
Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, No. 14-cv-208-CG-N, the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court’s ruling in Searcy as binding precedent, as demonstrated by the writ of mandamus issued by the Alabama Supreme Court on March 3, 2015, requiring probate judges to discontinue the issuance of marriage licenses to same-sex couples. Ex parte State ex rel. Alabama Policy Inst., 2015 WL 892752, at *43 (Ala. Mar. 3, 2015).
The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute on March 4, 2016. However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate judges to comply with the Alabama laws that were held unconstitutional by this Court. Chief Justice Moore specifically stated in his concurrence that the certificate
5

of judgment and the dismissal of the petitions “does not disturb the existing March orders in this case or the Court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.” Ex parte State ex rel. Alabama Policy Inst., 2016 WL 859009, at *5, *39 (Ala. Mar. 4, 2016). Chief Justice Moore went further to state that “[t]he Obergefell opinion, being manifestly absurd and unjust and contrary to reason and divine law, is not entitled to precedential value.” Id. at *28. Chief Justice Moore also stated that the Eleventh Circuit’s finding that the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell “is plainly wrong.” Id. at *34.
This Court is aware that Chief Justice Moore is currently suspended from his position and is facing charges before the Alabama Court of the Judiciary. However, even if Chief Justice Moore is not reinstated to his position as Chief Justice, the concurring opinions of several other Alabama Supreme Court Justices also expressed disagreement with Obergefell. Justice Bolin and Justice Parker also stated that the Order dismissing the mandamus petitions was not a “decision on the merits,” indicating that the mandamus order finding Alabama’s marriage statutes constitutional was still in effect. Id. at *40, *47. The failure of the Alabama Supreme Court to set aside its earlier mandamus order and its willingness to uphold that order in the face of the United States Supreme Court’s ruling in Obergefell demonstrate the need for a permanent injunction in this case. It is clear that the decision by the United States Supreme Court in Obergefell does not
6

provide certainty that the alleged violations will not recur. Accordingly, the Court finds that as long as the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act remain on the books, there continues to be a live controversy with respect to which the Court can give meaningful relief.
III. Motion for Permanent Injunction and Final Judgment Plaintiffs move for entry of a permanent injunction based on the Supreme Court’s decision in Obergefell, upholding this Court’s findings in its preliminary injunction order. The parties have had ample opportunity to respond to the merits of Plaintiffs’ claims. The Court is not persuaded that the grant of class certification or its other prior rulings should be reconsidered. Having found that this action is not moot, the Court also finds that the reasoning in Obergefell is determinative of the case. Accordingly, entry of a permanent injunction is appropriate.
CONCLUSION For the reasons stated above, the motion of Judge Don Davis to withdraw as Class Representative and for his counsel to withdraw as Class Counsel (Doc. 130), is DENIED, the motion of Attorney General Strange to dismiss (Doc. 166), is DENIED and Plaintiffs’ motion for permanent injunction and final judgment (Doc. 142), is GRANTED. Final Judgment will be entered by separate order. DONE and ORDERED this 7th day of June, 2016.
/s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,
Plaintiffs, vs. LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, et al.,
Defendants

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) )

FINAL JUDGMENT

In accordance with the Order entered this date granting Plaintiffs’ motion for

permanent injunction and final judgment, it is ORDERED, ADJUDGED, and

DECREED that JUDGMENT is entered in favor of the named Plaintiffs and

Plaintiff Class members.

It is ORDERED and DECLARED that ALA. CONST. art. I, § 36.03 (2006)

and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due

Process Clause and the Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution. Judge Don Davis, Judge Tim Russell and the

members of the Defendant Class are hereby ENJOINED from enforcing the

Alabama laws that prohibit or fail to recognize same-sex marriage. If the named

Plaintiffs or any members of the Plaintiff Class take all steps that are required in

the normal course of business as a prerequisite to issuing a marriage license to

opposite-sex couples, Judge Don Davis, Judge Tim Russell and the members of the Defendant Class may not deny them a license on the ground that they are same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order, including any injunction or mandate issued by the Alabama Supreme Court pertaining to same-sex marriage. This injunction binds all the officers, agents, servants and employees, and others in active concert or participation with Judge Don Davis, Judge Tim Russell or any of the members of the Defendant Class who would seek to enforce the marriage laws of Alabama that prohibit or fail to recognize same-sex marriage.
DONE and ORDERED this 7th day of June, 2016. /s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
2

 
 Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,

)

Plaintiffs,

) )

v.

)

LUTHER STRANGE, in his official

)

capacity as Attorney General for the

)

State of Alabama, et al.,

)

)

Defendants.

)

)

Civil Action No. 14-0424-CG-C

MOTION TO ALTER OR AMEND JUDGMENT

Pursuant to Fed.R.Civ.P. 59(e), plaintiffs move this Court to alter or amend

the Final Judgment entered on June 7, 2016 (Doc. 180) to include a permanent

injunction against the Attorney General that would be enforceable by plaintiffs or

any member of the plaintiff class. In support of this Motion, plaintiffs state the

following:

1. In seeking final relief in this matter, plaintiffs couched their request

(Doc. 142) as making the preliminary injunction (Doc. 123) permanent. The Motion

for Permanent Injunction and Final Judgment (Doc. 142) inadvertently failed to

request that the preliminary injunction against the Attorney General (Doc. 29) be

made permanent.

2. The Court made clear in its omnibus Order, which denied the Attorney

General’s motion to dismiss the claims against him as moot (Doc. 166), that relief

against the Attorney General was warranted:

Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 2 of 6
Attorney General Strange moves to dismiss this case as moot because a permanent injunction barring the enforcement of Alabama’s marriage laws have already issued and the Attorney General continues to remain in full compliance with it. The Attorney General acknowledges that the Supreme Court’s decision in Obergefell v. Hodges 135 S.Ct. 2584(2015) is the law of the land. He contends that nothing more remains to be done in this case and that there is no longer a live case or controversy between the Attorney General and the Plaintiffs.
* * * Plaintiffs conversely argue that none of the Defendants’ assurances provide Plaintiffs or the members of the Plaintiff Class with a formal, enforceable order should the Attorney General (or a future Attorney General) or other Defendants violate this Court’s injunction or fail to fully recognize marriages validly entered into in Alabama or elsewhere. Current or future state and county officials may disagree about Obergefell’s applicability to the challenged Alabama laws or otherwise resist the decision. This Court agrees that the need for a permanent injunction is clear.
Doc. 179 at 2-3.
3. In rejecting the Attorney General’s voluntary-cessation argument, the
Court recognized that “[t]he formidable, heavy burden of persuading the court that
the challenged conduct cannot reasonably be expected to start up again lies with the
party asserting mootness.” Id. at 4 (citations omitted). And the Court specifically
found that “the Attorney General and other Defendants have not satisfied this
burden.” Id. Rather, the Court observed that “[a]lthough the Attorney General
professes that he will continue to abide by the decision in Obergefell, … there has
been nothing voluntary about the defendants’ change of tack. The Defendants
defended this case with vigor from the outset and the challenged statutes remain on
the books.” Doc. 179 at 5 (citation and internal quotation marks omitted).
4. The Court further rejected the Attorney General’s argument that
because he was “already subject to a permanent injunction from another case in this
2

Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 3 of 6
Court, Searcy v. Strange, No. 14-cv-208-CG-N,” no further injunctive relief against him was warranted because “the Plaintiffs in this case lack standing to enforce the Searcy injunction.” Doc. 179 at 5.
5. Finally, the Court found “that as long as the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act remain on the books, there continues to be a live controversy with respect to which the Court can give meaningful relief.” Id. at 7. Consequently, in order for plaintiffs and the plaintiff class to receive complete and final relief, the Final Judgment should be altered or amended to make the preliminary injunction previously entered against the Attorney General (Doc. 29) permanent and enforceable by plaintiffs and the plaintiff class.
WHEREFORE, plaintiffs move the court to alter or amend the Final Judgment, Doc. 180, to include a permanent injunction against the Attorney General.
Respectfully Submitted, NATIONAL CENTER FOR LESBIAN RIGHTS By: /s/ Shannon P. Minter Shannon P. Minter* Christopher F. Stoll* National Center for Lesbian Rights 1100 H Street, NW, Suite 540 Washington, DC 20005 Tel: (202) 734-3545 Fax: (415) 392-8442 Email: sminter@nclrights.org Email: cstoll@nclrights.org
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Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 4 of 6
Heather Fann Boyd, Fernambucq, Dunn & Fann, P.C. 3500 Blue Lake Drive, Suite 220 Birmingham, AL 35243 Tel: (205) 930-9000 Fax: (205) 930-9010 Email: hfann@bfattorneys.net
/s Randall C. Marshall Randall C. Marshall (MARSR3023) ACLU Foundation of Alabama P.O. Box 6179 Montgomery, AL 36106-0179 Tel: (334) 420-1741 Fax: (334) 269-5666 Email: rmarshall@aclualabama.org
David Dinielli** Cal. Bar No. 177904 Scott D. McCoy* N.Y. Bar No. 3970803 Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 Tel: (334) 956-8200 Email: david.dinielli@splcenter.org Email: scott.mccoy@splcenter.org
Richard B. Katskee* D.C. Bar No. 474250 Americans United for Separation of Church and State 1901 L Street, NW, Suite 400 Washington, D.C. 20036 Tel: (202) 466-3234 Email: dietert@au.org; katskee@au.org
Attorneys for Plaintiffs
* Appearing pro hac vice ** Motion for admission pro hac vice forthcoming
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Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 5 of 6
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system on June 15, 2016. I certify that service will be accomplished by the CM/ECF system to the following parties:
Luther Strange Attorney General Andrew L. Brasher Solicitor General James W. Davis Laura Howell Assistant Attorneys General State of Alabama Office of Attorney General 501 Washington Avenue Montgomery, Alabama 36130 Tel: (334) 353-2609
Lee L. Hale (HAL026) 501 Church Street Mobile, AL 36602 Phone: (251) 433-3671
J. Michael Druhan, Jr. (Druh2816) Harry V. Satterwhite (Satth4909) SATTERWHITE, DRUHAN, GAILLARD & TYLER, LLC 1325 Dauphin Street Mobile, Alabama 36604 (251) 432-8120 (phone) (251) 405-0147 (fax) mike@satterwhitelaw.com harry@satterwhitelaw.com
Mark S. Boardman (ASB-8572-B65M) Clay R. Carr (ASB-5650-C42C) Teresa B. Petelos (ASB-8716-L66T) BOARDMAN, CARR, BENNETT, WATKINS, HILL & GAMBLE, P.C. 400 Boardman Drive Chelsea, Alabama 35043-8211 Telephone: (205) 678-8000
Attorneys for Defendant Don Davis and the Defendant Class
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Case 1:14-cv-00424-CG-C Document 183 Filed 06/15/16 Page 6 of 6
Kendrick E. Webb (WEB022) Jamie Helen Kidd (HIL060) WEBB & ELEY, P.C. 7475 Halcyon Pointe Drive (36117) Post Office Box 240909 Montgomery, Alabama 36124 (334) 262-1850 T (334) 262-1772 F kwebb@webbeley.com jkidd@webbeley.com John David Whetstone 17090 Lagoon Winds Drive Gulf Shores, AL 36542 T (251) 500-1337 davidwhetstone1@yahoo.com Attorneys for Defendant Tim Russell
/s/ Randall C. Marshall
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 Case 1:14-cv-00424-CG-C Document 193 Filed 08/22/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,
Plaintiffs, vs. LUTHER STRANGE, in his official capacity as Attorney General for the State of Alabama, et al.,
Defendants

) ) ) ) ) ) CIVIL ACTION NO. 14-0424-CG-C ) ) ) ) ) )

AMENDED FINAL JUDGMENT

In accordance with the Orders entered granting Plaintiffs’ motion for

permanent injunction and final judgment and granting Plaintiffs’ motion to alter or

amend judgment it is ORDERED, ADJUDGED, and DECREED that

JUDGMENT is entered in favor of the named Plaintiffs and Plaintiff Class

members.

It is ORDERED and DECLARED that ALA. CONST. art. I, § 36.03 (2006)

and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due

Process Clause and the Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution. The Attorney General for the State of Alabama,

Judge Don Davis, Judge Tim Russell and the members of the Defendant Class are

hereby ENJOINED from enforcing the Alabama laws that prohibit or fail to

recognize same-sex marriage. If the named Plaintiffs or any members of the

Case 1:14-cv-00424-CG-C Document 193 Filed 08/22/16 Page 2 of 2
Plaintiff Class take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, the Attorney General for the State of Alabama, Judge Don Davis, Judge Tim Russell and the members of the Defendant Class may not deny them a license on the ground that they are same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order, including any injunction or mandate issued by the Alabama Supreme Court pertaining to same-sex marriage. This injunction binds all the officers, agents, servants and employees, and others in active concert or participation with the Attorney General for the State of Alabama, Judge Don Davis, Judge Tim Russell or any of the members of the Defendant Class who would seek to enforce the marriage laws of Alabama that prohibit or fail to recognize same-sex marriage.
DONE and ORDERED this 22nd day of August, 2016. /s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
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 ADMINISTRATIVE ORDER OF THE CHIEF JUSTICE OF THE ALABAMA SUPREME COURT
WHEREAS, IN CONSIDERATION OF THE FOLLOWING:
On March 3, 2015 the Alabama Supreme Court issued a lengthy opinion upholding the constitutionality of Article I, Section 36.03(b), Ala. Const. 1901 ("the Sanctity of Marriage Amendment"), and Section 30-1-19(b), Ala. Code 1975 ("the Marriage Protection Act"), which both state: "Marriage is inherently a unique relationship between a man and a woman." Ex parte State ex rel. Alabama Policy Institute, [Ms. 1140460, March 3, 2015] ___ So. 3d ___ (Ala 2015) (hereinafter "API").
The API opinion relied on earlier opinions of the United States Supreme Court and the Alabama Supreme Court for authority. In 1885 the Supreme Court of the United States described marriage as "the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Murphy v. Ramsey, 114 U.S. 15, 45. The Alabama Supreme Court similarly stated that "'[T]he relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness.'" Goodrich v. Goodrich, 44 Ala. 670, 675 (1870).
In its March 3 order in API, the Alabama Supreme Court stated that "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to [the Sanctity of Marriage Amendment or the Marriage Protection Act]. Nothing in the United States Constitution alters or overrides this duty."
A week later the Court reaffirmed that its March 3 order bound every Alabama probate judge "to the end of achieving order and uniformity in the application of Alabama's marriage laws." API (Order of March 10, 2015). The Court also stated that "all probate judges in this State may issue marriage licenses only in accordance with Alabama law as described in our opinion of March 3, 2015." API (Order of March 12, 2015).
On June 26, 2015, approximately three months after the Alabama Supreme Court issued its orders in API, the United States Supreme Court in Obergefell v Hodges, 135 S. Ct. 2584 (2015), held unconstitutional certain marriage laws in the

states of Michigan, Kentucky, Ohio, and Tennessee, which fall within the jurisdiction of the Sixth Circuit Court of Appeals. In its 5-4 opinion the high court noted that "[t]hese cases come from Michigan, Kentucky, Ohio, and Tennessee." Obergefell, 135 S. Ct. at 2593.
On June 29, 2015, three days after the issuance of the Obergefell opinion, the Alabama Supreme Court invited the parties in API to address the "effect of the Supreme Court's decision on this Court's existing orders in this case no later than 5:00 p.m. on Monday, July 6." API (Order of June 29, 2015) (emphasis added).
Several parties filed briefs in response to that request. Additionally, on Sept 16, 2015, Washington County Probate Judge Nick Williams filed an "Emergency Petition for Declaratory Judgement and/or Protective Order in Light of Jailing of Kentucky Clerk Kim Davis," which requested the Court "to prevent the imprisonment and ruin of their State's probate judges who maintain fidelity to their oath of office and their faith." On September 22, Elmore County Probate Judge John Enslen joined Judge Williams's Emergency Petition. On October 5, Judge Enslen filed a separate petition for a declaratory judgment arguing additional grounds for relief.
In October, Eunie Smith, President of the Eagle Forum of Alabama and Dr. John Killian, Sr., former President of the Alabama Baptist State Convention, published a guest opinion on AL.com stating that they "anxiously await" the pending decision on the effect of Obergefell on the orders in API. In December, the Southeast Law Institute of Birmingham, whose President is local counsel for some of the parties in API, stated in an online commentary that he was "encouraging all of those who have great concern over this issue to be prayerfully patient" as the Court deliberates.
Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the "existing orders" in API. Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.
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I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court. That issue remains before the entire Court which continues to deliberate on the matter.
Nevertheless, recent developments of potential relevance since Obergefell may impact this issue. The United States Court of Appeals for the Eighth Circuit recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction. While applying Obergefell as precedent, the Eighth Circuit rejected the Nebraska defendants' suggestion that Obergefell mooted the case. The Eighth Circuit stated: "The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee -- not Nebraska." Waters v Ricketts, 798 F.3d 682, 685 (8th Cir. 2015) (emphasis added). In two other cases the Eighth Circuit repeated its statement that Obergefell directly invalidated only the laws of the four states in the Sixth Circuit. See Jernigan v Crane,796 F.3d 976, 979 (8th Cir. 2015) ("not Arkansas"); Rosenbrahn v Daugaard, 799 F.3d 918, 922 (8th Cir 2015) ("not South Dakota").
The United States District Court for the District of Kansas was even more explicit: "While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses ...." Marie v Mosier, 2015 WL 4724389 (D. Kan. August 10, 2015). Rejecting the Kansas defendants' claim that Obergefell mooted the case, the District Court stated that "Obergefell did not rule on the Kansas plaintiffs' claims." Id.
The above cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court. "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762 (1989). "[N]o court can make a decree which will bind anyone but a party ... no matter how broadly it words its decree." Alemite Mfg. Corp. v Staff, 42 F.3d 832, 832 (2d Cir. 1930). See also Rule 65, Fed R. Civ. P., on the scope of an injunction.
Whether or not the Alabama Supreme Court will apply the
3

reasoning of the United States Court of Appeals for the Eighth Circuit, the United States District Court for the District of Kansas, or some other legal analysis is yet to be determined. Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the United States Supreme Court in Obergefell.
NOW THEREFORE,
As Administrative Head of the Unified Judicial System of Alabama, authorized and empowered pursuant to Section 12-2-30(b)(7), Ala. Code 1975, to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state," and under Section 12-2-30(b)(8), Ala. Code 1975, to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere";
And in that "an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." United States v. Mine Workers, 330 U.S. 258, 293 (1947) (quoted in Fields v. City of Fairfield, 143 So. 2d 177, 180 (Ala. 1962));
IT IS ORDERED AND DIRECTED THAT:
Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
DONE January 6, 2016.
__________________ Roy S. Moore Chief Justice
4

 
 STATE OF ALABAMA -- JUDICIAL SYSTEM
ADMINISTRATIVE ORDER OF THE CHIEF JUSTICE OF THE SUPREME COURT
WHEREAS, pursuant to Article VI, Section 149, of the Constitution of Alabama, the Chief Justice of the Supreme Court of Alabama is the administrative head of the judicial system; and
WHEREAS, pursuant to § 12-2-30(b)(7), Ala. Code 1975, the Chief Justice is authorized and empowered to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state"; and
WHEREAS, pursuant to § 12-2-30(b)(8), Ala. Code 1975, the Chief Justice is authorized and empowered to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere"; and
WHEREAS, pursuant to Article VI, Section 139(a), of the Constitution of Alabama, the Probate Judges of Alabama are part of Alabama's Unified Judicial System; and
WHEREAS, pursuant to Article XVI, Section 279, of the Constitution of Alabama, the Probate Judges of Alabama are bound by oath to "support the Constitution of the United States, and the Constitution of the State of Alabama"; and
WHEREAS, as explained in my Letter and Memorandum to the Alabama Probate Judges, dated February 3, 2015, and incorporated fully herein by reference, the Probate Judges of Alabama are not bound by the orders of January 23, 2015 and January 28, 2015 in the case of Searcy v. Strange (No. 1:14-208-CG-N) (S.D. Ala.) or by the order of January 26, 2015 in Strawser v. Strange (No. 1:14-CV424-CG-C) (S.D. Ala.); and
WHEREAS, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the aforementioned orders bind only the

Alabama Attorney General and do not bind the Probate Judges of Alabama who, as members of the judicial branch, neither act as agents or employees of the Attorney General nor in concert or participation with him; and
WHEREAS, the Attorney General possesses no authority under Alabama law to issue marriage licenses, and therefore, under the doctrine of Ex parte Young, 209 U.S. 123 (2008), lacks a sufficient connection to the administration of those laws; and
WHEREAS, the Eleventh Amendment of the United States Constitution prohibits the Attorney General, as a defendant in a legal action, from standing as a surrogate for all state officials; and
WHEREAS, the separation of powers provisions of the Alabama Constitution, Art. III, §§ 42 and 43, Ala. Const. 1901, do not permit the Attorney General, a member of the executive branch, to control the duties and responsibilities of Alabama Probate Judges; and
WHEREAS, the Probate Judges of Alabama fall under the direct supervision and authority of the Chief Justice of the Supreme Court as the Administrative Head of the Judicial Branch; and
WHEREAS, the United States District Court for the Southern District of Alabama has not issued an order directed to the Probate Judges of Alabama to issue marriage licenses that violate Alabama law; and
WHEREAS, the opinions of the United States District Court for the Southern District of Alabama do not bind the state courts of Alabama but only serve as persuasive authority; and
WHEREAS, some Probate Judges have expressed an intention to cease issuing all marriage licenses, others an intention to issue only marriage licenses that conform to Alabama law, and yet others an intention to issue marriage licenses that violate Alabama law, thus creating confusion and disarray in the administration of the law; and
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WHEREAS, the Alabama Department of Public Health has redrafted marriage license forms in contradiction to the public statements of Governor Bentley to uphold the Alabama Constitution, and has sent such forms to all Alabama Probate Judges, creating further inconsistency in the administration of justice; and
WHEREAS, cases are currently pending before The United States District Court for the Middle District of Alabama and the United States District Court for the Northern District of Alabama that could result in orders that conflict with those in Searcy and Strawser, thus creating confusion and uncertainty that would adversely affect the administration of justice within Alabama; and
WHEREAS, if Probate Judges in Alabama either issue marriage licenses that are prohibited by Alabama law or recognize marriages performed in other jurisdictions that are not legal under Alabama law, the pending cases in the federal district courts in Alabama outside of the Southern District could be mooted, thus undermining the capacity of those courts to act independently of the Southern District and creating further confusion and uncertainty as to the administration of justice within this State; and
WHEREAS Article I, Section 36.03, of the Constitution of Alabama, entitled "Sanctity of marriage," states:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
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(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.
and
WHEREAS § 30-1-9, Ala. Code 1975, entitled "Marriage, recognition thereof, between persons of the same sex prohibited," states:
(a) This section shall be known and may be cited as the “Alabama Marriage Protection Act.”
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability
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and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
and
WHEREAS, neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act:
NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:
To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:
Effective immediately, 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 Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.
Should any Probate Judge of this state fail to
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follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests "the supreme executive power of this state," Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. "The Governor shall take care that the laws be faithfully executed." Art. V, § 120, Ala. Const. 1901. "'If the governor's "supreme executive power" means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.'" Tyson v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)). DONE on this 8th day of February, 2015.
________________________ Roy S. Moore Chief Justice
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 IN THE ALABAMA COURT OF THE

In the Matter of:
ROY S. MOORE, Chief Justice Supreme Court of Alabama

Case No. 46

COMPLAINT The Judicial Inquiry Commission of the State of Alabama files this Complaint against Chief Justice Roy S. Moore of the Supreme Court of Alabama. The facts and charges upon which this Complaint is based, averred separately and severally, are set out below.
I.
FACTS A. Prior to Administrative Order of January 6, 2016 1. In 2003, Chief Justice Moore was removed from the Office of Chief Justice by Order of the Alabama Court of the Judiciary upon its finding he violated the Alabama Canons of Judicial Ethics by willfully refusing to obey an injunction issued by a United States District Court, when that order was in effect, directed to him, and binding upon

1

him. In the Matter of Roy S. Moore, Chief Justice of Alabama, COJ #33.
2. In January 2013, Roy S. Moore became Chief Justice of the Supreme Court of Alabama for the second time and has continued in that position until the present. In that capacity, Chief Justice Moore, in addition to his other responsibilities, has served continuously as the administrative head of the judicial system of the state of Alabama. See Ala. Const. 1901, art. VI, § 148; Ala. Code 1975, § 12-2-30(b).
3. Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law.
4. During Chief Justice Moore's current term of office, the existence of a right to marriage for same-sex couples has been a subject of litigation across the United States, including the United States Supreme Court, and in Alabama.
5. That litigation culminated in the United States Supreme Court's decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that
2

[S]ame-sex couples may exercise the fundamental right to marry in all States,
id. at 2607, and
[T]here is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
Id. at 2608 (emphasis added) .
6. For reasons he has clearly enunciated on numerous
occasions and, as is his personal right, Chief Justice
Moore strongly disagrees with those courts, especially
federal courts, that have found that same-sex couples have
an enforceable fundamental right under the United States
Constitution to marry and that right cannot be infringed
upon by the states. 1
1 Chief Justice Moore has, however, taken actions in which he failed to adhere to the high standards required by the Alabama Canons of Judicial Ethics include the following:
(a) Showing disrespect for and failing to acknowledge the authority of a United States District Court's injunction, through various non-adjudicatory communications issued as Chief Justice, culminating in his issuance of the Administrative Order of January 6, 2016, that directs or appears to direct Alabama's 68 probate judges to disregard an unstayed, binding federal injunction directed to them;
(b) By way of his January 6, 2016 Administrative Order, ordering or appearing to order all 68
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7. Chief Justice Moore, however, took an oath of
office to support the United States Constitution (Ala.
Const. 1901, art. XVI, § 279) and, as a state judicial
officer, is bound by the United States Supreme Court's
interpretation and application of that Constitution.
8. Chief Justice Moore's conduct in this matter
involves the interplay of four cases:
• Searcy v. Strange, Civil No. 14-028-CG-N ("Searcy"),
and Strawser v. Strange, Civil No. 14-0424-CG-C
("Strawser"), before the United States District Court
for the Southern District of Alabama, litigating the
Alabama probate judges to violate the Alabama Canons of Judicial Ethics when he well knew the precedent for such violation is removal from office; (c) Abusing his authority as chief administrative officer of Alabama's court system by issuing an Administrative Order on substantive law issues, i.e., his Administrative Order of January 6, 2016; (d) Issuing an Administrative Order on a matter pending before his court for the court's decision i.e., his Administrative Order of January 6, 2016; (e) Commenting on a case pending before his court through his Administrative Order of January 6, 2016; (f) Issuing an Administrative Order of January 6, 2016, that necessitated his disqualification in any subsequent proceeding in the case discussed.
4

constitutionality of Alabama's ban on same-sex marriage and the recognition of such marriages2 ; • Obergefell v. Hodges, 135 S. Ct. 2584 (June 26, 2015) ("Obergefell"), argued before the United States Supreme Court on April 28, 2015, recognizing that, under the United States Constitution, "same-sex couples may exercise the fundamental right to marry in all States," id. at 2607, and "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character," id. at 2608(emphasis added); and • Ex parte State ex rel. Alabama Policy Institute, Ms. 1140460, 2015 WL 892752, (Ala. March 3, 2015), with additional motions and petitions being dismissed and the certificate of judgment issued on March 4, 2016, 2016 WL 859009 ("API"), before the Alabama Supreme Court, filed after Searcy and Strawser were initially decided. Contrary to Searcy and Strawser, the
2 The Alabama Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-19, Ala. Code 1975, ~s amended ("the Alabama marriage laws").
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Alabama Supreme Court held that Alabama's ban on same-sex marriages, see n.2 (the Alabama marriage laws), is constitutional and the United States Constitution does not guarantee same-sex couples the right to marry. 9. In 2014, Searcy and Strawser were filed, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Southern District of Alabama: Searcy on May 11, 2014, and Strawser on September 11, 2014. The United States District Court took jurisdiction under 28 U.S.C § 1331 (federal-question jurisdiction) to decide the constitutionality of the Alabama marriage laws under the United States Constitution, as those laws denied the right of marriage and accompanying rights to the plaintiffs as same-sex couples. 10. On January 23, 2015, the United States District Court held the Alabama marriage laws unconstitutional insofar as those laws denied marital recognition to samesex couples. Searcy v. Strange, 81 F. Supp. 3d 1285 (S.D. Ala. 2015). 11. Three days later, on January 26, 2015, the District Court, in Strawser, granted a preliminary
6

injunction against Alabama's Attorney General, Luther Strange, the only party-defendant at that time, enjoining him from enforcing the Alabama marriage laws that prohibit same sex-marriage in Alabama. Strawser (Unpublished Order, Jan. 26, 2015).
12. The next day, January 27, 2015, Chief Justice Moore wrote a letter to Alabama Governor Robert Bentley, using Alabama Supreme Court letterhead containing the names of the nine justices. That letter in part explains Chief Justice Moore's refusal to acknowledge and respect any federal district court authority over state officials regarding the unconstitutionality of the Alabama marriage laws. Chief Justice Moore begins his letter:
The recent ruling of Judge Callie Grenade of the United States District Court for the Southern District of Alabama has raised serious, legitimate concerns about the propriety of federal court jurisdiction over [the Alabama marriage laws] .
13. On January 28, 2015, the District Court issued an "Order Clarifying Judgment" in Searcy, stating the injunction bound only the parties to that case, but noting that other state agents who did not choose to follow the court's holding could be subject to suit and payment of attorney fees.
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14. On February 3, 2015, the United States Court of
Appeals for the Eleventh Circuit declined to enter a stay
of the District Court's injunction in Searcy pending
appeal.
15. In addition, on February 3, 2015, Chief Justice
Moore sent an "advisory letter" to all probate judges,
advising them on how to address the issue. In his letter,
he "warn[ed] against any unlawful intrusion into the
jurisdiction and sovereignty of this state and its courts."
He concluded:
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.
I urge you to uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability, So Help You God!
16. With his "advisory letter," Chief Justice Moore
sent the probate judges his 27-page memorandum of law,
addressing his legal conclusion that probate judges do not
have to defer to nor are they in any sense bound by lower
8

federal court decisions on constitutional questions. He also presented argument for his assertion that the District Court lacked jurisdiction. He concluded with the declaration that he is of "the opinion that an Alabama probate judge may deliver his own considered opinion, subject to review, on the issues raised in Searcy and Strawser and is not required to defer to federal district and circuit court rulings on the same questions."
17. On February 8, 2015, Chief Justice Moore issued an Administrative Order in which he directly addressed the effect of Strawser and its initial injunction on Alabama's 68 probate judges, advising that the decision affected only the parties to the litigation and did not affect probate judges who were not parties. (At that time, Strawser was not a class action and did not include all of Alabama's 68 probate judges as defendants.) In this Administrative Order, Chief Justice Moore "incorporated fully" his February 3, 2015 letter and memorandum.
18. Four days later, on February 12, 2015, in Strawser v. Strange, 44 F. Supp. 3d 1206 (S.D. Ala. 2015), tracking its decision in Searcy, the District Court again held unconstitutional the denial of marriage licenses to same-
9

sex couples under the Alabama marriage laws as violating both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
19. In that February 12, 2015 order in Strawser, the Court enjoined Mobile County Probate Judge Don Davis, who had been added as a party-defendant (the only probate-judge defendant at that time), from refusing to issue marriage licenses to the same-sex party-plaintiffs. 44 F. Supp. 3d at 1209.
20. On that same day, February 12, 2015, API was docketed in the Alabama Supreme Court. The Alabama marriage laws had already been declared unconstitutional in Searcy and Strawser. Yet, the petitioners in API sought the Court's issuance of a writ of mandamus declaring, contrary to the District Court's orders and injunctions, that the Alabama marriage laws do not violate the United States Constitution and directing probate judges to continue to enforce the Alabama marriage laws by complying with the laws' ministerial duty to issue marriage licenses only to opposite-sex couples.
10

21. On March 3, 2015, the Alabama Supreme Court, contrary to the rulings of the District Court declaring the Alabama marriage laws unconstitutional, declared those provisions to be constitutional and ordered all probate judges who were not parties to Strawser to enforce those provisions in executing their duties regarding the issuance of marriage licenses. 3 Shortly thereafter, the Alabama Supreme Court extended its ruling to all probate judges.
22. On March 6, 2015, three days after the Alabama Supreme Court's ruling in API, plaintiffs in Strawser moved to amend the complaint and to certify both a plaintiff class and a defendant class.
23. On May 21, 2015, the District Court certified a plaintiff class, consisting of same-sex couples subject to discrimination under the Alabama marriage laws, and a defendant class consisting of all Alabama probate judges who, in the performance of their duties, are subject to compliance with those laws. Strawser v. Strange, 307 F.R.D. 604 (S.D. Ala. 2015).
3 In several instances in API, the Court showed sensitivity to the existing District Court orders and injunctions by specifically limiting its writ to those probate judges not then subject to injunctions.
11

24. By separate order on the same date, May 21, 2015,

the District Court in Strawser issued a preliminary

injunction enjoining all members of the defendant class,

i.e., all probate judges in Alabama, from refusing to issue

marriage licenses to same-sex couples for the sole reason

the couple is of the same sex. Strawser v. Strange, 105 F.

Supp. 3d 1323 (S.D. Ala. 2015).

25. In issuing the injunction, the District Court

enjoined all Alabama probate judges from following any law

or order, specifically including any order or injunction

issued by the Alabama Supreme Court, that would deny a

marriage license to same-sex couples on that ground alone:

If the named Plaintiffs or any member of the

Plaintiff Class take all steps that are required

in the normal course of business as a prerequisite

to issuing a marriage license to opposite-sex

couples,

. the members of the Defendant Class

may not deny them a license on the ground that

they are same-sex couples or because it is

prohibited by the Sanctity of Marriage Amendment

and the Alabama Marriage Protection Act or by any

other Alabama law or Order, including any

injunction issued by the Alabama Supreme Court

[API] pertaining to same-sex marriage. This

injunction binds . . any of the members of the

Defendant Class who would seek to enforce the

12

marriage laws of Alabama which prohibit or fail to recognize same-sex marriage. Id. at 1330. 26. In issuing the May 21, 2015 preliminary injunction in Strawser, the District Court considered whether it should abstain from issuing an injunction to all probate judges that would conflict with the injunction issued by the Alabama Supreme Court. The Court declined to abstain, finding that because the class plaintiffs in Strawser were not parties to API and therefore not bound by the conclusions of the Alabama Supreme Court, they have a right to have their rights enforced. The District Court cited Hale v. Bimco Trading, 306 U.S. 375, 377-78 (1939), for the rule of law: a successful mandamus proceeding in a state court against state officials to enforce a challenged statute does not bar injunctive relief in a United States district court where the federal plaintiffs are not bound by the state court mandamus. The District Court, in addition, noted its holding that the Alabama marriage laws are unconstitutional predated the Alabama Supreme Court's action. 105 F. Supp. 3d at 1329.
13

27. The District Court stayed its injunction pending a decision of the United States Supreme Court in Obergefell and related cases. 105 F. Supp. 3d at 1330. When the opinion in Obergefell was issued on June 26, 2015, the District Court's stay-by its own terms-was lifted, and its injunction went into effect.
28. By ordering all Alabama probate judges not to deny same-sex couples a marriage license on the ground that it is prohibited by any order in API, the District Court rendered ineffective any existing order or future order in API (or any other case) that would require probate judges to deny a same-sex couple a marriage license based on the same-sex character of the couple. When the District Court's injunction became effective, the writ and ensuing injunction that had been issued by the Alabama Supreme Court in API no longer had any enforceable legal effect.
29. On June 26, 2015, the United States Supreme Court issued its decision in Obergefell. The Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the United States Constitution and
14

that bans on same-sex marriage violate these constitutional provisions. The Court clearly stated:
The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. id. at 2607, and
It follows that the Court also must hold-and it now does hold-that that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its samesex character. Id. at 2607-08 (emphasis supplied). The United States Supreme Court, thus, gave clear instruction that no state court decision holding to the contrary could stand. 30. On June 29, 2015, three days after the Obergefell decision, the Alabama Supreme Court invited additional briefing on the effect of Obergefell on the Court's existing orders in API. 31. On July 1, 2015, the District Court "clarified" its May 21, 2015 preliminary injunction, in Strawser, stating that it "is now in effect and binding on all members of the Defendant Class [all] probate judges in Alabama who are otherwise bound by [the Alabama marriage laws]." Strawser (Unpublished Order, July 1, 2015).
15

32. When the District Court lifted the stay, all provisions of that Court's order became effective, including that all 68 probate judges in Alabama are enjoined from following any conflicting Alabama law, including Alabama Supreme Court orders. Obergefell's holding had become binding precedent for all lower federal courts and state courts.
33. The following statement by the District Court in Strawser describes the unenforceability of the Alabama Supreme Court's injunction in API: "Judge Davis and the other probate judges cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution," 105 F. Supp. 3~ at 1330. From that point forward, the Alabama Supreme Court's order, or any subsequently rendered order to the same effect, would no longer be effective or enforceable, i.e., those enjoined by API could no longer follow the order. Clearly, probate judges could no longer exercise a ministerial duty to refuse to issue marriage licenses to same-sex couples based solely on their same-sex character.
34. Alabama's probate judges, the defendant class in Strawser, almost immediately recognized they were bound by
16

Obergefell and the injunction in Strawser. Two weeks after
Obergefell, on July 10, 2015, the probate judges filed
their "Response to Plaintiffs' Motion for a Permanent
Injunction" in Strawser wherein they explicitly recognized
their duty to obey the injunction of the District Court, as
follows:
Probate judges take an oath to follow the law upon investiture. The U.S. Supreme Court has now resolved the conflict between this Court's rulings and the ruling of the Alabama Supreme Court. Both Courts are entitled to interpret the U.S. Constitution, and the U.S. Supreme Court decided that this Court's interpretation was correct, essentially overruling the Alabama Supreme Court's determination. The bottom line is this: probate judges in this State were following Court orders when they either refused to issue marriage licenses or refused to issue same-sex marriage licenses. Now that confusion about the law has been cleared by the U.S. Supreme Court, there is no indication that the probate judges will violate their oath and refuse to follow what the Supreme Court has established, and what the Alabama Attorney General and the Governor have said is now the law of the land.
Strawser, Doc. 152, p. 12-13, July 10, 2015.
35. The diminution of API was also recognized by
United States Court of Appeals for the Eleventh Circuit.
On an interlocutory appeal, one of the probate judges
argued the District Court's preliminary injunction was
improper because it conflicted with an order from the
17

Alabama Supreme Court. The Eleventh Circuit summarily rejected this argument on October 20, 2015, stating:
Since the filing of this appeal, the Alabama Supreme Court's order was abrogated by the Supreme Court decision in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), which held that the fundamental right to marry is guaranteed to samesex couples by both the Due Process Clause and the Equal Protection Clause, and that bans on same-sex marriage are unconstitutional.
Strawser v. State, (No. 15-12508-CC, Oct. 20, 2015 (11th Cir. 2015). The Court of Appeals dismissed the appeal as to the District Court's granting of the preliminary injunction. The mandate of the Court of Appeals, making that Court's decision final, was issued on the same date.
B. Administrative Order of January 6, 2016 to Present 36. On January 6, 2016, the Alabama Supreme Court, by
invitation to the parties, still had before it for consideration the issue of the effect of the decision in Obergefell on the Court's decision in API. While the Court had set July 10, 2015, as the due date for the filings, the Court had taken no action, and the certificate of judgment signifying the case was closed had not been issued.
18

37. On January 6, 2016, API remained a pending case although its injunction against probate judges had been eviscerated by Obergefell's holding that same-sex couples have the fundamental right to marry in all States," 135 S.Ct. at 2607, and "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character," id. at 2608, as well as by the injunction filed in the District Court.
38. On January 6, 2016-despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell-Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:
19

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme
Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
39. In light of all of the circumstances set out in this complaint, Chief Justice Moore's January 6, 2016 Administrative Order directs or gives the appearance of directing probate judges to not obey the Strawser injunction that specifically prohibits them from following the Alabama Supreme Court's order in API.
40. In his Administrative Order of January 6, 2016, Chief Justice Moore again refused to acknowledge and respect an injunction issued by a United States District Court-this time, an injunction enjoining all 68 probate judges from following any orders of the Alabama Supreme Court that are contrary to the District Court's order. 4
4 See n. 1, regarding the 2003 Order of the Court of the Judiciary finding Chief Justice Moore in violation of the Canons by willfully refusing to obey a United States District Court injunction. As noted, the Court imposed the sanction of removal from office.
20

41. Chief Justice Moore flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch granted to him under Ala. Const. 1901, art. VI, and Ala. Code 1975, § 12-2-30, in issuing his Administrative Order of January 6, 2016, and ordering or appearing to order the probate judges to not obey the District Court's injunction; in so doing, Chief Justice Moore knowingly ordered them to commit violations of the Canons of Judicial Ethics, knowingly subjecting them to potential prosecution and removal from office.
42. Chief Justice Moore's ignoring the federal injunction and his issuance of the January 6, 2016 Administrative Order echoed his declared belief that United States District Courts, standing alone, have no authority or no superior authority over the constitutionality of state statutes or state-court orders enjoining state officials from enforcing those statutes, without the United States Supreme Court's acquiescence. He reconfirmed that position in his testimony before the Commission. When asked about the specific provision in the District Court's injunction that probate judges are enjoined regardless of any opinion or injunction issued by the Alabama Supreme
21

Court, Chief Justice Moore testified, "That's not the United States Supreme Court. That is a federal district judge in the Southern District of Alabama." (R. 46.)
43. By issuing the Administrative Order of January 6, 2016, Judge Moore attempted to directly interfere or gave the appearance of attempting to interfere with the United States District Court in the Southern District of Alabama in the exercise of its jurisdiction under federal law. 5
44. In issuing his Administrative Order of January 6, 2016, Chief Justice Moore demonstrated an unwillingness to apply the law.
45. Chief Justice Moore's order of January 6, 2016, was contrary to clear and determined law about which there is no confusion or unsettled question.
46. By issuing his unilateral order of January 6, 2016, Chief Justice Moore flagrantly disregarded a fundamental constitutional right guaranteed in all states, as declared by the United States Court in Obergefell.
5 28 U.S.C § 1331 (federal-question jurisdiction) and22 U.S.C. § 2283 (authority to stay a state court proceeding in aid of its jurisdiction).
22

47. In his Administrative Order of January 6, 2016, Chief Justice Moore completely and flagrantly ignored, i.e., failed to even mention, the existence of the Alabama federal lawsuits Searcy and Strawser, as though no injunction had been issued ordering the probate judges not to follow any conflicting orders of the Alabama Supreme Court.
48. Nor did Chief Justice Moore mention, in his January 6, 2016 Administrative Order, that the United States Court of Appeals for the Eleventh Circuit had declared that the order in API had been "abrogated" by Obergefell.
49. Chief Justice Moore flagrantly disregarded and abused his authority as the chief administrative officer of Alabama's judicial branch by issuing the Administrative Order of January 6, 2016, and attempting to directly interfere or giving the appearance of attempting to interfere with the Alabama Supreme Court's consideration of the pending issues in API.
50. By issuing the Administrative Order of January 6, 2016, Chief Justice Moore flagrantly disregarded and abused his authority as the chief administrative officer of
23

Alabama's judicial branch, by addressing in an administrative order, substantive legal issues which are within the exclusive province of the Court to adjudicate. See Alabama Code 1975 § 12-2-30.
51. In issuing his Administrative Order of January 6, 2016, Chief Justice Moore flagrantly exceeded his authority as the chief administrative officer of Alabama's judicial branch by using his administrative authority to speak for the entire court on matters briefed and pending before the Court. While he stated in his order that he could not address the issue pending before the Court in API, i.e., the effect of Obergefell on the existing orders of the Alabama Supreme Court in API, he proceeded to do just that.
52. In issuing his Administrative Order of January 6, 2016, Chief Justice Moore flagrantly disregarded and abused his authority as the chief administrative officer of Alabama's judicial branch in substituting his individual opinion for that of the Court in the Administrative Order of January 6, 2016.
53. By unilaterally issuing his Administrative Order of January 6, 2016, Chief Justice Moore willfully failed to respect the orderly legal procedures available to the
24

parties-procedures designed to protect the due process rights of the parties and the integrity and independence of the courts-to ask the courts, including the federal district court, to determine or resolve any issues about which a conflict or confusion existed, and he further willfully failed to respect the authority of those courts to decide those matters.
54. By issuing his unilateral order of January 6, 2016, Chief Justice Moore flagrantly disregarded the fundamental right of the parties in API to be heard on the matter.
55. By issuing his order of January 6, 2016, Chief Justice Moore abandoned his role as a neutral and detached chief administrator of the judicial system.
56. By issuing his order of January 6, 2016, and his comments therein, Chief Justice Moore disqualified himself from any further participation in API, yet chose to participate in the decision of the Court in ultimately dismissing that case. Notwithstanding that he should have disqualified himself from the case because of his prior actions, he filed a lengthy concurrence.
25

57. Chief Justice Moore's stated reason for issuing his administrative order of January 6, 2016, was because there was confusion and uncertainty among the probate judges who issue marriage licenses as to which conflicting order to obey.
II. Charges
58. All of the following charges are based on the totality of the facts and circumstances, separately and severally, alleged in this complaint.
Charge One 59. By willfully issuing his Administrative Order of January 6, 2016, in which he directed or appeared to direct all Alabama probate judges to follow Alabama's marriage laws, completely disregarding a federal court injunction when he knew or should have known every Alabama probate judge was enjoined from using the Alabama marriage laws or any Alabama Supreme Court order to deny marriage licenses to same-sex couples, Chief Justice Roy S. Moore violated the following Alabama Canons of Judicial Ethics in that he, separately and severally:
26

a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
b. Failed to participate in establishing, maintaining, and enforcing and to himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
g. Failed to perform the duties of his office impartially, Canon 3.
Charge Two 60. In demonstrating his unwillingness in his Administrative Order of January 6, 2016, to follow clear law, Chief Justice Roy S. Moore violated the following Alabama Canons of Judicial Ethics in that he, separately and severally:
a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
27

b. Failed to participate in establishing, maintaining, and enforcing and to himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
h. Failed to perform the duties of his office impartially, Canon 3.
Charge Three
61. In issuing his Administrative Order of January 6,
2016, and in abusing his administrative authority by
addressing and/or deciding substantive legal issues while
acting in his administrative capacity, Chief Justice Roy S.
Moore violated the following Alabama Canons of Judicial
Ethics in that he, separately and severally,
a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
b. Failed to participate in establishing, maintaining, and enforcing and to himself observe high standards
28

of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
g. Failed to perform the duties of his office impartially, Canon 3.
Charge Four
62. In issuing his Administrative Order of January 6, 2016, and thereby substituting his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that Court, i.e., the effect of the decision of the United States Supreme Court in Obergefell, Chief Justice Roy S. Moore violated the following Alabama Canons of Judicial Ethics in that he, separately and severally:
a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
29

b. Failed to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B;
g. Failed to perform the duties of his office impartially, Canon 3; and/or
h. Failed to abstain from public comment about a pending proceeding in his own court, Canon 3A(6).
Charge Five
63. By issuing his Administrative Order of January 6, 2016, and willfully abusing his administrative authority to issue the Administrative Order of January 6, 2016, Chief Justice Roy S. Moore interfered with legal process and remedies in the United States District Court and/or the Alabama Supreme Court available through those courts to address the status of any proceeding to which Alabama's
30

probate judges were parties. In so doing, Chief Justice Moore, separately and severally, violated the following Alabama Canons of Judicial Ethics:
a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
b. Failed to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
g. Failed to perform the duties of his office impartially, Canon 3.
Charge Six
64. By taking legal positions in his Administrative Order of January 6, 2016, on a matter pending before the Alabama Supreme Court in API, Chief Justice Roy S. Moore placed his impartiality into question on those issues, thus disqualifying himself from further proceedings in that
31

case; yet he participated in further proceedings in API, after having disqualified himself by his actions, in violation of the following Alabama Canons of Judicial Ethics, separately and severally:
a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
b. Failed to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
d. Failed to respect and comply with the law, Canon 2A;
e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
g. Failed to perform the duties of his office impartially and diligently, Canon. 3.
DONE this 6th day of May, 2016. THE ALABAMA JUDICIAL INQUIRY COMMISSION
Chairman BY ORDER OF THE COMMISSION
32

DOCUMENTS ATTACHED Attached to this Complaint and incorporated as a part hereof are true and correct copies of the following documents:
A. Administrative Order of January 6, 2016
B. In the Matter of Roy S. Moore, Chief Justice of Alabama, COJ #33 (Nov. 13, 2003)
C. Moore v. Judicial Inquiry Commission, 891 So. 2d 848 (Ala. 2004)
D. Searcy v. Strange, 81 F. Supp. 3d 1285 (S.D. Ala. 2015)
E. Strawser v. Strange, (Unpublished Order, Jan. 26, 2015)
F. January 27, 2015 Letter from Chief Justice Moore to Governor Robert Bentley
G. Searcy v. Strange, (Unpublished Order, Jan. 28, 2015)
H. February 3, 2015 Letter from Chief Justice Moore to All Probate Judges of Alabama, with a Memorandum from Chief Justice Moore on "Sanctity of Marriage ruling"
I. Administrative Order of February 8, 2015
J. Strawser v. Strange, 44 F. Supp. 3d 1206 (S.D. Ala. 2015)
33

K. Ex parte State ex rel. Alabama Policy Institute,

[Ms. 1140460, March 3, 2015]

So. 3d

(Ala.

2015)

L. Strawser v. Strange, 307 F.R.D. 604 (S.D. Ala. 2015)

M. Strawser v. Strange, 105 F. Supp. 3d 1323 (S.D. Ala. 2015)

N. Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

0. Strawser v. Strange, (Unpublished Order, July 1, 2015)

P. Strawser v. State, (No. 15-12508-CC, Oct. 20, 2015 (11th Cir. 2015)

Q. Ex parte State ex rel. Alabama Policy Institute,

[Ms. 1140460, March 4, 2016]

So. 3d

(Ala.

2016)

34

EXHIBIT
I A

0

ADMINISTRATIVE ORDER OF THE

CHIEF JUSTICE OF THE .ALABAMA SUPREME COURT

WHEREAS, IN CONSIDERATION OF THE FOLLOWING:

On March 3, 2015 the Alabama Supreme Court issued a

lengthy opinion upholding the constitutionality of Article I,

Section 36.03(b), Ala. Const. 1901 ("the Sanctity of Marriage

Amendment"), and Section 30-1-19 (b), Ala. Code 1975 ("the

Marriage Protection Act"), which both state: "Marriage is

inherently a unique relationship between a man and a woman."

Ex parte State ex rel. Alabama Policy Institute, [Ms. 1140460,

March 3, 2015]

So. 3d

(Ala 2015) (hereinafter "API").

The API opinion relied on earlier opinions of the United States Supreme Court and the Alabama Supreme Court for authority. In 1885 the Supreme Court of the United States described marriage as "the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Murphy v. Ramsey, 114 U.S. 15, 45. The Alabama Supreme Court
similarly stated that"' (T]he relation of marriage i$ founded
on the will of God, ~nd the nature of man; and it is the foundation of all mora~ improvement, and all true happiness.'" Goodrich v. Goodrich, 44 Ala. 670, 675 (1870).

In its March 3 order in API, the Alabama Supreme Court stated that "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to (the Sanctity of Marriage Amendment or the Marriage Protection Act] . Nothing in the United States Constitution alters or overrides this duty."

A week later the Court reaffirmed that its March 3 order bound every Alabama probate judge "to the end of achieving order and uniformity in the application of Alabama's marriage laws." API (Order of March 10, 2015). The Court also stated that "all probate judges in this State may issue marriage licenses only in accordance with Alabama law as described in our opinion of March 3, 2015." API (Order of March 12, 2015).

On June 26, 2015, approximately three months after the

Alabama Supreme Court issued its orders in API, the United

(j

States Supreme Court in Obergefell v Hodges, 135 S. Ct. 2584 (2015), held unconstitutional certain marriage laws in the

c

states of Michigan, Kentucky, Ohio, and Tennessee, which fall

within the jurisdiction of the Sixth Circuit Court of Appeals.

In its 5-4 opinion the high court noted that "[t]hese cases

come from Michigan, Kentucky, Ohio, and Tennessee."

Obergefell, 135 S. Ct. at 2593.

On June 29, 2015, three' days after the issuance of the Obergefell opinion, the Alabama Supreme Court invited the parties in API to address the "effect of the Supreme Court's
decision on this Court's existing orders in this case no later than 5:00p.m. on Monday, July 6." API (Order of June 29, 2015) (emphasis added) .

Several parties filed briefs in response to that request. Additionally, on Sept 16, 2015, Washington County Probate Judge Nick· Williams filed an "Emergency Petition for Declaratory Judgement and/or Protective Order in Light of Jailing of Kentucky Clerk Kim Davis," which requested the Court "to prevent the imprisonment and ruin of their State's probate judges who maintain fidelity to their oath of office and their faith." On September 22, Elmore County Probate Judge John E.nslen joined Judge Williams's Emergency Petition. On October 5, Judge Enslen filed a separate petition for a declaratory judgment arguing additional grounds for relief.

In October, Eunie Smith, President of the Eagle Forum of Alabama and Dr. John Killian, Sr., former President of the Alabama Baptist State Convention, published a guest opinion on AL.com stating that they "anxiously await" the pending decision on the effect of Obergefell on the orders in API. In December, the Southeast Law Institute of Birmingham, whose President is local counsel for some of the parties in API, stated in an online commentary that he was "encouraging all of those who have great concern over this issue to be prayerfully patient" as the Court deliberates.

Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the "existing orders" in API. Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.
( 2

(

I am not at liberty to provide any guidanc~ to Alabama

probate judges on the effect of Obergefell on the existing

orders of the Alabama Supreme Court. That issue remains before

the entire Court which continues to deliberate on the matter.

Nevertheless, recent developments of potential relevance

since Obergefell may impact this issue. The United States

Court of Appeals for the Eighth Circuit recently ruled that

Obergefell did not directly invalidate the marriage laws of

states under its jurisdiction. While applying Obergefell as

precedent, the Eighth Circuit rejected the Nebraska

defendants' suggestion that Obergefell mooted the case. The

Eighth Circuit stated: "The [Obergefell] Court invalidated

laws in Michigan, Kentucky, Ohio, and Tennessee

not

Nebraska." Waters v Ricketts, 798 F.3d 682, 685 (8th Cir.

2015) (emphasis added). In two other cases the Eighth Circuit

repeated its statement that Obergefell directly invalidated

only the laws of the four states in the Sixth Circuit. See

Jernigan v Crane, 796 F. 3d 976, 979 (8th Cir. 2015) ("not

Arkansas"); Rosenbrahn v Daugaard, 799 F. 3d 918, 922 (8th Cir

2015) ("not South Dakota").

The United States District Court for the District of Kansas was even more explicit: "While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses .... " Marie v Mosier, 201~ WL 4724389 (D. Kan. August 1,0, 2015). Rejecting the Kansas defendants' claim that Obergefell mooted the case, the District Court stated that "Obergefell did not rule on the Kansas plaintiffs' claims." Id.

The above cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court. "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762 (1989). "[N]o court can make a decree which will bind anyone but a party ... no matter how broadly it words its decree." Alemite Mfg. Corp. v Staff, 42 F.3d 832, 832 (2d Cir. 1930). See also Rule 65, Fed R. Civ. P., on the scope of an injunction.

Whether or not the Alabama Supreme Court will apply the

0

3

0

reasoning of the United States Court of Appeals for the Eighth

Circuit, the United States District Court for the District of

Kansas, or some other legal analysis is yet to be determined.

Yet the fact remains that the administration of justice in the

State of Alabama has been adversely affected by the apparent

conflict between the decision of the Alabama Supreme Court in

API and the decision of the United States Supreme Court in

Obergefell.

NOW THEREFORE,

As Administrative Head of the Unified Judicial System of Alabama, authorized and empowered pursuant to Section 12-2-30 (b) (7), Ala. Code 1975, to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state," and under Section 12-2-30 (b) (8), Ala. Code 19 75, to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere";
And in ~hat "an order issued by a court with jurisdiction over the su,bj ect matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings~" United States v. Mine Workers, 330 U.S. 258, 293
(1947) (quoted in Fields v. City of Fairfield, f43 So. 2d 177,
180 (Ala . 1 962 ) ) ;

IT IS ORDERED AND DIRECTED THAT:

Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in
full force and effect.

DONE January 6, 2016.

Roy S. Moore

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Chief Justice

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EXHIBIT

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COURT OF THE JUDICIARY CASE NO. 33

IN THE MATTER OF: ROY S . MOORE CHIEF JUSTICE
OF THE SUPREME COURT OF ALABAMA

FINAL JUDGMENT At the /outset, this court emphasizes that this is a case

concerning only possible violations of the Canons of Judicial Ethics. It is not a case about the public display of the Ten

Commandments in the State Judicial Building nor the

acknowledgment of God.

Indeed, we recognize that the

acknowledgment of God is very much a vital part of the public

and private fabric of our country. Moreover, this is not a

case to review the judgment of Judge Myron Thompson nor the

actions of the United States Court of Appeals for the Eleventh

Circuit or the United States Supreme Court. This court does

not have the authority or jurisdiction to reexamine those

issues. The Court of the Judiciary is a nine-member
constitutionally-created judicial body that is only "convened

to hear complaints filed by the Judicial Inquiry Commission"

pertaining to alleged violations by judges of the Canons of

Judicial Ethics as adopted by the Supreme Court of Alabama.

The Canons are not merely guidelines for proper judicial

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conduct; they are binding on all judges by the oath taken upon

assuming office, _and violations of the Canons can serve as the

basis for disciplinary action. The charge or charges against

a judge must be proved by clear and convincing evidence before

any discipline may be imposed.

On Jan~ary 15, 2001, Roy S. Moore took office as

Alabama's Chief Justice. On August 1, 2001, Chief Justice

Moore had a monument displaying the Ten Commandments and other

historic and religious quotations installed in the rotunda of

the State Judicial Building.

After that monument was

installed, two civil actions, Glassroth v. Moore, Case No. CV-

01-T-1268-N, and Maddox and Howard v. Moore, Case No. CV-01-T-

1269-N, were filed in the United States District Court for the

Middle District of Alabama. These actions, brought against

Chief Justice Moore in his official capacity, claimed that the

monument violated the Establishment Clause of the First

Amendment to the United States Constitution and sought its

removal. Following a hearing on November 18, 2002, the

district court determined that the monument violated the First

Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala.

2002), and on December 19, 2002, it entered a permanent

injunction directing Chief Justice Moore to remove the
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monument from the Alabama Judicial Building, Glass roth v. Moore, 242 F. Supp. 2d 1067 (M.D. Ala. 2002). That injunction was stayed by the district court pending Chief Justice Moore's appeal to the United States Court of Appeals for the Eleventh Circuit. Glassroth v. Moore, 242 F. Supp. 2d 1068 (M.D. Ala. 2002). The/Court of Appeals affirmed the judgment of the district court on July 1, 2003. Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003).
Subsequent to the decision of the Court of Appeals, on August 5, 2003, the district court entered its "Final Judgment and Injunction." Glassroth v. Moore, 275 F. Supp. 2d 1347 (M.D. Ala. 2003). The district court ordered that its previous stay be dissolved and enjoined Chief Justice Moore to remove the monument by no later than August 20, 2003. The district court stated that it could "levy substantial fines against Chief Justice Moore in his official capacity and, thus, against the State of Alabama itself, until the monument [was] removed." 275 F. Supp. 2d at 1349. Chief Justice Moore stated publicly that he would not remove the monument as directed by the district court. On August 21, 2003, the monument remained in the rotunda of the State Judicial Building, and on that date the eight associate justices of the

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Alabama Supreme Court ordered that the monument be removed.

On August 22, 2003, the Judicial Inquiry Commission

(hereinafter referred to as "the JIC") filed a complaint with

this court against Chief Justice Moore. In the six-charge

complaint, the JIC alleged that Chief Justice Moore had

comrni tted siK violations of the Canons of Judicial Ethics when

he willfully failed to comply with a binding and existing

court order of the United States District Court for the Middle

District of Alabama. The JIC alleged that Chief Justice Moore

violated the Canons of Judicial Ethics in (1) failing to

uphold the integrity and independence of the judiciary; {2)

failing to observe high standards of conduct so that the

integrity and independence of the judiciary might be

preserved; (3) failing to avoid impropriety and the appearance

of impropriety; ( 4) failing to respect and comply with the

law; (5) failing to conduct himself in a manner promoting

public confidence in the integrity and impartiality of the

judiciary; and (6) failing to avoid conduct prejudicial to the

administration of justice so as to bring the judicial office

into disrepute, and the case was thereby presented to the

Court of the Judiciary. On October 2, 2003, Chief Justice

Moore filed an answer to the complaint filed by the JIC,

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denying the allegations. Among other things, Chief Justice Moore argued that the complaint was premature because he had not been held in contempt of the district court's order, that the district court's order was unlawful, and that to follow the order would violate his oath of office.
On Nov~rnber 12, 2003, the case was called for trial before the Court of the Judiciary. At the hearing on that date, Chief Justice Moore was the only witness, although numerous exhibits were adrni tted by stipulation of the parties. Justice Moore testified regarding his belief that compliance with the federal court injunction would violate his oath of office. He was shown JIC Exhibit 18, admitted by stipulation, which was the transcript of his testimony before the JIC on August 22, 2003, which he read over carefully before testifying about it. This transcript includes the following testimony before the JIC:
"I did what I did because I upheld my oath. And that's what I did, so I have no apologies for it. I would do it again. I didn't say I would defy the court order. I said I wouldn't move the monument. And I didn't move the monument, which you can take that as you will." At the time he made this statement before the JIC, all efforts by Chief Justice Moore an6 his attorneys to prevent the federal court injunction from becoming legally and
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ethically binding and obligatory had been exhausted in the federal district court, the Eleventh Circuit Court of Appeals, and the United States Supreme Court. Moore was asked on November 12, 2003, during the trial if he still stood by this statement, and he testified under oath that he stood by this statement w,ithout any .changes. When he so testified on November 12, 2003, the United States Supreme Court had, at that time, also denied his petition for certiorari on November 3, 2003.
Chief Justice Moore contends that the disciplinary proceedings against him are improper because they were instituted in the absence of any finding of contempt by the federal district court that entered the judgment barring him from displaying the Ten Commandments monument in the rotunda of the State Judicial Building. We disagree. The motion to hold Chief Justice Moore in contempt was filed in the federal district court on August 21, 2003, but the other eight justices of the Alabama Supreme Court ordered the removal of the monument on that same date, thereby rendering the motion moot. As the Supreme Court of Connecticut has said:
"Whether a judge's conduct compromises the integrity of the court or lessens public confidence in the judicial system cannot turn on whether contempt can lie. By accepting his office, a judge undertakes to
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conduct himself in both his official and personal behavior in accordance with the highest standard that society can expect. That standard cannot be gauged by whether the conduct is punishable by contempt."
In re Dean, 246 Conn. 183, 196, 717 A.2d 176, 183 (1998) (emphasis added; citations and quotation marks omitted).
Chief ·gustice Moore also claims that the district court order was in conflict with the Alabama Constitution, relying primarily upon the preamble to the Alabama Constitution of 1901:
"We, the people of the State of Alabama, in order to establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama."
The general rule is that courts interpret preambles as statements of general purpose and intent and not as sources of authority for the government. Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). Further, the oath taken by Chief Justice Moore commands him to support both the United States and Alabama Constitutions. In the event of conflict between the constitutions of Alabama and the United States, the Constitution of the United States must prevail. The Supremacy Clause of the United States Constitution provides that "[t]his

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Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." U.S. Const., art. VI.
Chief ~ustice Moore further contends that the JIC complaint was premature because, he says, he had not exhausted all avenues of possible review in that the United States Supreme Court had not issued its order denying certiorari review of Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003). However, the court notes that the federal district court that entered the judgment against Chief Justice Moore clearly stated that "upon receipt of an appellate mandate affirming this court's decision and injunction, the court will immediately lift the stay and enter another injunction, along the lines of the December 19[, 2002,] injunction, requiring the removal of the Ten Commandments monument within fifteen days." Glassroth v. Moore, 242 F. Supp. 2d 1068, 1070 (M.D. Ala. 2002). Further, the possibility that the United States Supreme Court would grant certiorari to review the Eleventh Circuit's judgment affirming the judgment of the district court did not affect the binding nature of the district

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court's and appellate court's judgments. It is well settled that "neither the right to petition for a writ of certiorari nor the actual filing of such a petition stays the enforcement of the underlying judgment." Peabody Coal Co. v. Navajo County, 117 Ariz. 335, 338, 572 P.2d 797, 800 (1977).
Chief 'J-pstice Moore did not have the legal authority to decide whether the federal court order issued to him in his official capacity as the State's highest judicial officer should be obeyed; rather, he was constitutionally mandated to obey it. "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it." Cooper v. Aaron, 358 U.S. 1, 19 (1958).
Any person who undertakes a solemn oath to carry out a public trust must act in a manner that demonstrates both respect for and compliance with established rules of law of the institution that person serves. Here, however, we are faced with a situation in which the highest judicial officer of this state has decided to defy a court order. The Supreme Court of the United States has said:
"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are
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creatures of the law and are bound to obey it." United States v. Lee, 106 U.S. 196, 220 (1882). The Supreme Judicial Court of Maine, in a judicial-disciplinary case, said that "(1] awless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge b~comes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence." In re Ross, 428 A.2d 858, 861 (Me. 1981). To that same effect is the observation of the Supreme Court of New Mexico that "judges who, as self-perceived defenders of justice, set themselves above the law, to promote a personal belief about what the law should be, do a disservice to justice." In re Eastburn, 121 N.M. 531, 538, 914 P.2d 1028, 1035 (1996).
We respect and hold in high regard the right of every American citizen to express his or her views. However, when an individual, especially a judge, undertakes a position of civil authority, that person must conform his or her conduct in the exercise of public duties according to the established rule~ of law and accepted rules of ethics. If a judge, or any other person, disagrees with a determination by a governmental body, that person has every right to seek legal redress. When
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one exhausts all legal remedies, one must refrain from conduct adversely affecting the impartial and objective carrying out of one's official duties. Chief Justice Moore sought legal redress by appealing to the limit of judicial review; he was bound by, and had the duty to follow, the rulings of the federal cou:yts.

As was stated by the Alabama Supreme Court in its Order No. 03-01, "the justices of this Court are bound by solemn oath to follow the law, whether they agree or disagree with it, because all the officers of the government, from the highest to the lowest are creatures of the law, and are bound to obey it." It is therefore the unanimous decision of this court that Chief Justice Moore has violated the Alabama Canons of Judicial Ethics as alleged by the JIC in its complaint.

Section 6. 18 of the Judicial Article of the Alabama Constitution of 1901, as amended by Amendment No. 581, provides that this court shall have the authority, after a public hearing, to remove from office, to suspend without pay, or to censure a judge or to apply such other sanction as may be prescribed by law for violation of a Canon of Judicial Ethics, misconduct in office, or failure to perform his or her

duties. This court has considered all possible sanctions to

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determine an appropriate disposition in this case. While this

court respects Chief Justice Moore's right to his personal

opinion on the underlying issues presented in the federal

court litigation, the fact remains that Chief Justice Moore is

the chief judicial officer of this State and is held to a

higher stanqard than a member of the general public.

This court has found that Chief Justice Moore not only

willfully and publicly defied the orders of a United States

district court, but upon direct questioning by the court he

also gave the court no assurances that he would follow that

order or any similar order in the future. In fact, he

affirmed his earlie-r statements in which he said he would do

the same. Under these circumstances, there is no penalty

short of removal from office that would resolve this issue.

Anything short of removal would only serve to set up another

confrontation that would ultimately bring us back to where we

are today. This court unanimously concludes that Chief

Justice Moore should be removed from the office of Chief

Justice.

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It is therefore ORDERED and ADJUDGED by the court that Roy S. Moore be, and he hereby is, removed from the office of Chief Justice of the Supreme Court of Alabama.
DATED: II- 13- o3
\0~~~
WILLIAM c . TROMPS

udge
J~ 1.7/mi.
Judge

Ju e
~71~ ~MCINNTB
Judge

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- - - - - - - - - - -I Moore v. Judicial Inquiry Com'n of State of Ala., 891 So.2d 848 (2004)

EXHIBIT
c

891 So.2d 848 Supreme Court of Alabama.
RoyS.MOORE v.
JUDICIAL INQUIRY COMMISSION
of the STATE OF ALABAMA.
1030398.
I
April 30, 2004.
Synopsis Background: The Judicial Inquiry Commission filed a formal complaint against the Chief Justice of the Alabama Supreme Court in the Court of the Judiciary charging him with violating the Alabama Canons of Judicial Ethics. The Court of the Judiciary, No. 33, found that the Chief Justice had violated the Canons of Judicial Ethics as charged in the complaint, and removed him from office. The Chief Justice appealed.
Holdings: The special Supreme Court, appointed by the Governor ofAlabama, held that:

~Evidence
Judges
e... Reference and Review
The applicable standard of review for an order from the Court of the Judiciary is that the evidence must be clear and convincing; that is, orders of the Court of the Judiciary are entitled to a presumption of correctness if the charge is supported by clear and convincing evidence.
Cases that cite this headnote
[2] Judges 4= Reference and Review
Factual findings of the Court of the Judiciary based on ore tenus evidence are presumed correct, and the Court ofthe Judiciary's judgment based on those findings will not be disturbed unless the appellate court, after considering all the evidence and all reasonable inferences that can be drawn therefrom, concludes that the judgment is plainly and palpably wrong, manifestly unjust, or without supporting evidence.
Cases that cite this headnote

[I] correctness of a federal court's ruling is not reviewable by the Court of the Judiciary;
[2] Court of the Judiciary neither applied an improper "religious test" in analyzing the issues before it, nor violated Chief Justice's constitutional rights to hold his religious beliefs, when it removed Chief Justice from office; and
[3] Chief Justice's violations of Alabama Canons of Judicial Ethics warranted his removal from office.

[3] Appeal and Error 'IF Findings of Court or Referee
In the absence of specific factual findings, the Supreme Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance ofthe evidence.
Cases that cite this headnote

Affirmed. Harry J. Wilters, Jr., Special Justice, concurred specially and filed opinion.
West Headnotes (9) [1) Judges

[4] Judges
e- Reference and Review
In reviewing an appeal from a judgment of the Court of the Judiciary finding a judge guilty of the charges against him or her, the Supreme Court must consider the evidence in the light most favorable to the Judicial Inquiry Commission, the prevailing party.

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Moore v. Judicial Inquiry Com'n of State of Ala., 891 So.2d 848 (2004)

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Cases that cite this headnote

God, but rather, it was about a public official who refused to obey a valid order of a United States District Court. U.S.C.A. Const.Amend. 1; Const.

(5) Judges

Art. 1, § 3.

~ Proceedings and Review Correctness of a federal court's ruling is not

2 Cases that cite this headnote

reviewable by the Court of the Judiciary, as only a superior federal court can review the merits of a ruling by a federal court.

[9] Judges i= Grounds and Sanctions

Cases that cite this headnote

Alabama Supreme Court Chief Justice's violations of the Alabama Canons of Judicial

Ethics, by willfully refusing to obey a lawful and

[6] Judges IF Proceedings and Review
Court of the Judiciary is a trial court whose jurisdiction is limited to the trial of complaints filed by the Judicial Inquiry Commission charging a judge or justice with violating one or

binding order of a United States District Court requiring him to remove monument engraved with the Ten Commandments which he had placed in the Alabama State Judicial Building, warranted his removal from office. Canons of Jud .Ethics, Canons 1, 2, subds. A, B.

more of the Canons of Judicial Ethics.

1 Cases that cite this headnote

1 Cases that cite this headnote

[7] Judges f?> Proceedings and Review Court ofthe Judiciary does not have the authority
to correct or control the judgments of federal courts, and the general rule is that state and federal courts will not interfere with or try to restrain each other's proceedings.
Cases that cite this headnote

Attorneys and Law Firms
*850 Andrew D. Dill, Foundation for Moral Law, Inc., Montgomery; and Phillip L. Jauregui, Birmingham, for appellant.
William H. Pryor, Jr., atty. gen.; Rosa H. Davis, chief asst. atty. gen.; and Charles B. Campbell and Melissa K. Atwood, asst. attys. gen., for appellee.

[8] Constitutional Law f?> Ten Commandments
Judges .P Grounds and Sanctions
Court of the Judiciary neither applied an improper "religious test" in analyzing the issues before it, nor violated Alabama Supreme Court Chief Justice's constitutional rights to hold his religious beliefs, when it removed Chief Justice from office for refusing to obey a valid order of a United States District Court requiring him to remove monument engraved with the Ten Commandments which he had placed in the Alabama State Judicial Building; case was not about a public official's right to acknowledge

PER CURIAM. 1
Facts
The material facts are not disputed. Roy S. Moore was elected to the office of Chief Justice ofthe Alabama Supreme Court in a statewide general election in November 2000. On January 15, 2001, Moore was sworn in as Alabama's 28th Chief Justice. Pursuant to the Judicial Article adopted in 1973 by constitutional Amendment No. 328 to the Alabama Constitution of 1901, Chief Justice Moore also became the administrative head of Alabama's Unified Judicial System ("The chief justice of the supreme court shall be the administrative head ofthe judicial system." Ala. Const.190 1, Amend. No. 328, § 6.10).

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Moore v. Judlclallnqulry Com'n of State of Ala., 891 So.2d 848 (2004)

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After being elected Chief Justice, Moore designed and commissioned the construction of a granite monument that would, in Chief Justice Moore's words, "depict the moral foundation of law." Without notifying the eight Associate Justices of the Supreme Court, Chief Justice Moore installed the monument in the rotunda of the Judicial Building in Montgomery. The Judicial Building houses the Alabama Supreme Court, the Alabama Court of Criminal Appeals, the Alabama Court ofCivil Appeals, the Alabama Administrative Office of Courts, and the State Law Library. The monument was installed during the night of July 31, 200 I. 2
*851 The monument was positioned in the rotunda of the Judicial Building so that it could be seen by every person entering the Judicial Building through the main entrance and by everyone who crossed the rotunda going to or from the State Law Library, the offices of the clerks of the intermediate appellate courts, and the public stairway, elevator, and restrooms. The monument was aptly described in the opinion of the federal district court in Glassroth v. Moore, 229 F.Supp.2d 1290, 1294-95 (M.D.Ala.2002):
"The monument is in the shape of a cube, approximately three feet wide by three feet deep by four feet tall. The top ofthe monument is carved as two tablets with rounded tops, the common depiction of the Ten Commandments; these tablets slope toward a person viewing the monument from the front. The tablets are engraved with the Ten Commandments as excerpted from the Book of Exodus in the King James Bible. Due to the slope ofthe monument's top and the religious appearance of the tablets, the tablets call to mind an open Bible resting on a lectern....
"Engraved on the left tablet is: 'I am the Lord thy God'; 'Thou shalt have no other Gods before me'; 'Thou shalt not make unto thee any graven image'; 'Thou shalt not take the name of the Lord thy God in vain'; and 'Remember the sabbath day, to keep it holy.' Engraved on the right tablet is: 'Honour thy father and thy mother'; 'Thou shalt not kill'; 'Thou shalt not commit adultery'; 'Thou shalt not steal'; 'Thou shalt not bear false witness'; and 'Thou shalt not covet.' In addition, the four sides ofthe monument are engraved with fourteen quotations from various secular sources; these sources are identified on the monument to the extent that each quotation is accompanied by the name of a document or an individual. On each side of the monument, one of the quotations is larger than the others and is set apart in relief. The smaller quotations on each side are intended to relate to that larger quotation. The north (front) side of the monument has a large

quotation from the Declaration of Independence, 'Laws of nature and of nature's God,' and smaller quotations from George Mason, James Madison, and William Blackstone that speak of the relationship between nature's laws and God's laws. The large quotation on the west (right) side of the monument is the National Motto, 'In God We Trust'; the smaller quotations on that side were excerpted from the Preamble to the Alabama Constitution and the fourth verse of the National Anthem. The south (back) side of the monument bears a large quotation from the Judiciary Act of 1789, 'So help me God,' and smaller quotations from George Washington and John Jay speaking of oaths and justice. The east (left) side of the monument has a large quotation from the Pledge of Allegiance 1954, 'One nation under God, indivisible, with liberty and justice for all,' and smaller quotations from the legislative history of the Pledge, James Wilson, and Thomas Jefferson suggesting that both liberty and morality are based on God's authority ... .
" ... The court is impressed that the monument and its immediate surroundings are, in essence, a consecrated place, a religious sanctuary, within the walls of a courthouse."
*852 When he · unveiled the monument, Chief Justice Moore delivered prepared remarks, copies of which were made available to those present at the unveiling. Chief Justice Moore stated that the monument depicted the moral foundation of the law and that it "serves to remind the appellate courts and judges ofthe circuit and district courts of this State and members ofthe bar who appear before them, as well as the people ofAlabama who visit the Alabama Judicial Building, of the truth stated in the Preamble to the Alabama Constitution that in order to establish justice we must invoke 'the favor and guidance of almighty God.' "
The Litigation
Shortly after the monument was installed, two actions were filed in the United States District Court for the Middle District of Alabama, seeking injunctions requiring Chief Justice Moore to remove the monument from the Judicial Building. These actions were consolidated for trial. Glassroth v. Moore, 229 F.Supp.2d at 1293 . Following a trial that lasted several days, United States District Judge Myron Thompson issued an opinion on November 18, 2002, holding that by placing the monument in the rotunda of the Judicial Building,

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Moore v. Judicial Inquiry Com'n of State of Ala., 891 So.2d 848 (2004)

Chief Justice Moore had violated the Establishment Clause

1291 (1994 & Supp.2003). The ChiefJustice should not be

(

of the Constitution of the United States. Judge Thompson

able to circumvent, or avoid, the Eleventh Circuit and keep

ordered Chief Justice Moore to remove the monument within

that appellate court out of the orderly appellate process.

30 days ofthe date of his opinion. The district court did not

issue an injunction at the time it issued its opinion, but it stated

"

that if the monument was not removed within 30 days, it would enter an injunction requiring the monument's removal within 15 days of the entry of the injunction. Chief Justice Moore appealed Judge Thompson's ruling to the United States

" ... The Chief Justice argues that granting the writ will 'aid [the United States Supreme] Court to conduct an orderly and timely review of [his] petition for writ of certiorari.' ...

Court of Appeals for the Eleventh Circuit.

"This argument is completely meritless. Aside from the

Chief Justice Moore refused to remove the monument within the 30 days allowed by the November 18 order, and the district court, on December 19, 2002, issued a permanent injunction requiring Chief Justice Moore to remove the monument within 15 days (i.e., by January 3, 2003). Glassroth v. Moore, 242 F.Supp.2d 1067 (M.D.Ala.2002). Chief Justice Moore petitioned the district court for a stay of the injunction pending the disposition of his appeal to

fact, as stated above, that the ChiefJustice can simply seek relief in the Eleventh Circuit from this court's August 5 final judgment and injunction, this court, not once, but twice, invited the Chief Justice to invoke the orderly and established process under the federal rules for a stay of injunction pending a petition to the United States Supreme Court for a writ of certiorari-invitations which the Chief Justice declined."

the Eleventh Circuit Court of Appeals. The district court granted the stay. Glassroth v. Moore, 242 F.Supp.2d 1068 (M.D.Ala.2002). On July I, 2003, the Court of~ppeals for the Eleventh Circuit affirmed the judgment of the district court. Glassroth v. Moore, 335 F.3d 1282 (lith Cir.2003).

On August 15, 2003, Chief Justice Moore filed with the Eleventh Circuit Court of Appeals a motion to recall the mandate and a motion to stay the injunction. That motion was denied on August 19. On August 20, 2003, Chief Justice Moore filed with the United States Supreme Court an

Chief Justice Moore did not seek a stay of the judgment of the Eleventh Circuit Court of Appeals and did not ask for

application for recall and stay. The Supreme Court denied the application that same day.

a rehearing of that decision. On July 30, 2003, the court of appeals issued its mandate directing the district court to enforce its order to remove the monument. Pursuant to the mandate, the district court issued a mandatory injunction on August 5, 2003, requiring that the monument be removed no later than August 20, 2003. In response to this order, Chief Justice Moore issued a public statement on August 14, 2003, in which he said he had "no intention of removing the monument."

When the monument was not removed by the August 20, 2003, deadline as ordered by the district court, some of the original plaintiffs filed a motion in the district court asking that court to hold Chief Justice Moore in contempt for refusing to obey the mandatory order of August 5. Before the district court ruled on the motion, the eight Associate Justices ofthe Alabama Supreme Court, exercising the power to overrule an administrative order of the Chief Justice given them by Ala.Code 1975, § 12-5-20, issued an order directing

Chief Justice Moore did not appeal from the mandatory injunction; however, after the time for filing an appeal had expired, Chief Justice Moore asked the district court to stay the injunction pending the disposition of a petition for a writ ofmandamus and prohibition he had filed in the United States Supreme Court. 3

that the monument be removed. On August 21, 2003, the Alabama attorney general notified the district court that the action ofthe Associate Justices had rendered moot the motion to hold Chief Justice Moore in contempt. Removing the monument avoided the imposition of substantial daily fines against the State of Alabama, which the citizens of Alabama would have had to pay.

*853 On August 18, 2003, the district court denied the stay: On the afternoon of August 21, 2003, Chief Justice Moore

held a press conference at which he announced that he was,

"The Chief Justice could have appealed, and still can "very disappointed with my colleagues who have decided to

0

appeal, the August 5 final judgment and injunction to the Eleventh Circuit Court of Appeals. 28 U.S.C. §§ 1291,

act in response to [the federal district court's) order [and] exercise authority under§ 12-5-20, Alabama Code, to remove

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Moore v. Judlclallnqulry Com'n of State of Ala., 891 So.2d 848 (2004)

the monument of the Ten Commandments from the rotunda Once a complaint is filed against a judge by the Judicial

0

of the Alabama Judicial Building."

Inquiry Commission, the judge is automatically disqualified to act as a judge until the complaint is resolved in the Court

On August 22, 2003, the Judicial Inquiry Commission filed of the Judiciary. Ala. Const.l901, Amend. No. 328, § 6.19.

a formal complaint against Chief Justice Moore in the Court After the complaint against him was filed on August 22, Chief

of the Judiciary charging Chief Justice Moore with violating Justice Moore was no longer able to perform his duties as

Canons 1, 2A, and 2B of the Alabama Canons of Judicial ChiefJustice, pending resolution ofthe complaint in the Court

Ethics.

of the Judiciary.

On September 26, 2003, Chief Justice Moore filed a petition for a writ of certiorari with the United States Supreme Court, asking that Court to reverse the judgment of the Eleventh Circuit Court of Appeals. The United States Supreme *854 Court denied Chief Justice Moore's petition for the writ of certiorari on November 3, 2003 .
Canons 1, 2A, and 2B of the Canons of Judicial Ethics, which Chief Justice Moore was charged with violating, read as follows:

The Court of the Judiciary set October 3, 2003, as the deadline for Chief Justice Moore to file an answer to the complaint filed by the Judicial Inquiry Commission. Chief Justice Moore timely filed his answer, generally denying the allegations of the complaint and alleging that his refusal to obey the mandatory injunction issued by the federal district court was based upon his belief that the injunction was unlawful and illegal and that to obey it would require him to violate the oath of office by which he swore to uphold the Constitution of the State of Alabama.

"CANON 1
"A Judge Should Uphold the Integrity and Independence of the Judiciary
"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions ofthis Code should be construed and applied to further that objective.

After considering the evidence, most of which was not disputed, the Court ofthe Judiciary rendered its judgment and issued a unanimous opinion holding that Chief Justice Moore had violated the Canons of Judicial Ethics as charged in the complaint. The sanction imposed by the Court ofthe Jqdiciary was Chief Justice Moore's removal from office.
The Court of the Judiciary disposed of several ·pretrial motions filed by Chief Justice Moore. 4 This Court also considered *855 and denied several preliminary motions before reaching the merits of this appeal. 5 We tum now to the merits.

"CANON2
"A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
"B. A judge should at all times maintain the decorum and temperance befitting his office and should avoid conduct prejudicial to the administration ofjustice which brings the judicial office into disrepute."

The Scope ofReview
The Court of the Judiciary is a constitutionally created court with limited jurisdiction. Ala. Const.l901, Amend. No. 581, § 6.18 (proclaimed ratified June 19, 1996). It can decide only cases involving charges brought against judges by the Judicial Inquiry Commission. § 6.18(a). "A judge aggrieved by a decision of the Court of the Judiciary may appeal to the Supreme Court [of Alabama]. The Supreme Court shall review the record ofthe proceedings on the law and the facts ." § 6.18(b).

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Moore v. Judicial Inquiry Com'n of State of Ala., 891 So.2d 848 (2004)

Standard ofReview

*856 Issues On Appeal

[1] [2) [3] (4] "The applicable standard of review

for an order from the Court of the Judiciary is that the

I.

evidence must be clear and convincing. That is, 'orders of the Court of the Judiciary are entitled to a presumption of correctness if the charge is supported by "clear and convincing evidence." ' "In re Sheffield, 465 So.2d 350, 355 (Aia.1984) (quoting In re Samford, 352 So.2d 1126, 1129 (Aia.1977)). With regard to questions of law, this Court's review is de novo. Rogers Found Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)(quoting Ex parte Graham, 702 So.2d 1215 (Aia.1997)). However, factual findings of the Court of the Judiciary based on ore tenus evidence are presumed correct, and "[the Court of the Judiciary's] judgment based on those findings will not be disturbed unless the appellate court, after considering all the evidence and all reasonable inferences that can be drawn therefrom, concludes that the judgment is plainly and palpably wrong, manifestly unjust, or without supporting evidence." Boggan v. Judicial Inquiry Comm'n, 759 So.2d 550, 555 (Aia.1999). In the absence of specific factual findings, "this court will assume that the trial court [ [ 6 l made those findings necessary to

Chief Justice Moore contends initially that the Judicial Inquiry Commission failed to prove, and the Court of the Judiciary failed to consider, "the threshold question" of whether the order of the federal district court requiring the removal ofthe monument was "lawful." Chief Justice Moore himself points out that the charges against him are based on his willful failure "to comply with an existing and binding court order directed to him." Chief Justice Moore reasons, however, that if the order of the federal district court was not lawful, he "was ethically bound by his solemn oath to comply with the Constitutions of the United States and of Alabama, and not [with] the unlawful court order." ChiefJustice Moore contends that the federal court order was unlawful and that the Court of the Judiciary set a "dangerous precedent" by holding that he was required to obey that order because, he argues, "the ethical duties ofhis office [ofChiefJustice ofthe Alabama Supreme Court] require that he disobey unlawful orders."

support its judgment, unless such findings would be clearly the order ofthe federal district court provides, in part: erroneous and against the great weight and preponderance of

the evidence." 759 So.2d at 555 (quoting Powers v. Judicial · "The Establishment Clause of the First Amendment,

Inquiry Comm'n, 434 So.2d 745, 749 (Aia.1983)). Further,

made binding upon the States through the Fourteenth

in reviewing an appeal from a judgment of the Court of the

Amendment to the United States Constitution, provides

Judiciary finding the judge guilty of the charges against him

that government 'shall make no law respecting an

or her, the Supreme Court "must consider the evidence ... in

establishment of religion.' The question presented to this

the light most favorable to the Judicial Inquiry Commission,

court is whether the Chief Justice ofthe Alabama Supreme

the prevailing party." Boggan, 759 So.2d at 555.

Court violated the Establishment Clause when he placed a

slightly over two-and-a-half ton monument-engraved with

Our review is also guided by the Supremacy Clause of

the Ten Commandments and other references to God-

the United States Constitution: "This Constitution, and the

in the Alabama State Judicial Building with the specific

laws of the United States which shall be made in pursuance

purpose and effect, as the court finds from the evidence,

thereof ... shall be the supreme law of the land; and the

of acknowledging the Judeo-Christian God as the moral

judges in every state shall be bound thereby, anything

foundation of our laws.... [T]his court holds that the

in the Constitution or laws of any state to the contrary

evidence is overwhelming and the law is clear that the

notwithstanding." U.S. Const., art. VI, cl. 2.

Chief Justice violated the Establishment Clause."

Since the case ofMarburyv. Madison, 5 U.S. (1 Cranch) 137, 229 F.Supp.2d at 1293.

2 L.Ed. 60 (1803), was decided, it has been without doubt

that the federal judiciary has the power and authority, among Chief Justice Moore contends 1) that as Chief Justice he

other things, to interpret the.provisions of the United States "could not make a law," and 2) that the installation of the

Constitution in determining whether a provision, such as the monument was not an establishment of religion. Therefore,

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Establishment Clause, has been violated.

Chief Justice Moore contends, the order ofthe federal district

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Moore v. Judicial Inquiry Com'n of State of Ala., 891 So.2d 848 (2004)

court was unlawfully predicated on a First Amendment likewise decide a constitutional challenge to a court order that

analysis.

forms the basis for the charges against a judge before the

Court ofthe Judiciary.

Chief Justice Moore also claims that the order of the

federal district court is unlawful in that it violates the Chief Justice Moore also says that it was error for the Court

Tenth Amendment to the United States Constitution, which of the Judiciary to refuse to consider his reasons for not

provides that "powers not delegated to the United States by complying with the order of the federal district court, and to

the Constitution, nor prohibited by it to the states, are reserved consider only whether Chief Justice Moore had refused to

to the states respectively, or to the people." The Preamble comply and would continue to do so. Chief Justice Moore

to the Alabama Constitution of 1901 provides: "We, the states that the judgment of the Court of the Judiciary has in

people of Alabama, in order to establish justice, ... invoking effect created an "oath transfer rule"-that an oath taken by a

the favor and guidance of Almighty God, do ordain and public official is no longer to a constitution but to a court's

establish the following Constitution...." Chief Justice Moore opinion, even one contrary to the constitution.

says that he installed the monument, consistent with this

"constitutional[ly] divine acknowledgment," to recognize the (5) The Judicial Inquiry Commission argues, however, that

God mentioned in the Preamble to the Alabama Constitution. the Court of the Judiciary correctly refused to engage in a

He also says that power has not been delegated to the United collateral review of the merits of the federal court order,

States to deny the State of Alabama the right to do so. Chief because, it argues, the Court of the Judiciary lacks the

Justice Moore argues that states have the inherent power jurisdiction or authority to engage in such a review. The

to establish a system of justice, United States v. Morrison, Judicial Inquiry Commission says that it did not contend, and

529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); that the Court of the Judiciary did not hold, that the federal

Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, order was correctly decided. Rather, the Judicial Inquiry

98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Miller v. California, Commission says that it argued, and that the Court of the

413 U.S. 15, 93 S.Ct. 2607,37 L.Ed.2d 419 (1973), and that Judiciary held, that the correctness of a federal court's ruling

Alabama established its *857 system of justice "invoking is not reviewable by the Court of the Judiciary. We agree.

the favor and guidance of Almighty God." Thus, according Only a superior federal court can review the merits ofa ruling

to Chief Justice Moore, the order of the federal district court by a federal court. Chief Justice Moore exercised his right to

directly and unlawfully interferes with a power expressly obtain such a review in the federal system, and the federal

reserved to the State of Alabama. Based upon his reasoning appellate courts consistently upheld the order of the federal

that the federal court order was unlawful and that the Court district court.

of the Judiciary refused to consider the lawfulness of that

order, Chief Justice Moore concludes that the Court of the [6] [7] "The Court of the Judiciary is a trial court whose

Judiciary's holding that he violated the Canons of Judicial jurisdiction is limited to the trial of complaints filed by the

Ethics is not supported by clear and convincing evidence. We [Judicial Inquiry Commission] charging a judge or justice

disagree.

with violating one or more ofthe [Canons ofJudicial Ethics]."

Butler, 802 So.2d at 222 (Houston, J., dissenting). Further, the

Chief Justice Moore contends that the Court of the Judiciary Court of the Judiciary does not have the authority to correct

"shirked its duty" by assuming that the federal district or control the judgments of federal courts, and the general

court's order was lawful and in failing to determine as an rule is that state and federal courts will not interfere with "or

issue whether that order was unlawful. Chief Justice Moore try to restrain each other's proceedings." Donovan v. City of

supports this argument with a statement from the dissenting Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409

opinion in Butler v. Alabama Judicial Inquiry Commission, (1964) (cited in Moody v. State ex rei. Payne, 295 Ala. 299,

802 So.2d 207, 221 (Aia.2001): "In a proceeding before the 329 So.2d 73 (1976)); Ex parte Consolidated Graphite Corp.,

Alabama Court of the Judiciary, a defendant can raise and 221 Ala. 394, 129 So. 262 (1930).

have decided a constitutional challenge to a judicial canon

that the defendant is charged with violating." (Houston, J., *858 We hold that there was before the Court of the

dissenting). Chief Justice Moore, relying on that dissent, Judiciary clear and convincing evidence that a federal

0

reasons that if the Court of the Judiciary can decide a constitutional challenge to a canon of judicial ethics, it can

injunction directed to Chief Justice Moore existed; that that injunction was a binding order of a court of competent

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Moore v. Judlclallnqulry Com'n of State of Ala., 891 So.2d 848 (2004)

jurisdiction; and that Chief Justice Moore intentionally and publicly defied the injunction. 7
II.
(8] Chief Justice Moore next argues that the Court of the Judiciary applied a constitutionally prohibited "religious test" in order to remove him from office for publicly acknowledging God through the installation of the monument. Chief Justice Moore notes that the Alabama Constitution, § 3, provides that "no religious test shall be required as a qualification to any office or public trust under this state." Chief Justice Moore says that the Judicial Inquiry Commission, in its argument before the Court of the Judiciary, characterized him as "totally unrepentant" for his refusal to cease his acknowledgment of God. According to Chief Justice Moore, he was forced to "deny God by removing the monument because a federal judge told him so."
Chief Justice Moore also contends that the judgment of the Court of the Judiciary runs afoul of the United States Constitution because, he argues, "[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such." McDaniel v. Paty, 435 U.S. 618, 626, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978). The result of the judgment of the Court of the Judiciary, ChiefJustice Moore argues, is to prohibit him from holding both his religious belief and his public office, and he reasons that if that judgment is based on the Canons of Judicial Ethics, then the Canons constitute a religious test that bar people with religious beliefs from holding judicial office.

"The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion."
The Cantwell Court noted that the First Amendment "embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature ofthings, the second cannot be. Conduct remains subject to regulation for the protection of society." ld, at 303-04, 60 S.Ct. 900 (footnote omitted).
We cannot agree with Chief Justice Moore that the Court of the Judiciary applied an improper "religious test" in analyzing the issues before it, nor can we·.agree that its judgment violated ChiefJustice Moore's constitutional rights to hold his religious beliefs.
We note that the actual statements made by the attorney general on behalf of the Judicial Inquiry Commission in closing argument before the Court of the Judiciary were as follows:

The Judicial Inquiry Commission argues, however, that the Court of the Judiciary did not impose a "religious test" upon Chief Justice Moore and that it did not order that he forsake the public acknowledgment of God or surrender his office. The Judicial Inquiry Commission maintains that neither it nor the Court ofthe Judiciary asked Chief Justice Moore to deny God or to forsake a public acknowledgment of God. In fact, the Court of the Judiciary, in its final judgment, expressly recognized that the acknowledgment of God "is very much a vital part of the public *859 and private fabric of our country." We agree.
The Judicial Inquiry Commission quotes Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940):

"Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law, by refusing to abide by a final injunction entered against him, and by urging the public through the news media to support him, and because he is totally unrepentant, this court regrettably must remove Chief Justice Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer, or a citizen, demands no less."

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The Judicial Inquiry Commission did not contend, as Chief Justice Moore argues, that sanctions were sought because Chief Justice Moore is totally unrepentant "for his refusal to cease his acknowledgment of God." And the Court of the Judiciary's opinion refutes Chief Justice Moore's assertion that he was forced "to deny God by removing the monument because a federal judge told him so."
Two federal courts have concluded that this case is not about a public official's right to acknowledge God, as Chief Justice Moore contends. Rather, this case is about a public official who took an oath to uphold the Constitution of the United States and then refused to obey a valid order ofa United States District Court holding that the placement ofthe monument in the Judicial Building violated the Establishment Clause ofthe First Amendment to the United States Constitution.
We quote with approval the following from the opinion of the United States Court of Appeals for the Eleventh Circuit, affirming the order of the federal district court:

competence, has been exhausted and has resulted in a final judgment, all persons affected thereby are obliged to obey it.'
"United States v. Wallace, 218 F.Supp. 290, 292 (N.D.Ala.l963) ....
"The rule of law does require that every person obey judicial orders when all available means of appealing them has been exhausted.... The rule oflaw will prevail."
Glassroth v. Moore, 335 F.3d at 1302-03.
m.
Chief Justice Moore argues that the Court of the Judiciary denied his right to due process of law by refusing to hear his argument regarding the lawfulness of the order ofthe federal district court and by denying certain of the motions he filed with the Court of the Judiciary.

"The clear implication of Chief Justice Moore's argument is that no government official who heads one of the three branches of any state or of the federal government, and takes an oath of office to defend the Constitution, as all of them do, is subject to the order of any court, at least not of any federal court below the Supreme Court. In the regime he champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of *860 course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. See generally, e.g., Meredith v. Fair, 328 F.2d 586, 589-90 (5th Cir.1962)(en bane) ...; Williams v. Wallace, 240 F.Supp. 100 (M.D.Ala.l965} ... (Johnson, J.,) ...; cf United States v. Barnett, 376 U.S. 681 ... (1964).
"Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case. See U.S. Const. Art. ill, § 1; id., Art. VI, cl. 2. What a different federal district court judge wrote forty years ago, in connection with the threat of another high state official to defy a federal court order, remains true today:
" 'In the final analysis, the concept of law and order, the very essence of a republican form of government, embraces the notion that when the judicial process of a state or federal court, acting within the sphere of its

Citing Stallworth v. City of Evergreen, 680 So.2d 229 (Aia.1996), Chief Justice Moore contends that he had a property interest in the office of chief justice, that the Fourteenth Amendment prohibits states from depriving citizens of their property without due process of law, and that" 'the opportunity to present reasons ... why [a] proposed action should not be taken is a fundamental due process requirement.' "680 So.2d at 233 (quoting Cleveland Bd of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Chief Justice Moore says that "in its haste to remove [him] from office, the [Court ofthe Judiciary] 'stopped up its ears' and ignored [his] argument that the underlying federal court order was unlawful and that such [an] order did not require his obedience as is consistent with his oath and conscience."
Chief Justice Moore also contends that the denial by the Court of the Judiciary of his "substantive motions" was a further violation of his due-process rights. The Court of the Judiciary denied filings that included 1) a motion to subpoena records that Chief Justice Moore indicated would show that the members ofthe Court of the Judiciary were not appointed in conformity with Ala. Const.l901, Amend. No. 581, § 6.18; 2} a motion seeking the opportunity to serve interrogatories on, and conduct voir dire of, members of the Court of the Judiciary regarding their possible bias against Chief Justice Moore; 3) an inquiry into the term of office of one of the members of the Court of the Judiciary; 4) an inquiry into

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()

vacancies on the Court of the Judiciary; 5) a motion to allow "full and unrestricted media coverage" of Chief Justice Moore's hearing before the Court ofthe Judiciary; 6) a motion to disqualify *861 Attorney General Pryor; 7) a motion to dismiss the complaint against Chief Justice Moore; and 8) a motion for a judgment of acquittal and/or a judgment as a matter oflaw.
The Judicial Inquiry Commission maintains, however, that the Court of the Judiciary provided Chief Justice Moore with due process at every stage of these proceedings. The Judicial Inquiry Commission argues that because the Court of the Judiciary has no jurisdiction to review the merits of a federal court order, Chief Justice Moore was not deprived of due process of law by the refusal of the Court of the Judiciary to accept evidence and to hear arguments on the merits of the order ofthe federal district court. We agree. Chief Justice Moore was not deprived of due process by the rejection ofthe Court ofthe Judiciary of evidence on an issue over which that court has no jurisdiction.
IV.
Chief Justice Moore argues that "[t]he very same rules wielded by the [Court of the Judiciary] to punish [him] for refusing to deny God were themselves predicated upon the Holy Scriptures and moral precepts of Almighty God." Chief Justice Moore points out that Thomas Goode Jones, a lawyer and the governor of Alabama from 1890-1894, authored the first code of ethics for lawyers, which was adopted by the Alabama State Bar Association in 1887. Jones based his code of ethics substantially on the writings of George Sharswood and David Hoffman, early pioneers in the field of legal ethics. Sharswood and Hoffman relied heavily on scriptural teachings and moral principles as a basis for their work. Alva H. Maddox, Lawyers: The Aristocracy of Democracy or "Skunks, Snakes, and Sharks"?, 29 Cumb. L.Rev. 323 (1998-99).
The Judicial Inquiry Commission contends that the piety of those behind the drafting of Alabama's first code of legal ethics does not authorize Chief Justice Moore to willfully disobey a federal court order directed to him, nor does it excuse his disobedience. Chief Justice Moore cites no authority that provides an exception to the rule of law that one must obey a court order or that would allow disobedience to a court order on the basis of one's religious beliefs. Further,

there is no such exception to the application ofthe Canons of Judicial Ethics to Chief Justice Moore's conduct.
Penalty ofRemoval From Office
[9] The Judicial Inquiry Commission argues that this Court should not review the sanction imposed on Chief Justice Moore by the Court of the Judiciary because, it argues, there is clear and convincing evidence that Chief Justice Moore violated the Canons of Judicial Ethics, as charged, and once the Supreme Court determines that ''the record shows by clear and convincing evidence that the charge or charges have been committed, then [the Supreme] Court does not have the authority to reduce or reject the sanction imposed by the [Court of the Judiciary]." Boggan, 759 So.2d at 555.
Chief Justice Moore, however, argues that, even if this Court finds that the Court of the Judiciary correctly held that he violated the Canons of Judicial Ethics, nothing in the Alabama Constitution of 1901 limits this Court's review of the sanction imposed by the Court of the Judiciary. Section 6.18(b), Amend. No. 581, Ala. Const.190l, provides that"[a] judge aggrieved by a decision of the Court of the Judiciary may appeal to the Supreme Court," and the Supreme Court "shall review the record of the proceedings on the law and the facts." Thus, argues Chief Justice Moore, if review of the sanction *862 imposed by the Court of the Judiciary is beyond the reach of the reviewing court, then "a judge aggrieved by a decision ofthe Court ofthe Judiciary" has only one-halfofthe remedy set out in§ 6.18(b). Thus, argues Chief Justice Moore, this Court should not only review the sanction imposed by the Court of the Judiciary and reverse its order imposing the sanction, it should also overrule the holding in Boggan and "remove the hindrance" Boggan poses to appellate review of a judgment of the Court of the Judiciary.
As we held in Part I ofthis opinion, the Court ofthe Judiciary had before it clear and convincing evidence that ChiefJustice Moore violated Canons 1, 2A, and 2B of the Canons of Judicial Ethics, as charged in the complaint filed by the Judicial Inquiry Commission, by willfully refusing to obey a lawful and binding order of a federal court. We decline to revisit Boggan and its predecessor holdings, as Chief Justice Moore suggests we do. We find it unnecessary to do so because we conclude, as did the Boggan Court, that the sanction of removal from office was not plainly and palpably wrong, manifestly unjust, or without supporting evidence. In fact, the evidence of Chief Justice Moore's violations of

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the Canons of Judicial Ethics was sufficiently strong and convincing that the Court of the Judiciary could hardly have done otherwise than to impose the penalty of removal from office. We find that the sanction imposed was proper and that it is supported by the evidence of record.
Conclusion
In addition to hearing oral arguments in this case, this Court has thoroughly reviewed the record on appeal and has carefully studied the briefs submitted by the parties. We conclude that the judgment of the Court of the Judiciary is fully supported by clear and convincing evidence, as is the sanction it imposed of removing Chief Justice Moore from office. The judgment of the Court of the Judiciary is hereby affirmed in its entirety.

and those who so resist have themselves to thank for the punishment they will receive. For government, a terror to crime, has no terrors for good behavior. You wish to have no fear ofthe authorities? Then continue to do right and you will have their approval, for they are *863 God's agents working for your good. But if you are doing wrong, then you will have cause to fear them; it is not for nothing that they hold the power ofthe sword, for they are God's agents of punishment, for retribution on the offender. That is why you are obliged to submit. It is an obligation imposed not merely by fear ofretribution but by conscience. That is also why you pay taxes. The authorities are in God's service and to these duties they devote their energies. Discharge your obligations to all men; pay tax and toll, reverence and respect, to those to whom they are due." 8

AFFIRMED.
JOHN M. PATIERSON, Special Chief Justice, and JANIE L. SHORES, KENNETH F. INGRAM, BRAXTON KITTRELL, EDWARD DWIGHT FAY, JR..• and J. RICHMOND PEARSON, Special Justices, concur: HARRY J. WILTERS, JR., Special Justice, concurs specially.

"Submit yourselves to every human institution for the sake of the Lord." 9
"In him everything in heaven and on earth was created, not only things visible but also the invisible orders of thrones, sovereignties, authorities, and powers." 10

HARRY J. WILTERS, JR., Special Justice (concurring specially). I concur fully with the opinion ofthe Court. I write specially to add some personal observations.
The evidence received and considered by the Court of the Judiciary confirmed that Chief Justice Moore failed to obey an order of the federal district court. The Chief Justice never said whether, after he had exhausted all of his legal remedies, he would move the monument back into the rotunda of the Judicial Building.
ChiefJustice Moore offered both legal and biblical arguments for his failure to comply with the federal court's order. Even if the biblical arguments could be considered, the Bible also tells us:

"Remind them to be submissive to the government and the authorities, to obey them, and to be ready for any honorable form of work; to slander no one, not to pick quarrels, to show forbearance and a gentle disposition towards all men." 11
"He said to them, 'Then pay Caesar what is due to Caesar, and pay to God what is due to God.' " 12

"Every person must submit to the supreme authorities.

"Do as the king commands you, and ifyou have to swear by

There is no authority but by act of God, and the existing

God, do not be precipitate. Leave the king's presence and

0

authorities are instituted by him; consequently anyone who rebels against authority is resisting a divine institution,

do not persist in a thing which displeases him; he does what he chooses. For the king's word carries authority. Who can

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question what he does? Whoever obeys a command will come to no harm. A wise man knows in his heart the right time and method for action. There is a time and a method for every enterprise." 13

All Citations 891 So.2d 848

Footnotes

1

Amendment No. 581, Ala. Const.1901 , § 6.18(b), which amends the Judicial Article, provides that "[a) judge aggrieved by

a decision of the Court of the Judiciary may appeal to the supreme court.• Following the filing of the notice of appeal in this

case on December 10, 2003, the members of the Alabama Supreme Court acknowledged that Canon 3 of the Alabama

Canons of Judicial Ethics required their recusal from consideration of this appeal. In a unanimous order dated December

11, 2003, the Court, pursuant to Amend. No. 328, §§ 6.10 and 6.21(h), and Ala.Code 1975, § 12-2-14, authorized the

acting Chief Justice to "participate with the Governor in a random drawing" of 20 names from a pool of retired justices and

judges who are members of the Alabama State Bar and capable of service. The order provided: "From the 20 judges so

drawn, the first 7 judges shall constitute the special Supreme Court. In the event any judge so selected is not willing and

able to serve, then that judge's place shall be filled by the next judge in order of selection .. .. The undersigned Justices,

having provided a mechanism affording Roy S. Moore a right to be heard, hereby recuse. ·

On December 16, 2003, in compliance with the random selection procedure, Governor Bob Riley appointed the

following seven judges to serve as the special Supreme Court of Alabama in case no. 1030398, Moore v. Judicial

Inquiry Commission of the State of Alabama: The Honorable John M. Patterson, of Tallapoosa County, Special Chief

Justice; the Honorable Janie L. Shores, of Jefferson County; the Honorable Kenneth F. Ingram, of Clay County; the

Honorable Harry J. Wilters, Jr., of Baldwin County; the Honorable Braxton Kittrell, of Mobile County; the Honorable

Edward Dwight Fay, Jr., of Madison County; and the Honorable J. Richmond Pearson , of Washington County, Special

Associate Justices.

2

The installation was videotaped, with Chief Justice Moore's permission, by Coral Ridge Ministries (an evangelical

Christian media organization). Copies of the videotape have been sold to raise funds for the activities of Coral Ridge

Ministries, which include the underwriting of expenses of Chief Justice Moore's legal defense.

3

In that petition Chief Justice Moore asked the Supreme Court to direct the Eleventh Circuit Court of Appeals and the

federal district court to refrain from enforcing any order requiring the removal of the monument, arguing that the relief he

sought from the United States Supreme Court was not available in any other court.

4

Including, among others, a motion to disqualify members of the Court of the Judiciary; a motion to move the hearing

before the Court of the Judiciary to a larger facility; a motion to bar participation by or statements from lawyers who

had represented Chief Justice Moore in other proceedings; and a motion to disqualify then Attorney General Pryor and

representatives of his office (and a motion to reconsider the denial of that motion, supported by affidavits of former

Governor Fob James, Jr., and his son, Forrest H. James Ill). The Court of the Judiciary considered every motion in turn,

granting some and denying others.

5

Including motions to disqualify acting Chief Justice Houston and the Associate Justices of the Alabama Supreme Court

and to vacate the order appointing this special Supreme Court; motions to disqualify all members of this Court on the

ground that the selection process was contrary to law; and motions seeking the recusal of certain members of this special

Supreme Court.

6

The Court of the Judiciary was the trial court in this case. See Boggan, 759 So.2d at 555.

7

The following are comments made by Chief Justice Moore:

"I have no intention of removing the monument of the Ten Commandments and the moral foundation of our law. To

do so would, in effect, result in the disestablishment of our system of justice in this State." Public statement issued by

Chief Justice Moore on August 14, 2003.

"I did what I did because I upheld my oath . And that's what I did, so I have no apologies for it. I would do it again. I didn't say I would defy the court order. I said I wouldn't move the monument.· Chief Justice Moore's statement to the Judicial Inquiry Commission on August 22, 2003.

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"I did say I will not move the monument, that this I could not do. I did not say I would defy [the order of the federal

0

district court]. I did not use those words; but I did say I would not move the monument." Testimony of Chief Justice Moore before the Court of the Judiciary on November 12, 2003.

"Q. [Attorney General Pryor]: Mr. Chief Justice, you stand by your testimony of August 22 of this year before the Judicial

Inquiry Commission that you would do it again, don't you?

"A. [Chief Justice Moore]: I would do everything that I have done again, yes." Testimony of Chief Justice Moore before

the Court of the Judiciary on November 12, 2003.

8

Romans 13:1-7, The New English Bible.

9

I Peter2:13, The New English Bible.

10 Colossians 1:16, The New English Bible.

11 Titus 3:1-2, The New English Bible.

12 Matthew22:21, The New English Bible.

13 Ecclesiastes 8:3-6, The New English Bible.

End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works.

13

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)
KeyCite Yellow Flag- Negative Treatment Disagreed With by Ex parte State ex rei. Alabama Policy Institute,
Ala., March 3, 2015
81 F.Supp.3d 1285 United States District Court,
S.D. Alabama, Southern Division. Cari D. SEARCY and Kimberly McKeand, individually and as parent and next friend of K.S., a minor, Plaintiffs,
v. Luther STRANGE, in his capacity as Attorney General for the State ofAlabama, Defendant.
Civil Action No. 14-0208-CG-N.
I
Signed Jan. 23, 2015. Synopsis Background: Same-sex couple brought action challenging constitutionality of Alabama's prohibition against same-sex marriages. Parties filed cross-motions for summary judgment.
Holdings: The District Court, Callie V.S. Granade, J., held that:
[1] United States Supreme Court's summary dismissal of appeal from state supreme court upholding ban on same-sex marriage for want ofsubstantial federal question did not serve as binding precedent, and
[2] Alabama's prohibition against same-sex marriage violated same-sex couple's rights under Due Process and Equal Protection Clauses.
Plaintiffs' motion granted.
Stay conditionally granted, 2015 WL 328825.
West Headnotes (6)
[1] Courts

EXHIBIT
])
Supreme Court decisions Courts
Particular questions or subject matter United States Supreme Court's summary dismissal, in Baker v. Nelson, of appeal from decision ofMinnesota Supreme Court upholding ban on same-sex marriage for want ofsubstantial federal question did not serve as binding precedent barring federal district court from considering constitutionality of state's ban on same-sex marriages.
4 Cases that cite this headnote
[2] Constitutional Law Sexual orientation
Classification based on sexual orientation is not suspect for purposes of Equal Protection Clause. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[3] Constitutional Law Strict scrutiny and compelling interest in
general Laws that implicate fundamental rights are subject to strict scrutiny under Equal Protection Clause, and will survive constitutional analysis only if narrowly tailored to compelling government interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[4] Constitutional Law Marriage and divorce in general
Constitutional Law Marital Relationship
Institution of marriage is fundamental right protected by Due Process and Equal Protection Clauses, and state must, therefore, demonstrate that its laws restricting fundamental right to marry serve compelling state interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

[5] Constitutional Law Strict scrutiny and compelling interest in
general Constitutional Law
Levels of scrutiny; strict or heightened scrutiny Under Due Process and Equal Protection Clauses, interference with fundamental right warrants application of strict scrutiny. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[6] Constitutional Law Marriage and civil unions
Constitutional Law Same-sex marriage
Marriage Power to regulate and control
Marriage Same-Sex and Other Non-Traditional
Unions Alabama's prohibition against same-sex marriage was not narrowly tailored to fulfill state's legitimate interest in protecting ties between children and their biological parents and other biological kin, and thus violated same-sex couple's rights under Due Process and Equal Protection Clauses; state provided no explanation for how allowing or recognizing same-sex marriage between two consenting adults would prevent heterosexual parents or other biological kin from caring for their biological children, and state did not prohibit other couples who were either unwilling or unable to biologically procreate from marrying. U.S.C.A. Const.Amend. 14; Ala.Const. Art. 1, § 36.03; Ala.Code 1975, § 30-1-19.
3 Cases that cite this headnote
West Codenotes
Held Unconstitutional Ala.Code 1975, § 30-1-19; Ala.Const. Art. 1, § 36.03

Attorneys and Law Firms
*1286 Christine Cassie Hernandez, David Graham Kennedy, Mobile, AL, for Plaintiffs.
James W. Davis, Office of the Attorney General, Laura Elizabeth Howell, Montgomery, AL, for Defendant.
MEMORANDUM OPINION AND ORDER
CALLIE V.S. GRANADE, District Judge.
This case challenges the constitutionality of the State of Alabama's "Alabama Sanctity of Marriage Amendment" and the "Alabama Marriage Protection Act." It is before the Court on cross motions for summary judgment (Docs. 21, 22, 47 & 48). For the reasons explained below, the Court finds the challenged laws to be unconstitutional on Equal Protection and Due Process Grounds.
I. Facts This case is brought by a same-sex couple, Cari Searcy and Kimberly McKeand, who were legally married in California under that state's laws. The Plaintiffs want Searcy to be able to adopt McKeand's 8-year--old biological son, K.S., under a provision of Alabama's adoption code that allows a person to adopt her "spouse's child." ALA.CODE§ 26--10A27. Searcy filed a petition in the Probate Court of Mobile County seeking to adopt K.S. on December 29, 2011, but that petition was denied based on the "Alabama Sanctity of Marriage Amendment" and the "Alabama Marriage Protection Act." (Doc. 22-6). The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity ofMarriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

relationship as husband and wife, and which is recognized by the state as a civii contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties ofthe same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction *1287 shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.
ALA. CONST. ART. I, § 36.03 (2006).
The Alabama Marriage Protection Act provides:
(a) This section shall be known and may be cited as the "Alabama Marriage Protection Act."
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

ALA.CODE § 30-1-19. Because Alabama does not recognize Plaintiffs' marriage, Searcy does not qualify as a "spouse" for adoption purposes. Searcy appealed the denial of her adoption petition and the Alabama Court of Civil Appeals affirmed the decision of the probate court. (Doc. 22-7).
II. Discussion There is no dispute that the court has jurisdiction over the issues raised herein, which are clearly constitutional federal claims. This court has jurisdiction over constitutional challenges to state laws because such challenges are federal questions. 28 U.S.C. § 1331.
Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Because the parties do not dispute the pertinent facts or that they present purely legal issues, the court turns to the merits.
Plaintiffs contend that the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act violate the Constitution's Full Faith and Credit clause and the Equal Protection and Due Process clauses of the Fourteenth Amendment. Alabama's Attorney General, Luther Strange, contends that Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling in this case. In Baker, the United States Supreme Court summarily dismissed "for want of substantial federal question" an appeal from the Minnesota Supreme Court, which upheld a ban on same-sex marriage. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn.1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota Supreme Court held that a state statute defining marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Baker, 191 N.W.2d at 185-86. However, Supreme Court decisions since Baker reflect significant "doctrinal developments" concerning the constitutionality of prohibiting same-sex relationships. See *1288 Kitchen v. Herbert, 755 F.3d 1193, 1204-05 (lOth Cir.2014). As the Tenth Circuit noted in Kitchen, "[t]wo landmark decisions by the Supreme Court", Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor, - U.S. - - , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), "have undennined the notion that the question presented in Baker is insubstantial." 755 F.3d at 1205. Lawrence held that the government could not lawfully

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

"demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime." Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. In Windsor, the Supreme Court struck down the federal definition of marriage as being between a man and a woman because, when applied to legally married same-sex couples, it "demean[ed] the couple, whose moral and sexual choices the Constitution protects." Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178-80 (2d Cir.2012) ("Even if Baker might have had resonance ... in 1971, it does not today.").
[1] Although the Eleventh Circuit Court of Appeals has not yet determined the issue, several federal courts of appeals that have considered Baker's impact in the wake ofLawrence and Windsor have concluded that Baker does not bar a federal court from considering the constitutionality of a state's ban on same-sex marriage. See, e.g., Bishop v. Smith, 760 F.3d 1070 (lOth Cir.2014); Kitchen, 755 F.3d 1193 (lOth Cir.20l4);Lattav. Otter, 771 F.3d456 (9thCir.2014);Bas/dn v. Bogan, 766 F.3d 648 (7th Cir.20 14); Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014). Numerous lower federal courts also have questioned whether Baker serves as binding precedent following the Supreme Court's decision in Windsor. This Court has the benefit of reviewing the decisions of all of these other courts. "[A] significant majority of courts have found that Baker is no longer controlling in light of the doctrinal developments of the last 40 years." Jernigan v. Crane, 64 F.Supp.3d 1260, 1276, 2014 WL 6685391, *13 (E.D.Ark.2014) (citing Rosenbrahn v. Daugaard, 61 F.Supp.3d 845, 854--56 n. 5, 2014 WL 6386903, at *6-7 n. 5 (D.S.D. Nov. 14, 2014) (collecting cases that have called Baker into doubt)). The Court notes that the Sixth Circuit recently concluded that Baker is still binding precedent in DeBoer v. Snyder, 772 F.3d 388 (6th Cir.2014), but finds the reasoning ofthe Fourth, Seventh, Ninth, and Tenth Circuits to be more persuasive on the question and concludes that Baker does not preclude consideration of the questions presented herein. 1 Thus, the Court first addresses the merits of Plaintiffs' Due Process and Equal Protection claims, as those claims provide the most appropriate analytical framework. And if equal protection analysis decides this case, there is no need to address the Full Faith and Credit claim.
(2] Rational basis review applies to an equal protection analysis unless Alabama's *1289 laws affect a suspect class of individuals or significantly interfere with a fundamental

right. Zablockiv. Redhail, 434 U.S. 374,388,98 S.Ct. 673,54 L.Ed.2d 618 ( 1978). Although a strong argument can be made that classification based on sexual orientation is suspect, Eleventh Circuit precedence holds that such classification is not suspect. Lofton v. Secretary of Dep't. of Children and Family Services, 358 F.3d 804, 818 (11th Cir.2004). The post- Windsor landscape may ultimately change the view expressed in Lofton, however no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.
[3] [4] Laws that implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Careful review of the parties' briefs and the substantial case law on the subject persuades the Court that the institution of marriage itself is a fundamental right protected by the Constitution, and that the State must therefore convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest.
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men" and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswoldv. Connecticut, 381 U.S. 479,486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and of association, ML.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Planned Parenthood ofSE Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
[5] "Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny." Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir.2014). Strict scrutiny "entail[s] a most searching examination" and requires "the most exact connection between justification and classification." Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (internal quotations omitted). Under this standard, the defendant "cannot rest upon a generalized assertion as to the classification's relevance to its goals." Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

854 (1989). "The purpose ofthe narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate." Grutter v. Bollinger, 539 U.S. 306, 333, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).
(6] Defendant contends that Alabama has a legitimate interest in protecting the ties between children and their biological parents and other biological kin. 2 However, *1290 the Court finds that the laws in question are not narrowly tailored to fulfill the reported interest. The Attorney General does not explain how allowing or recognizing samesex 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. Kitchen, 755 F.3d at 1222 ("As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants' interest in fostering biological reproduction within marriages.").

by opposite-sex parents. Yet Alabama's Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples. Such a law "humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor, 133 S.Ct. at 2694. Alabama's prohibition and non-recognition of same-sex marriage "also brings financial harm to children of same-sex couples." id at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Additionally, these laws further injures those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.
For all of these reasons, the court finds that Alabama's marriage laws violate the Due Process Clause and Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution.
III. Conclusion For the reasons stated above, Plaintiffs' motion for summary judgment (Doc. 21 ), is GRANTED and Defendant's motion for *1291 summary judgment (Docs. 47), is DENIED.
IT IS FURTHER ORDERED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975, § 30-1-19 are unconstitutional because they violate they Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
IT IS FURTHER ORDERED that the defendant is enjoined from enforcing those laws.

If anything, Alabama's prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by samesex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised

All Citations 81 F.Supp.3d 1285

Footnotes

1

This court also notes that the Supreme Court has granted certiorari in the DeBoer case, Bourke v. Beshear, -U.S.

- - , 135 S.Ct. 1041, 190 L.Ed.2d 908 (2015), limiting review to these two questions: 1) Does the 14th Amendment

require a state to license a marriage between two people of the same sex? and 2) Does the 14th Amendment require

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and

performed out-of-state? The questions raised in this lawsuit will thus be definitively decided by the end of the current

Supreme Court term, regardless of today's holding by this court.

2

Although Defendant seems to hang his hat on the biological parent-child bond argument, Defendant hints that this is one

of many state interests justifying the laws in question and some of his arguments could be construed to assert additional

state interests that have commonly been proffered in similar cases. The court finds that these other interests also do

not constitute compelling state interests. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014) (finding that the following

interests neither individually nor collectively constitute a compelling state interest for recognizing same-sex marriages: (1)

the State's federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history

and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation,

and (5) promoting the optimal childrearing environment.).

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

KeyCite Yellow Flag - Negative Treatment Disagreed With by Ex parte State ex rei. Alabama Policy Institute,
Ala., March 3, 2015
81 F.Supp.3d 1285 United States District Court,
S.D. Alabama, Southern Division.
Cari D. SEARCY and Kimberly McKeand, individually and as parent and next friend of K.S., a minor, Plaintiffs, v.
Luther STRANGE, in his capacity as Attorney General for the State ofAlabama, Defendant.
Civil Action No. 14-0208-CG-N.
I
Signed Jan. 23, 2015.
Synopsis Background: Same-sex couple brought action challenging constitutionality of Alabama's prohibition against same-sex marriages. Parties filed cross-motions for summary judgment.
Holdings: The District Court, Callie V.S. Granade, J., held that:
[1] United States Supreme Court's summary dismissal of appeal from state supreme court upholding ban on same-sex marriage for want ofsubstantial federal question did not serve as binding precedent, and
[2] Alabama's prohibition against same-sex marriage violated same-sex couple's rights under Due Process and Equal Protection Clauses.
Plaintiffs' motion granted.
Stay conditionally granted, 2015 WL 328825.
West Headnotes (6)
[1] Courts

Supreme Court decisions Courts
Particular questions or subject matter United States Supreme Court's summary dismissal, in Baker v. Nelson, of appeal from decision ofMinnesota Supreme Court upholding ban on same-sex marriage for want ofsubstantial federal question did not serve as binding precedent barring federal district court from considering constitutionality of state's ban on same-sex marriages.
4 Cases that cite this headnote
[2] Constitutional Law Sexual orientation
Classification based on sexual orientation is not suspect for purposes of Equal Protection Clause. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[3] Constitutional Law Strict scrutiny and compelling interest in
general Laws that implicate fundamental rights are subject to strict scrutiny under Equal Protection Clause, and will survive constitutional analysis only if narrowly tailored to compelling government interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[4] Constitutional Law Marriage and divorce in general
Constitutional Law Marital Relationship
Institution of marriage is fundamental right protected by Due Process and Equal Protection Clauses, and state must, therefore, demonstrate that its laws restricting fundamental right to marry serve compelling state interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

[5] Constitutional Law Strict scrutiny and compelling interest in
general Constitutional Law
Levels of scrutiny; strict or heightened scrutiny Under Due Process and Equal Protection Clauses, interference with fundamental right warrants application of strict scrutiny. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[6] Constitutional Law Marriage and civil unions
Constitutional Law Same-sex marriage
Marriage Power to regulate and control
Marriage Same-Sex and Other Non-Traditional
Unions Alabama's prohibition against same-sex marriage was not narrowly tailored to fulfill state's legitimate interest in protecting ties between children and their biological parents and other biological kin, and thus violated same-sex couple's rights under Due Process and Equal Protection Clauses; state provided no explanation for how allowing or recognizing same-sex marriage between two consenting adults would prevent heterosexual parents or other biological kin from caring for their biological children, and state did not prohibit other couples who were either unwilling or unable to biologically procreate from marrying. U.S.C.A. Const.Amend. 14; Ala.Const. Art. 1, § 36.03; Ala.Code 1975, § 30--1-19.
3 Cases that cite this headnote
West Codenotes
Held Unconstitutional Ala.Code 1975, § 30--1-19; Ala.Const. Art. 1, § 36.03

Attorneys and Law Firms
*1286 Christine Cassie Hernandez, David Graham Kennedy, Mobile, AL, for Plaintiffs.
James W. Davis, Office of the Attorney General, Laura Elizabeth Howell, Montgomery, AL, for Defendant.
MEMORANDUM OPINIONAND ORDER
CALLIE V.S. GRANADE, District Judge.
This case challenges the constitutionality of the State of Alabama's "Alabama Sanctity of Marriage Amendment" and the "Alabama Marriage Protection Act." It is before the Court on cross motions for summary judgment (Docs. 21, 22, 47 & 48). For the reasons explained below, the Court finds the challenged laws to be unconstitutional on Equal Protection and Due Process Grounds.
I. Facts This case is brought by a same-sex couple, Cari Searcy and Kimberly McKeand, who were legally married in California under that state's laws. The Plaintiffs want Searcy to be able to adopt McKeand's 8-year-old biological son, K.S., under a provision of Alabama's adoption code that allows a person to adopt her "spouse's child." ALA.CODE § 26-lOA27. Searcy filed a petition in the Probate Court of Mobile County seeking to adopt K.S. on December 29, 2011, but that petition was denied based on the "Alabama Sanctity of Marriage Amendment" and the "Alabama Marriage Protection Act." (Doc. 22-6). The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction *1287 shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.
ALA. CONST. ART. I, § 36.03 (2006).
The Alabama Marriage Protection Act provides:
(a) This section shall be known and may be cited as the "Alabama Marriage Protection Act."
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

ALA.CODE § 30-1-19. Because Alabama does not recognize Plaintiffs' marriage, Searcy does not qualify as a "spouse" for adoption purposes. Searcy appealed the denial of her adoption petition and the Alabama Court of Civil Appeals affirmed the decision of the probate court. (Doc. 22-7).
II. Discussion There is no dispute that the court has jurisdiction over the issues raised herein, which are clearly constitutional federal claims. This court has jurisdiction over constitutional challenges to state laws because such challenges are federal questions. 28 U.S. C. § 1331.
Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Because the parties do not dispute the pertinent facts or that they present purely legal issues, the court turns to the merits.
Plaintiffs contend that the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act violate the Constitution's Full Faith and Credit clause and the Equal Protection and Due Process clauses of the Fourteenth Amendment. Alabama's Attorney General, Luther Strange, contends that Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling in this case. In Baker, the United States Supreme Court summarily dismissed "for want of substantial federal question" an appeal from the Minnesota Supreme Court, which upheld a ban on same-sex marriage. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn.1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Mim1esota Supreme Court held that a state statute defining marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Baker, 191 N.W.2d at 185-86. However, Supreme Court decisions since Baker reflect significant "doctrinal developments" concerning the constitutionality of prohibiting same-sex relationships. See *1288 Kitchen v. Herbert, 755 F.3d 1193, 1204-05 (lOth Cir.2014). As the Tenth Circuit noted in Kitchen, "[t]wo landmark decisions by the Supreme Court", Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor, - U.S. - - , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), "have undermined the notion that the question presented in Baker is insubstantial." 755 F.3d at 1205. Lawrence held that the government could not lawfully

Searcy v. Strange, 81 F.Supp.3d 1285 {2015)

"demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime." Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. In Windsor, the Supreme Court struck down the federal definition of marriage as being between a man and a woman because, when applied to legally married same-sex couples, it "demean[ed] the couple, whose moral and sexual choices the Constitution protects." Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178-80 (2d Cir.2012) ("Even if Baker might have had resonance ... in 1971, it does not today.").
[1] Although the Eleventh Circuit Court of Appeals has not yet determined the issue, several federal courts of appeals that have considered Baker's impact in the wake ofLawrence and Windsor have concluded that Baker does not bar a federal court from considering the constitutionality of a state's ban on same-sex marriage. See, e.g., Bishop v. Smith, 760 F.3d 1070 (lOth Cir.2014); Kitchen, 755 F.3d 1193 (lOth Cir.2014);Lattav. Otter, 771 F.3d456 (9thCir.2014);Baskin v. Bogan, 766 F.3d648 (7th Cir.2014); Bosticv. Schaefer, 760 F.3d 352 (4th Cir.2014). Numerous lower federal courts also have questioned whether Baker serves as binding precedent following the Supreme Court's decision in Windsor. This Court has the benefit of reviewing the decisions of all of these other courts. "[A] significant majority of courts have found that Baker is no longer controlling in light of the doctrinal developments of the last 40 years." Jernigan v. Crane, 64 F.Supp.3d 1260, 1276, 2014 WL 6685391, *13 (E.D.Ark.2014) (citing Rosenbrahn v. Daugaard, 61 F.Supp.3d 845, 854-56 n. 5, 2014 WL 6386903, at *6-7 n. 5 (D.S.D. Nov. 14, 2014) (collecting cases that have called Baker into doubt)). The Court notes that the Sixth Circuit recently concluded that Baker is still binding precedent in DeBoer v. Snyder, 772 F.3d 388 (6th Cir.2014), but finds the reasoning ofthe Fourth, Seventh, Ninth, and Tenth Circuits to be more persuasive on the question and concludes that Baker does not preclude consideration of the questions presented herein. 1 Thus, the Court first addresses the merits of Plaintiffs' Due Process and Equal Protection claims, as those claims provide the most appropriate analytical framework. And if equal protection analysis decides this case, there is no need to address the Full Faith and Credit claim.
[2] Rational basis review applies to an equal protection analysis unless Alabama's *1289 laws affect a suspect class of individuals or significantly interfere with a fundamental

right. Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Although a strong argument can be made that classification based on sexual orientation is suspect, Eleventh Circuit precedence holds that such classification is not suspect. Lofton v. Secretary of Dep't. of Children and Family Services, 358 F.3d 804, 818 (11th Cir.2004). The post-Windsor landscape may ultimately change the view expressed in Lofton, however no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.
[3] [4] Laws that implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Careful review of the parties' briefs and the substantial case law on the subject persuades the Court that the institution of marriage itself is a fundamental right protected by the Constitution, and that the State must therefore convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest.
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men" and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswoldv. Connecticut, 381 U.S. 479,486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and of association, ML.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Planned Parenthood ofSE Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
[5] "Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny." Bostic v. Schaffer, 760 F.3d 352, 375 (4th Cir.2014). Strict scrutiny "entail[s] a most searching examination" and requires "the most exact connection between justification and classification." Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (internal quotations omitted). Under this standard, the defendant "cannot rest upon a generalized assertion as to the classification's relevance to its goals." Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

854 (1989). "The purpose ofthe narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate." Grutter v. Bollinger, 539 U.S. 306, 333, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).
[6] Defendant contends that Alabama has a legitimate interest in protecting the ties between children and their biological parents and other biological kin. 2 However, *1290 the Court finds that the laws in question are not narrowly tailored to fulfill the reported interest. The Attorney General does not explain how allowing or recognizing samesex 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 ofsame-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. Kitchen, 755 F.3d at 1222 ("As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants' interest in fostering biological reproduction within marriages.").

by opposite-sex parents. Yet Alabama's Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples. Such a law "humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor, 133 S.Ct. at 2694. Alabama's prohibition and non-recognition of same-sex marriage "also brings financial harm to children of same-sex couples." id at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Additionally, these laws further injures those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.
For all of these reasons, the court finds that Alabama's marriage laws violate the Due Process Clause and Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution.
III. Conclusion For the reasons stated above, Plaintiffs' motion for summary judgment (Doc. 21), is GRANTED and Defendant's motion for *1291 summary judgment (Docs. 47), is DENIED.
IT IS FURTHER ORDERED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975, § 30-1-19 are unconstitutional because they violate they Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
IT IS FURTHER ORDERED that the defendant is enjoined from enforcing those laws.

If anything, Alabama's prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by samesex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised

All Citations 81 F.Supp.3d 1285

Footnotes

1

This court also notes that the Supreme Court has granted certiorari in the DeBoer case, Bourke v. Beshear, - U.S.

- - , 135 S.Ct. 1041, 190 L.Ed.2d 908 (2015), limiting review to these two questions: 1) Does the 14th Amendment

require a state to license a marriage between two people of the same sex? and 2) Does the 14th Amendment require

Searcy v. Strange, 81 F.Supp.3d 1285 (2015)

a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and

performed out-of-state? The questions raised in this lawsuit will thus be definitively decided by the end of the current

Supreme Court term, regardless of today's holding by this court.

2

Although Defendant seems to hang his hat on the biological parent-child bond argument, Defendant hints that this is one

of many state interests justifying the laws in question and some of his arguments could be construed to assert additional

state interests that have commonly been proffered in similar cases. The court finds that these other interests also do

not constitute compelling state interests. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014) (finding that the following

interests neither individually nor collectively constitute a compelling state interest for recognizing same-sex marriages: (1)

the State's federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history

and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation,

and (5) promoting the optimal childrearing environment.).

Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EXHIBIT
i E --=----

JAMES N. STRAWSER and JOHN )

E. HUMPHREY,

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for )

the State of Alabama,

)

)

Defendant.

ORDER

This matter is before the court on Plaintiffs' motion for preliminary and permanent injunction. (Doc. 15). An evidentiary hearing was held and sworn

testimony was offered by Plaintiffs in support of their motion on December 18, 2014.

For the reasons stated below, the court finds that Plaintiffs are entitled to

preliminary injunctive relief.

The decision to grant or deny a preliminary injunction "is within the sound

discretion of the district court..." Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.

2002). This court may grant a preliminary injunction only if the plaintiff

demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage

the required injunction may cause the non-moving parties; and (4) the injunction

would not be adverse to the public interest. Id., 287 F.3d at 1329; see also

McDonald's Corp. v. Robertson, 147 F.3d. 1301, 1306 (11th Cir. 1998). "In this

2 4
Circuit, '[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ''burden of persuasion" ' as to the four requisites." McDonald's Corp., 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)(a preliminary injunction is issued only when "drastic relief' is necessary.
This case is brought by a same-sex couple, James Strawser and John Humphrey, who have been denied the right to a legal marriage under the laws of Alabama. The couple resides in Mobile, Alabama and participated in a church sanctioned marriage ceremony in Alabama. Strawser and Humphrey applied for a marriage license in Mobile County, Alabama, but were denied.
Strawser testified that he has health issues that will require surgery that will put his life at great risk. Strawser's mother also has health issues and requires assistance. Prior to previous surgeries, Strawser had given Humphrey a medical power of attorney, but was told by the hospital where he was receiving medical treatment that they would not honor the document because Humphrey was not a family member or spouse. Additionally, Strawser is very concerned that Humphrey be permitted to assist Strawser's mother in all of her affairs if Strawser does not survive surgery.
Plaintiffs contend that Alabama's marriage laws violate their rights to Due Process, Equal Protection and the free exercise of religion. This court has determined in another case, Searcy v. Strange, SDAL Civil Action No. 14-00208-CGN, that Alabama's laws prohibiting and refusing to recognize same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth
2

4
Amendment to the United States. In Searcy, this court found that the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act restrict the Plaintiffs' fundamental marriage right and do not serve a compelling state interest. The Attorney General of Alabama has asserted the same grounds and arguments in defense of this case as he did in the Searcy case. Although the Plaintiffs in this case seek to marry in Alabama, rather than have their marriage in another state recognized, the court adopts the reasoning expressed in the Searcy case and finds that Alabama's laws violate the Plaintiffs' rights for the same reasons. Alabama's marriage laws violate Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by prohibiting same-sex marriage. Said laws are unconstitutional.
As such, Plaintiffs have met the preliminary injunction factors. Plaintiffs' inability to exercise their fundamental right to marry has caused them irreparable harm which outweighs any injury to defendant. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights "unquestionably constitutes irreparable harm."). Moreover, Strawser's inability to have Humphrey make medical decisions for him and visit him in the hospital as a spouse present a substantial threat of irreparable injury. Additionally, "it is always in the public interest to protect constitutional rights." Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). Therefore, the Plaintiffs have met their burden for issuance of a preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.
3

4 4
Accordingly, the court hereby ORDERS that the Alabama Attorney General is prohibited from enforcing the Alabama laws which prohibit same-sex marriage. This injunction binds the defendant and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit same-sex marnage.
Defendant stated at the hearing that if the court were to grant Plaintiffs' motion, Defendant requests a stay of the injunction pending an appeal. As it did in the Searcy case, the Court hereby STAYS execution of this injunction for fourteen days to allow the defendant to seek a further stay pending appeal in the Eleventh Circuit Court of Appeals. If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period, this stay will be lifted on February 9, 2015.
DONE and ORDERED this 26th day of January, 2015. Is! Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
4

EXHIBIT

SUPREME COURI OF' ALABAMA
JUDICIAL BUILDING 300 DEXTER AVENUE MONTGOMERY, ALABAMA 36104·3741
(334) 229-0700
January 27,2015
Hon. Robert Bentley Governor of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130

CHIEF JUSTICE ROYS.MOORE
ASSOCIATE JUSTICES
LYNSTUART MICHAEL F. BOLIN TOM PARKER GLENN MURDOCK GREG SHAW JAMES ALLEN MAIN A. KELLI WISE TOMMY ELIAS BRYAN

Dear Governor Bentley:

The recent ruling of Judge Callie Granade of the United States District Court for the Southern District of Alabama has raised serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment. Art. I,§ 36.03, Ala. Canst. of 1901.

As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage. The people of this state have specifically recogirized in our Constitution that marriage is "[a] sacred covenant, solemnized between a man and a woman"; that"[a] marriage contracted between individuals of the same sex is invalid in this state"; and that "[a] union replicating marriage of or between persons of the same sex ... shall be considered and b·eated in all respects as having no legal force or effect in this state." Art. I, § 36.03(c), (b) & (g), Ala. Const. of1901.

The Supreme Court of Alabama has likewise described marriage as"a divine institution," imposing upon the parties "higher moral and religious obligations than those imposed by any mere human institution or government." Hughes v. Hughes, 44 Ala. 698, 703 (1870). In Smith v. Smith, 141 Ala. 590, 592,37 So. 638, 639 (1904), this Court again referred to marriage as a "sacred relation."

The laws of this state have always recognized the Biblical admonition stated by our Lord:

But from the beginning· of the creation God made them male and female. For this cause shall a man leave father and mother, and cleave

Page 1 of 3

to his wife; And they twain shall be one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. (Mark 10:6-9).
Even the United States Supreme Court has repeatedly recognized that 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; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (quoted in United States v. Bitty, 208 U.S. 393, 401 (1908)).
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that "reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
On December 26,1825, Thomas Jefferson wrote:
I see as you do, and with the deepest affliction, the rapid strides with which the federal branch of our governmentis advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact [U.S. Constitution], acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves, all functions foreign and domestic.
Letter to William Branch Giles, December 26,1825 (emphasis added).
Jefferson's words precisely express my sentiments on this occasion. Our State Constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States. Nothing in the United States Constitution grants to the federal government the authority to desecrate the institution of marriage. Indeed, the Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states,
Page 2 of3

are reserved to the states respectively, or to the people." U.S. Const. Amend. X. An infringement upon the definition of marriage affects all that have entered into it in the past as well as all who will enter in the future.
I am encouraged by the Alabama Probate Judges Association which has advised probate judges to follow Alabama law in refusing to license marriages between two members of the same sex. However, I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them. I would advise them that the issuance of such licenses would be in defiance of the laws and Constitution of Alabama. Moreover, I note that "United States district court decisions are not controlling authority in this Court." Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744 n.5 (Ala. 2009). See also Ex parte Johnson, 993 So. 2d 875, 886 (Ala. 2008) ("This Court is not bound by decisions of the United States Courts of Appeals or the United States District Courts."). As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.
I ask you to continue to uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity. Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.
With due respectto your authority and responsibility as Governor and Chief Executive of the State of Alabama, I am
Sincerely,
RoyS. Moore Chief Justice Alabama Supreme Court
Page3 o£3

Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 1 of 3
~IIII!!!E!~ XHI~BI~ T ~

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

I ~

CARl D. SEARCY and KIMBERLY )

MCKEAND, individually and as

)

parent and next friend of K.S., a

)

minor,

)

)

Plaintiffs,

)

vs.

) CIVIL ACTION NO. 14-0208-CG-N

)

LUTHER STRANGE, in his capacity )

as Attorney General for the State of )

Alabama,

)

)

Defendant.

ORDER CLARIFYING JUDGMENT

This matter is before the court on Plaintiffs' Request for Clarification that

was contained in their Objection and Response (Doc. 56) to Defendant's Motion to

Stay (Doc. 55).

On January 23, 2015, this court granted summary judgment in favor of

Plaintiffs in this lawsuit, declaring that Alabama's laws prohibiting same-sex

marriage and prohibiting recognition of same-sex marriages performed legally in

other states are unconstitutional. (Docs. 53-54). As part of the Judgment entered in

this case, the court specifically enjoined the Defendant from enforcing those laws.

(Doc. 54). Upon Defendant's motion, the court then stayed the order of injunction

and judgment for 14 days. (Doc. 59). If no action is taken by the Eleventh Circuit

Court of Appeals to extend or lift the stay within that time period, this court's stay

will be lifted on February 9, 2015.

1

Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 2 of 3
Plaintiffs have asked for clarification of this court's injunction and judgment based on statements made to the press by the Alabama Probate Judges Association ("APJA")1 that despite this court's ruling, they must follow Alabama law and cannot issue marriage licenses to same-sex couples. (Doc. 56, pp. 6-8). According to the local news, prior to this court's entry of a 14 day stay, the APJA advised its members not to issue marriage licenses to same-sex couples. 2 A representative of the APJA reportedly stated that this court's decision was limited to the same-sex couple that filed the case and that the only party who was enjoined from enforcing the laws in question was Attorney General Strange.
Because the court has entered a stay of the Judgment in this case, neither the named Defendant, nor the Probate Courts in Alabama are currently required to follow or uphold the Judgment. However, if the stay is lifted, the Judgment in this case makes it clear that ALA. CONST. ART. I,§ 36.03 and ALA. CODE§ 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Commissioners of Mobile County, Alabama.
1 The court notes that on January 25, 2015, the APJA moved for leave to appear as amicus curiae in support of Defendant's motion for stay. (Doc. 58). 2 See http://www.al.com/news/index.ssf/2015/01/alabama probate association ju.htmlincart related stories and http://www.al.com/news/mobile/index.ssf/2015/0l/alabama probate court judges ga y marriage.html - incart river
2

Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 3 of 3
As Judge Hinkle of the Northern District of Florida recently stated when
presented with an almost identical issue:
History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. here 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.
Brenner v. Scott, 2015 WL 44260 at *1(N.D. Fla. Jan. 1, 2015).
For the reasons stated above, Plaintiff's motion to clarify (Doc. 56), is
GRANTED and the Judgment in this case is CLARIFIED as set out above.
DONE and ORDERED this 28th day of January, 2015.
Is/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
3

EXHIBIT
I H-.

RoyS.Moore ChiefJustice

ADMINISTRATIVE OFFICE OF COURTS
300 Dexter Avenue Montgomery, Alabama 36104-3741
(334) 954-5000

February 3, 2015

Rich Hobson Administradve Director ofCourts

Re: Federal Intrusion into State Sovereignty
Dear Probate Judges of Alabama:
Attached hereto is a Memorandumwithregard to the orders of United States District Judge Callie Granade dated January 23 and January 26, 2015, and the subsequent "Order Clarifying Judgment" dated January 28. The Memorandum presents substantial authority in support of the proposition that state courts are not bound by the opinions of lower federal courts. Furthermore, nothing in the orders of Judge Granade requires Alabama probate judges to issue marriage licenses that are illegal in Alabama. Pursuant to Rule 65(d)(2) of the Federal Rules of Civil Procedure, Alabama probate judges are not subject to those orders because the probate judges are not parties or associated with any party in those cases. I further submit that the federal district court lacked jurisdiction over these cases under the ffieventh Amendment to the United States Constitution, as explained in the appendix attached to the memorandum.
My letter to Governor Robert Bentley on January 27, 2015, expressed ''serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment, Art. I, § 36.03, Ala. Const 1901.''
The day after my letter was released, Judge Granade issued a "clarifying" order that warned the probate judges of this state that "if the stay is lifted, the Judgment in this case makes it clear, that Ala. Const. Art. I, § 36.03 and Ala. Code § 30-1-19 are unconstitUtional." Yet, paradoxically, that order of clarification quoted from an opinion of a Florida federal judge that stated: "The preliminary injunction now in effect thus does not require the Oerk to issue licenses to other applicants." (Emphasis added). Neither Judge Granade's orders nor her "clarification" ordered the state officials who are charged with the responsibility to issue marriage licenses to do anything. Consequently, the injunction and the stay or the lifting thereof can only apply to the sole defendant, the Alabama Attorney General.

The attached Memorandum demonstrates that both state and federal law recognize the principle that state courts are not bound by the judici~l opinions of federal district or appeals courts on questions of federal constitutional law. While state courts may consider as "persuasive authority" the opinions of federal courts that are beneath the United States Supreme Court (referred to as lower or "inferior Courts" in Article III, Sec. 1 of the U.S. Constitution), the state courts are not bound by such rulings.
Under the principle of 11dual sovereignty," the authority of state courts to interpret the federal Constitution is equal to that of the lower federal courts for the simple reason that both state and federal courts are equally sworn to uphold the United States Constitution. Only the United States Supreme Court can be the final arbiter of constitutional disputes between state and federal courts.
While my disagreement with Judge Granade's orders in the cases attacking Alabama marriagelawhas beencriticized as 11religious," "defiant," and"unethical," my actions are entirely consistent with my responsibility as Chief Justice of the Alabama Supreme Court. As Administrative Head of the Unified Judicial System, I am charged with the responsibility "to take affirmative and appropriate action to corrector alleviate any condition or situation adversely affecting the administration of justice within this state."§ 12-2-30(b)(7), Ala. Code 1975. I am further charged with the obligation to "take any such further or additional action as may be necessary for the order!y administration ofjustice within this state." § 12-2-30(b)(8), Ala. Code 1975. Interference with the right of state courts to make independent judgments based on their own view of the U.S. Constitution is a violation of state
sovereignty. Moreover, the amicus curiae briefs of Governor Robert Bentley and of
the Alabama Probate Judges Association filed with the Eleventh Circuit Court of Appeals make itvery clear that"substantial" and even"mass" confusion will result if Judge Granade1s orders are construed to apply to the entire state court system. Pursuant to my authority under Alabama law, I submit this advisory letter and memorandum as appropriate and necessary to the orderly administration of the Alabama Unified Judicial System and to warn against any unlawful intrusion into the jurisdiction and sovereignty of this state and its courts.
The authority of the federal judiciary to redefine marriage is now before the United States Supreme Court because a conflict exists among the federal Courts of Appeals on this issue. The United States Constitution contains neither the word "family'' nor the word "marriage." The power to redefine these fundamental institutions of society is not enwnerated inany of the provisions of Article 1, Section 8. Because the power to define marriage is not delegated to the United States, it is retained by the people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
Page 2of4

respectively, ar to the people." Amend. X, U.S. Canst. (emphasis added).
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." Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (quoted in United States v. Bitty, 208 U.S. 393, 401 (1908)). The Alabama Supreme
Court has described marriage as a "divine institution" imposing upon the parties "higher moral and religious obligations than those imposed by any mere human
institution or government." Hughes v. Hughes, 44 Ala. 698, 703 (1870). In Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 639 (1904), our Supreme Court referred to
marriage as a"sacred relation." More recently, the people of Alabama amended our state constitution to provide that marriage is a "sacred covenant, solemnized between a man and a woman" and that a" marriage contracted between individuals of the same sex is invalid in this state." Art. 1 § 36.03, Ala. Const. 1901.
The right to enter into the instituti<:m 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 certam rights, shall not be construed to deny or disparage others retained by the people."
The freedom to marry is an "unalienable right." The Declaration of Independence states: "We hold these truths to be self evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable rights, that
among these are Life, Liberty, and the Pursuit of Happiness ...." Even Judge Granade's order, quoting Loving v. Virginia, 388 U.S. 1, 11 (1967), acknowledges that "'[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit ofhappiness by free men' and women," No court or
other human authority should pretend to redefine that right. Such an enterprise would disregard the Bill of Rights contained in the United States Constitution as well as the Organic Law of our Country.
Lower federal courts are without authority to impose their own interpretationoffederal constitutional law upon the state courts. Furthermore,they have absolute!y 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.
I urge you to uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability, So Help You God!
Page3 o£4

Submitted for your consideration this 3rd day of February, 2015.
~ 'R}T:MOOre
Chief Justice Alabama Supreme Court
Page4 o£4

TO: FROM:
-
RE: Date:

MEMORANDUM
Alabama Probate Judges Chief Justice Roy S. Moore Sanctity of Marriage ruling February 3, 2015

The purpose of this memorandum is to provide guidance to the probate judges of Alabama as to their duties under Alabama's Sanctity of Marriage Amendment ("the Amendment"), Art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act ("the Act"), § 30-1-19, Ala. Code 1975, in light of the recent orders of the United States District Court for the Southern District of Alabama. A news story has quoted the Honorable Greg Norris, President of the Alabama Probate Judges Association, as saying: "I don't think I have had a week like this in my life. " 1 I hope this memorandum will assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.

1Brian Lawson, With Alabama Same-sex Marriage Decision Looming, Some Probate Judges Stop Doing Weddings, AL.com (Jan. 29, 2015).

I. Background On Friday, January 23, 2015, the Honorable Callie Granade, a judge of the United States District Court for the Southern District of Alabama, ruled in Searcy v. Strange (No. 1:14-208-CG-N) (S.D. Ala. Jan. 23, 2015), that the Amendment and the Act were unconstitutional. On January 25, in response to a motion by defendant Luther Strange, the Attorney General of Alabama, Judge Granade granted a stay of her ruling until February 9 to permit the United States Court of Appeals for the Eleventh Circuit to consider imposing a stay pending appeal. On February 3, the Eleventh Circuit declined to enter the requested stay. On Monday, January 26, Judge Granade entered a preliminary injunction in Strawser v. Strange (No. 1:14-CV424-CG-C) (S.D. Ala. Jan. 26, 2015), another case that challenged the constitutionality of the Amendment and the Act. Two days later, on January 28, Judge Granade issued an "Order Clarifying Judgment" in Searcy to address whether her order of January 23 bound "the Probate Courts in Alabama."
2

II. Administrative Authority of the Chief Justice As administrative head of the Unified Judicial System, 2 I have a constitutional and a statutory obligation to provide guidance to the probate judges in this state as to their administrative responsibilities under these recent orders. 3 In that capacity I am authorized and empowered:

(7) To take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice
within the state.

(8) To take any such other, further or additional action as may be necessary for the orderly
administration of justice within the state, whether or not enumerated in this section or elsewhere.

§ 12-2-30(b), Ala. Code 1975.

In my estimation, Judge Granade's orders in Searcy and

Strawser have created a "situation adversely affecting the

administration of justice within the state" that requires me

"[t]o take

action for the orderly administration of

justice within the state."

2"The chief justice of the supreme court shall be the administrative head of the judicial system." Art. VI, § 149, Ala. Const. 1901.
3The probate judges are part of Alabama's unified judicial system. Art. VI, § 139(a), Ala. Const. 1901.
3

III. Analysis
A. Alabama probate judges are not bound by the orders in Searcy and Strawser.
In Searcy, an adoption case, Judge Granade enjoined the
Attorney General from enforcing the Alabama marriage laws that
prohibit recognition of same-sex unions. In Strawser, Judge
Granade granted a preliminary injunction against enforcement
of these same laws. Her order included standard language
describing the scope of an injunction. See Rule 65, Fed. R.
Civ. P.
[T]he court hereby ORDERS that the Alabama Attorney General is prohibited from enforcing the Alabama laws which prohibit same-sex marriage. This injunction binds the defendant and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit same-sex marriage.
Order of Jan. 26, 2015, at 4. The Strawser order is of more
significance for Alabama probate judges than the orders in the
Searcy case because Strawser is a case about issuing same-sex
marriage licenses in Alabama. Therefore, it merits careful
scrutiny.
The Strawser order tracks the language of Rule 65(d) (2),
Fed. R. Civ. P.:
Persons Bound. The order binds only the following who receive actual notice of it by personal service
4

or otherwise: (A) the parties; (B) the parties' officers, agents, servants,
employees, and attorneys; and (C) other persons who are in active concert or
participation with anyone described in Rule 65 (d) (2) (A) or (B) Since no Alabama probate judges are parties to the Strawser case (or to the Searcy case), the only question to resolve in terms of their being bound by the court's order of January 2 6 is whether they, or any of them, are officers, agents, servants or employees of the Attorney General or "are in active concert or participation" with the Attorney General or his officers, agents, servants, and employees. "[L]ike the Governor, the attorney general is an officer of the executive branch of government." Ex parte State ex rel. James, 711 So. 2d 952, 964 n.5 (Ala. 1998). See also McDowell v. State, 243 Ala. 87, 89, 8 So. 2d 569, 570 (1942) ("The Attorney General is a constitutional officer and a member of the Executive Department of the State government."); Art. V, § 112, Ala. Const. 1901 ("The executive department shall consist of a governor, lieutenant governor, attorney-general, .... "). Probate judges are members of the judicial branch of government. "There shall be a probate court in each county
5

which shall have general jurisdiction of orphans' business,
and of adoptions, and with power to grant letters
testamentary, and of administration, and of guardianships, and
shall have such further jurisdiction as may be provided by law
" Art. VI, § 144, Ala. Const. 1901. Probate judges are
elected to six-year terms by a vote of the people in each
county. § 12-13-30, Ala. Code 1975.
Alabama has strict separation of powers between the
branches of government. "The powers of the government of the
State of Alabama shall be divided into three distinct
departments, each of which shall be confided to a separate
body of magistracy, to wit: Those which are legislative, to
one; those which are executive, to another; and those which
are judicial, to another." Art. III, § 42, Ala. Const. 1901.
In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
Art. III, § 43, Ala. Const. 1901.
As a matter of constitutional and statutory law,
therefore, Alabama probate judges are not officers, agents, or
6

servants of the Attorney General. The probate judges are

members of the judicial branch; the Attorney General is a

member of the executive branch. The Attorney General is bound

by the constitutional command that "the executive shall never

exercise the

judicial powers." The probate judges are

bound by the constitutional command that "the judicial shall

never exercise the

executive powers." A constitutional

firewall separates the authority of the Attorney General from

that of the probate courts. The probate judges are not in any

sense agents or servants of the Attorney General

The only remaining question, therefore, to resolve in

determining whether Alabama probate judges are bound by Judge

Granade's orders in Searcy and Strawser is whether they are

"in active concert or participation" with the Attorney General

or any of his officers, agents, servants or employees in

enforcing the Amendment or the Act. Again, the answer is "no"

for the simple reason that neither the Attorney General nor

any of his agents has any authority over the judges of

probate. As independent constitutional officers of the

judicial branch of government who are directly elected by the

people and shielded from executive influence by Sections 42

and 43 of the Alabama Constitution, the judges of probate are

7

neither beholden to the Attorney General for their offices nor subject to his control in the execution of their duties.
The federal court in Mobile has no authority to ignore the internal structure of state government. How a state government structures its powers is "a decision of the most fundamental sort for a sovereign entity." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). A state has "constitutional · responsibility for the establishment and operation of its own government." Id. at 462. "Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign." Id. at 460.
Finally, no probate judge was a defendant in the cases under discussion except for the Honorable Don Davis who was dismissed with prejudice before issuance of the court's orders. Judge Granade's orders apply to the parties to the case, but under a straightforward application of Rule 65(d) (2), Fed. R. Civ. P., those orders have no effect on the probate judges of Alabama. "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762 (1989).
Furthermore, as stated in the Appendix, Judge Granade's
8

orders are improper because the Eleventh Amendment prohibits the Attorney General from being a defendant in these cases. ~ The probate judges in their judicial capacity do not have
to defer to decisions of a federal district court. Having determined based on the above analysis that Alabama probate judges are not bound by Judge Granade's rulings in Searcy and Strawser, I would now like to give you a general perspective on the precedential effect in state courts of lower-federal-court decisions on constitutional questions. Because the United States Constitution provides that "the Judges in every State shall be bound thereby," Art. VI, cl. 2, U.S. Const., state judges are competent to adjudicate federal constitutional issues and indeed must do so when required in the exercise of properly acquired jurisdiction. Because federal courts also adjudicate federal-law issues, the question has arisen whether state judges are in any sense bound by lower federal court decisions on constitutional questions. Almost universally the answer has been "no" for the simple reason that federal district and circuit courts have no appellate jurisdiction over state courts. "A decision of a federal district court judge is not binding precedent in either a different judicial district, the
9

same judicial district, or even upon the same judge in a different case." Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore's Federal Practice § 134.02[1][d], p. 134-26 (3ded. 2011)). Although decisions of state courts on federal questions are ultimately subject to review by the United States Supreme Court, 2 8 U.S. C. § 1257 (a), as are decisions of federal courts, neither "coordinate" system reviews the decisions of the other. As a result, state courts may interpret the United States Constitution independently from and even contrary to the decisions of federal courts.
Numerous Alabama cases confirm this reasoning. " [I] n determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority." Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala. 2004). See also Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 748 (Ala. 2009) (noting that "United States district court decisions are not controlling authority in this Court"); Ex parte Hale, 6 So. 3d 452, 462 (Ala. 2008), as modified on denial of reh'g (Oct. 10, 2008)
10

("[W]e are not bound by the decisions of the Eleventh

Circuit."); Ex parte Johnson, 993 So. 2d 875, 886 (Ala. 2008)

("This Court is not bound by decisions of the United States

Courts of Appeals or the United States District Courts.");

Buist v. Time Domain Corp., 926 So. 2d 290, 297 (Ala. 2005)

("United States district court cases

can serve only as

persuasive authority."); Amerada Hess v. Owens-Corning

Fiberglass, 627 So. 2d 367, 373 n.1 (Ala. 1993) ("This Court

is not bound by decisions of lower federal courts.");

Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 n.2

(Ala. 1991) ("Decisions of federal courts other than the

United States Supreme Court, though persuasive, are not

binding authority on this Court.").

A recent detailed study of the courts of all 50 states

and the District of Columbia determined that 46 states and the

District of Columbia adopt the position that the precedents of

lower federal courts are not binding in their jurisdictions.

Wayne A. Logan, A House Divided: When State and Lower Federal

Courts Disagree on Federal Constitutional Rights, 90 Notre

Dame L. Rev. 235, 280-81 (2014). The position of three other

states is uncertain. Only one state (Delaware) defers to the

constitutional decisions of lower federal courts. Id. at 281.

11

Federal courts have recognized that state-court review of

constitutional questions is independent of the same authority

lodged in the lower federal courts. "In passing on federal

constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing

authority of the Supreme Court." United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970).

Although consistency between state and federal

courts is desirable in that it the law and prevents litigants

promotes respect for from forum-shopping,

there is nothing inherently offensive about two

sovereigns reaching different legal conclusions.

Indeed, federal

such results were system, and neither

contemplated by our sovereign is required

to, nor expected to, yield to the other.

Surrick v. Killion, 449 F. 3d 520, 535 (3rd Cir. 2006).

The United States Supreme Court has acknowledged that state courts "possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial

decisions that rest on their own interpretations of federal

law." Asarco Inc. v. Kadish, 490 U.S. 605, 617 justices of the United States Supreme Court writings have elaborated on this principle.

(1989). Two in special

The Supremacy Clause demands that state law yield to

12

federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482, n. 3 (1974) (Rehnquist, J., concurring) (noting that a lowerfederal-court decision "would not be accorded the stare decisis effect in state court that it would have in a subsequent proceeding within the same federal jurisdiction. Although the state court would not be compelled to follow the federal holding, the opinion might, of course, be viewed as highly persuasive . "). For the above reasons, I am of the opinion that an Alabama probate judge may deliver his own considered opinion, subject to review, on the issues raised in Searcy and Strawser and is not required to defer to federal district and circuit court rulings on the same questions.
IV. Conclusion In fulfillment of my obligations as Administrative Head of the Unified Judicial System, I have herein offered you my considered guidance on how the recent orders from the United
13

States District Court in Mobile affect your duties as an Alabama probate judge. Because, as demonstrated above, Alabama probate judges are not bound by Judge Granade's orders in the Searcy and Strawser cases, they would in my view be acting in violation of their oaths to uphold the Alabama Constitution if they issued marriage licenses prohibited under Alabama law.
14

APPENDIX The reasoning employed by Judge Granade in dismissing Governor Bentley with prejudice on August 28, 2014, namely that his general authority to enforce the laws was insufficient to make him a defendant, also applies to Attorney General Strange, who is the sole remaining defendant in both Searcy and Strawser.
I.
How the Alabama Attorney General came to be the sole defendant in each case
A. Searcy
The complaint in Searcy named five defendants in both their individual and official capacities: Robert Bentley, Governor; Luther Strange III, Attorney General; Don Davis, Mobile County Judge of Probate; Catherine Donald, State Registrar of Vital Statistics; and Nancy Buckner, Commissioner of the Department of Human Resources.
On May 30, 2014, Judge Davis filed a motion to dismiss. He explained that in December 2011 Cari Searcy had filed in his court a petition for a step-parent adoption of the son of Kimberly McKeand. See § 26-10A-27, Ala. Code 1975. In April 2012, Judge Davis denied the petition on the ground that Alabama law did not recognize Searcy as McKeand's spouse.
15

Searcy appealed, and the Court of Civil Appeals affirmed. In re Adoption of K.R.S., 109 So. 3d 176 (2012). Once his decision was appealed, Judge Davis argued, he lost jurisdiction of the case and was thus unable to provide relief to the plaintiffs.

On June 3, 2014, Commissioner Buckner filed a motion to

dismiss, alleging lack of standing, namely that Searcy had

suffered no injury traceable to Buckner's actions that a court

order could redress. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). In her complaint Searcy alleged that

Buckner "has the authority and power to

amend birth

certificates to reflect the adoption of a child." However, in

her motion to dismiss, Buckner explained that such authority

resides solely with the Department of Vital Statistics.

On June 6, 2014, Governor Bentley and Attorney General

Strange filed a joint motion to dismiss. The motion argued

that Governor Bentley's general authority over the executive

branch was insufficient to name him as a defendant when he had

no direct enforcement responsibility for the Amendment, the

Act, or the adoption statute. Merely suing Governor Bentley as

a representative of the State was no different than suing the

State itself, an action forbidden by the Eleventh Amendment.

16

While seeking a dismissal of all claims against Governor Bentley, the Attorney General agreed to remain in the suit in his official capacity "to defend the validity of Alabama's marriage laws."
On June 24, 2014, the plaintiffs responded to the motions to dismiss. They volunteered to dismiss all claims against Davis, Donald, and Buckner and to dismiss the individual capacity claims against Bentley and Strange. However, they argued that the official-capacity claims against both Bentley and Strange should remain in the case. On July 14, 2014, Davis and the plaintiffs filed a joint stipulation for Davis's dismissal. On July 18, the court entered an order to dismiss Davis with prejudice if no other party objected by July 25.
On July 30, 2014, Magistrate Judge Katherine Nelson acknowledged the stipulation of dismissal of all claims against Davis, Donald, and Buckner. She also recommended granting Governor Bentley's motion to dismiss on the ground that his relationship to the acts complained of was "'too attenuated to establish that he was responsible for' implementation of the challenged laws." Report and Recommendation of July 30, 2014 (quoting Women's Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003)). Judge
17

Granade adopted the Magistrate's recommendation and, on August 28, dismissed with prejudice the claims against Bentley, Buckner, and Donald. The only remaining defendant in the case was the Attorney General in his official capacity. B. Strawser

Because the complaint in Strawser named "the State of Alabama" as the sole defendant, the Attorney General filed a motion to dismiss on the ground of sovereign immunity. In an order dated October 21, 2014, Magistrate Judge William E. Cassady, providing free legal advice, advised the Strawser plaintiffs

that rather than filing a substantive response in

opposition to the defendant's motion to dismiss,

they may well desire to respond by filing a motion

to dismiss the State of Alabama and substitute as

the proper defendant

Luther Strange, in his

official capacity as the Attorney General of the

State of Alabama.

The order contained a detailed footnote advising these pro-se plaintiffs that "[t]he Eleventh Amendment bars suits against an unconsenting State by one of its citizens." The footnote included as supporting authority three citations and parenthetical supporting quotations from United States Supreme Court cases. Order of Oct. 21, 2014, at 1 n.1. In a second footnote, Magistrate Cassady continued the plaintiffs' legal

18

education by explaining that "'official-capacity actions for prospective relief are not treated as actions against the State."' Order of Oct. 21, 2014, at 2 n.2 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). Dutifully following this advice from the court, the plaintiffs on November 13, 2014 filed a "Motion to Amend Complaint and Change Defendant." The Attorney General did not object to the motion.
Thus, by dismissal of all defendants except the Attorney General in Searcy, and the substitution, with court assistance, of the Attorney General for the State of Alabama in Strawser, Luther Strange in his official capacity became the sole defendant in each case.
II. The Attorney General is not a proper defendant in these cases The issuance of marriage licenses in Alabama is controlled by Chapter 1 ("Marriage") of Title 30 ("Marital and Domestic Relations"). Section 30-1-9, Ala. Code 1975, states: "No marriage shall be solemnized without a license. Marriage licenses may be issued by the judges of probate of the several counties." The duty is discretionary because certain prerequisites must be satisfied before a license may be issued, such as, where applicable, the age and parental
19

consent requirements of § 30-1-4 & -5, Ala. Code 1975. The probate judge must maintain a register of all licenses issued, § 30-1-12, Ala. Code 1975, which is to include certificates of solemnization received from those who perform weddings. § 301-13, Ala. Code 1975. "It is the duty of the judge of probate to give notice to the district attorney of all offenses under this chapter."§ 30-1-18, Ala. Code 1975. "No marriage license shall be issued in the State of Alabama to parties of the same sex."§ 30-1-19(d), Ala. Code 1975.
By contrast to the exclusive statutory duty of probate judges to issue and record marriage licenses, and to monitor this process, including solemnizations, for offenses, the Attorney General has no duties in this area.
As an officer of the State, the Attorney General shares the immunity of the State from private law suits in federal court. "[T]he Eleventh Amendment prohibits suits against state officials where the state is, in fact, the real party in interest." Summit Medical Associates, P.C. v. Pryor, 180 F. 3d 1326, 1336 (11th Cir. 1999). "The general rule is that relief sought nominally against an officer ' is in fact against the sovereign if the decree would operate against the latter." Hawaii v. Gordon, 373 U.S. 57, 58 (1963). An exception exists
20

to this rule for actions taken by state officials that violate the Constitution. "The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). This principle, first articulated in Ex parte Young, 209 U.S. 123 (1908), "has not been provided an expansive interpretation." Pennhurst, 465 U.S. at 102. Actions for damages are precluded, but generally prospective actions for declaratory and injunctive relief are permitted.
Nonetheless, a key requirement of an Ex parte Young action against a state official is that "such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party." 209 U.S. at 157. The Court elaborated:
"In the present case, as we have said, neither of the State officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the
21

otbtaqosealShhiyfptuxtbtteatepaeetioptaigictlsurrfrineituanueniitdtvondteaeiiiwinnodayssvotgsatsna.ioenemsd,gnoTuetpoefthanah,efnitelaincrasentbsol,rSvaoseanwapopltnlbasleblo,rsvttueruig.iednoi"tlteinsdmyuuctnggiitsioebpigthrofehltjaentulttilaihhaasdnwteelirshtvsceeaoal,Ueipnatarnwsremaylieenantoohs,nyfwndceoedehodnrycccicnetochowettvchuahnemhearretrsinmngethmciinenhaseeaiydottlnnteatcta,bnStwattettohitnwwelioafnetyraritnhoayte,hwstisouiftiehbotuotaiidhsneetrstf

209 U.S. at 157 {quoting Fitts v. McGhee, 172 U.S. 516, 530 {1899)).

The situation described in Ex parte Young is exactly what has occurred in this case. The Alabama Attorney General does not hold a "special relation to the particular statute alleged to be unconstitutional," nor is he "expressly directed to see to its enforcement." Those duties and responsibilities lie with the judges of probate in the judicial branch. In the passage that immediately precedes the one quoted in Ex parte Young, the Court in Fitts underscored this point:

It is to be observed that neither General of Alabama nor the Solicitor of Judicial Circuit of the State appear charged by law with any special duty i with the act of February 9, 1895.

the Attorney the Eleventh to have been n connection

STinhtdaetireve,idiustoalasp,wreivdheeonldtdiinftghfeemreo,nfcfuiencdibaeerltwtepheoensistaaionsncustiiot nuangdoaefirnasnat 22

unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State.
Fitts v. McGhee, 172 U.S. at 529-30. Recapping its discussion of Fitts, the court in Ex parte Young stated: "As no state officer who was made a party bore any close official connection with the [act at issue], the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done." 209 U.S. at 156 (emphasis added)
Making the Attorney General, who is not the official chiefly responsible for enforcing the marriage laws, the sole defendant in this case was a convenient means of making the State of Alabama the defendant, a methodology condemned by Ex parte Young as unconstitutional under the Eleventh Amendment. Because both Searcy and Strawser were in substance actions against the State rather than against one of its officers, the United States district court lacked jurisdiction and its judgment is void. The tenor of Judge Granade's orders indicates that she intends the orders to be applicable to all
23

?
state officials merely because the Attorney General is the defendant. Such an assumption violates the Eleventh Amendment. "Holding that a state official's obligation to execute the laws is a sufficient connection to the enforcement of a challenged statute would extend Young beyond what the Supreme Court has intended and held." Children's Healthcare Is A Legal Duty v. Deters, 92 F. 3d 1412, 1416 (6th Cir. 1996).
The Tenth Circuit in a very similar case came to the same conclusion. Two women who desired to be married to each other filed an action against the Governor and the Attorney General of Oklahoma seeking to have that state's marriage amendment declared unconstitutional. The Tenth Circuit held that they lacked standing to sue these officials. "[T]he Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce." Bishop v. Oklahoma, 333 F. App'x 361, 365 (lOth Cir. 2009) (unpublished) . Noting that marriage licenses in Oklahoma were issued by district-court clerks who were part of the judicial branch, the court stated: "Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma's government has no authority to
24

issue a marriage license or record a marriage." 333 F. App'x at 365. Stating that "[t]hese claims are simply not connected to the duties of the Attorney General" and citing the specificity requirement of Ex parte Young, the court ordered dismissal of the claims against the Attorney General for lack of subject-matter jurisdiction under the Eleventh Amendment. Id.
In a later published case the Tenth Circuit noted that the holding in Bishop that the Attorney General was not a proper defendant in a challenge to Oklahoma's prohibition on same-sex marriage "turned on the conclusion that marriage licensing and recognition in Oklahoma were 'within the administration of the judiciary. '" Kitchen v. Herbert, 755 F.3d 1193, 1202 (lOth Cir. 2014). The parallels with Searcy and Strawser are too obvious to require elaboration.
The Attorney General's agreement to litigate this case with himself as the sole defendant cannot confer subjectmatter jurisdiction that is otherwise not present. "The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties." American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 (1951) (emphasis added). '"It
25

needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.'" Id. at 18 n .17 (quoting People's Bank v. Calhoun, 102 U.S. 256, 260-61 (1880)). See also Boumatic, L.L.C. v. Idento Operations, BV, 759 F. 3d 790, 793 (7th Cir. 2014) ("Litigants cannot confer subject-matter jurisdiction by agreement or omission .... ''); SmallBizPros, Inc. v. MacDonald, 618 F. 3d 458, 464 n.4 (5th Cir. 2010) . ("[P]arties cannot confer jurisdiction by
agreement where it otherwise would not lie . . . .II ) .
Further, because the Attorney General neither caused the plaintiffs' alleged injuries nor is able to redress them, the parties also lack standing to sue him as a defendant. "To have standing the plaintiffs must demonstrate injury in fact, causation, and redressability." I.L. v. Alabama, 739 F.3d 1273, 1278 (11th Cir. 2014). Accordingly, the federal court in Mobile lacked jurisdiction on this basis also. Alabama law agrees with these propositions:
"Actions or opinions are denominated 'advisory,'" and, therefore, not justiciable, "where, by reason of inadequacy of parties defendant, the judgment could not be sufficiently conclusive." E. Borchard, Declaratory Judgments 31 (1934) (emphasis added). "'Actions for declaratory judgments brought by individuals to test or challenge the propriety of public action often fail
26

on this ground, or other person special duties

... because selected as in relation

the ... public officer
a defendant has ... no to the matters which

would be affected by any eventual judgment. '" Rogers

v. Alabama Civ. App.

Bd. of 1980)

Educ., 392 (emphasis

So.2d 235, 237 (Ala. added) (quoting E.

Borchard, Declaratory Judgments 76 (2d ed. 1941)).

"'The absence parties is in

of adversary or the correct adversary principle fatal. A mere difference of

opinion or disagreement or argument on a legal

question affords inadequate ground for invoking the

judicial power.'" Id. (emphasis added) .

Stamps v. Jefferson County Bd. of Educ., 642 So. 2d 941, 944

(Ala. 1994) (emphasis in original) .

27

EXHIBIT
II
STATE 01' ALABAMA -- JUDICIAL SYSTEM ADMINISTRATIVE ORDER 01' THE
CHIEF JUSTICE OF THE SUPREME COURT
WHEREAS, pursuant to Article VI, Section 149, of the Constitution of Alabama, the Chief Justice of the Supreme Court of Alabama is the administrative head of the judicial system; and
WHEREAS, pursuant to § 12-2-30 (b) (7), Ala. Code 1975, the Chief Justice is authorized and empowered to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state"; and
WHEREAS, pursuant to § 12-2-3 0 (b) (8) , Ala. Code 1975, the Chief Justice is authorized and empowered to "take any such other, further or additional action as may be necessary for the orderly administration of justice witbin the state, whether or not enumerated in this section or elsewhere"; and
WHEREAS, pursuant to Article VI, Section 139(a), of the Constitution of Alabama, the Probate Judges of Alabama are part of Alabama's Unified Judicial System; and
WHEREAS, pursuant to Article XVI, Section 279, of the Constitution of Alabama, the Probate Judges of Alabama are bound by oath to "support the Constitution of the United States, and the Constitution of the State of Alabama"; and
WHEREAS, as explained in my Letter and Memorandum to the Alabama Probate Judges, dated February 3, 2015, and incorporated fully herein by reference, the Probate Judges of Alabama are not bound by the orders of January 23, 2015 and January 28, 2015 in the case of Searcy v. Strange (No. 1:14-208-CG-N) (S.D. Ala.) or by the order of January 26, 2015 in Strawser v. Strange (No. 1:14-CV424-CG-C) (S.D. Ala.) ; and
WHEREAS, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the aforementioned orders bind only the
000006

Alabama Attorney General and do not bind the Probate Judges of Alabama who, as members of the judicial branch, neither act as agents or employees of the Attorney General nor in concert or participation with him; and
WHEREAS, the Attorney General possesses no authority under Alabama law to issue marriage licenses, and therefore, under the doctrine of Ex parte Young, 209 U.S. 123 (2008), lacks a sufficient connection to the administration of those laws; and
WHEREAS, the Eleventh Amendment of the United States Constitution prohibits the Attorney General, as a defendant in a legal action, from standing as a surrogate for all state officials; and
WHEREAS, the separation of powers provisions of the Alabama Constitution, Art. III, §§ 42 and 43, Ala. Const. 1901, do not permit the Attorney General, a member of the executive branch, to control the duties and responsibilities of Alabama Probate Judges; an4
WHEREAS, the Probate Judges of Alabama fall under the direct supervision and authority of the Chief Justice of the Supreme Court as the Administrative Head of the Judicial Branch; and
WHEREAS, the United States District Court for the Southern District of Alabama has not issued an order directed to the Probate Judges of Alabama to issue marriage licenses that violate Alabama law; and
WHEREAS, the opinions of the United States District Court for the Southern District of Alabama do not bind the state courts of Alabama but only serve as persuasive authority; and
WHEREAS, some Probate Judges have expressed an intention to cease issuing all marriage licenses, others an intention to issue only marriage licenses that conform to Alabama law, and yet others an intention to is sue marriage licenses that violate Alabama law, thus creating confusion and disarray in the administration of the law; and
2
000007

WHEREAS, the Alabama Department of Public Health has redrafted marriage license forms in contradiction to the public statements of Governor Bentley to uphold the Alabama Constitution, and has sent such forms to all Alabama Probate Judges, creating further inconsistency in the administration of justice; and
WHEREAS, cases are currently pending before The United States District Court for the Middle District of Alabama and the United States District Court for the Northern District of Alabama that could result in orders that conflict with those in Searcy and Strawser, thus creating confusion and uncertainty that would adversely affect the administration of justice within Alabama; and
WHEREAS, if Probate Judges in Alabama either issue marriage licenses that are prohibited by Alabama law or recognize marriages performed in other jurisdictions that are not legal under Alabama law, the pending cases in the federal district courts in Alabama outside of the Southern District could be mooted, thus undermining the capacity of those courts to act independently of the Southern District and creating further confusion and uncertainty as to the administration of justice within this State; and
WHEREAS Article I, Section 36.03, of the Constitution of Alabama, entitled "Sanctity of marriage," states:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
3
000008

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d} No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.

(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recogn~zed by this state as a marriage or other union replicating marriage.

and

WHEREAS § 30-1-9, Ala. Code 1975, entitled "Marriage, recognition thereof, between persons of the same sex prohibited," states:

(a} This section shall be known and may be cited as the "Alabama Marriage Protection Act."

(b} Marriage

is

inherently

a

unique

relationship between a man and a woman. As a

matter of public policy, this state has a

special interest in encouraging, supporting,

and protecting the unique relationship in order

to promote, among other goals, the stability

4

000009

and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
and
WHEREAS, neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act:
NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:
To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:
Effective immediately, no Probate Judqe of the State of Alabama nor any aqent or employee of any Alabama Probate Judqe shall issue or recoqnize a marriaqe license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.
Should any Probate Judge of this state fail to
5
000010

follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests "the supreme executive power of this state," Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. "The Governor shall take care that the laws be faithfully executed." Art. V, § 120, Ala. Const. 1901. "'If the governor's "supreme executive power" means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.'" Tyson v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)). DONE on this 8th day of February, 2015.
Roy S. Moore Chief Justice
6 000011

EXHIBIT

44 F.Supp.3d 1206 United States District Court,
S.D. Alabama, Southern Division.
James N. STRAWSER, et al., Plaintiffs,
V.
Luther STRANGE, in his official capacity as Attorney General for the State ofAlabama and
Don Davis in his official capacity as Probate Judge of Mobile County, Alabama, Defendants.
Civil Action No. 14-0424-CG-C.
I
Signed Feb. 12, 2015.
Synopsis Background: Same-sex couples filed emergency motion for preliminary injunction and/or temporary restraining order (TRO) to prevent county probate judge for enforcing Alabama laws, policies, or practices that excluded movants from marrying.
Holdings: The District Court, Callie V.S. Granade, J., held that:
[ l J Alabama's marriage sanctity laws, prohibiting same-
sex marriage, violate the Due Process Clause and Equal Protection Clause, and
[2] irreparable harm to same-sex couples outweighed any harm to the judge.
Motion granted.

Cases that cite this headnote
[21 Injunction Grounds in general; multiple factors
Injunction Balancing or weighing factors; sliding
scale The district court may grant a preliminary injunction only if the plaintiff demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the required injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest.
Cases that cite this headnote
[3] lfnjunction Extraordinary or unusual nature of remedy
A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites.
Cases that cite this headnote
Constitutional ·Law Marriage and civil unions
Constitutional Law Same-sex marriage
Power to regulate and control

West Headnotes (6)
[1] Discretionary Nature of Remedy
The decision to grant or deny a preliminary injunction is within the sound discretion of the district court.

Same-Sex and Other Non-Traditional Unions
Alabama's marriage sanctity laws, prohibiting same-sex marriage, violate the Due Process Clause and Equal Protection Clause by restricting the fundamental marriage right, without serving a compelling state interest. U.S.C.A. Const.Amend. 14; Ala.Const. Art. 1, § 36.03; Ala.Code 1975, § 30·--l-19.

Strawser v. Strange, 44 F.Supp.3d 1206 {2015)

1 Cases that cite this headnote
[51 Injunction <I= Marriage and divorce
Inability of plaintiff same-sex couples to marry in Alabama, because county probate judge would not allow marriage licenses to be issued, caused irreparable harm to the couples which outweighed any harm to the judge, as required for preliminary injunction enjoining the judge from enforcing Alabama's marriage sanctity laws prohibiting same-sex marriage which violated the Due Process Clause and the Equal Protection Clause; plaintiffs were being deprived of fundamental marriage right, they alleged that each day they were excluded from marriage, they had to deal with uncertainty about whether they would be treated as family members if they experienced a life crisis or emergency, and judge did not assert any injury, in his official capacity, that might result from issuance of injunction. U.S.C.A. Const.Amend. 14; Ala.Const. Art. 1, § 36.03; Ala.Code 1975, ~; 30-1--19.
l Cases that cite this headnote
[61 Injunction Public interest considerations
It is always in the public interest, as element for issuance of a preliminary injunction, to protect constitutional rights.
Cases that cite this headnote
West Codenotes
Held Unconstitutional Ala.Const. Art. 1, § 36.03; AL Canst. Amend. No. 774; Ala.Code 1975, § 30-l-19.
Attorneys and Law Firms
*1207 Clu·istopher F. Stoll, San Francisco, CA, Heather Rene Fann, Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, AL, Randall C. Marshall, Aclu of Alabama

Foundation, Inc., Montgomery, AL, Shannon P. Minter, Washington, DC, for Plaintiffs.
Joseph Michael Druhan, Jr., Johnston Druhan, LLP, Harry V. Sattenvhite, Satterwhite & Tyler, LLC, Lee L. Hale, Hale and Hughes, Mobile, Al, for Defendants.
ORDER
CALLIE V.S. GR.I\NADE, District Judge.
This matter is before the court on Plaintiffs' emergency motion for preliminary injunction and/or temporary restraining order (Doc. 43), and the response thereto of Attorney General Strange (Doc. 44). A hearing on Plaintiffs' motion was held on February 12, 2015. Appearing at the hearing were counsel for Plaintiffs, counsel for defendant Judge Don Davis and counsel for Plaintiffs in a similar case, SDAL Civil Action No. 15-067-CG-C. For the reasons explained below, the court finds that Plaintiffs' motion for preliminary injunction should be granted.
[1] [2] [3] The decision to grant or deny a preliminary inj1.mction "is within the sound discretion of the district court ..." Palmer v. Braun, 287 F.3d 1325, 1329 (l Hh Cir.2002). This court may grant a preliminary injunction only if the plaintiff demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substa~tial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the required injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Id.. 287 F.3d at 1329; see also McDonald~> Corp. F. Robertson, 147 F.3d ! 301 . 1306 ( ll th Cir. !998 ). "In this Circuit, ' [a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the "burden of persuasion" ' as to the four requisites." McDonald's Coq1., 147 F.3d at 1306; All Care Nursing Service, Inc. v Bethesda lvfemoria/ Hospital, Inc., 887 F.2d i 535, J537 (11th Cir. l 989)(a preliminary injunction is issued only when "drastic relief' is necessary.)
This case is brought by four same-sex couples in committed relationships who reside in Mobile, Alabama and have been denied the right to a legal marriage under the laws of Alabama. This court previously issued a preliminary injunction in this case prohibiting the Alabama Attorney General, "his officers, agents, servants and employees, and

Strawser v. Strange, 44 F.Supp.3d 1206 (2015)

others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage" from enforcing the Alabama laws which prohibit same-sex marriage. (Doc. 29). That preliminary injunction was initially stayed, but went into effect on Monday, February 9, 2015, after the Eleventh Circuit Court ofAppeals and the Supreme Court ofthe United States denied Attorney *1208 General Strange's request to extend the stay. (Doc. 40, Exh. I; Doc. 43, p. 2). On February 9, 20I5, the Plaintiffs went to the Mobile County Probate office seeking marriage licenses, but found the office closed. (Doc. 43-4, ~ 5; Doc. 43-5, ~ 5; Doc. 43-6, ~ 5; Doc. 43-7, ~ 5). Judge Don Davis of the Mobile County Probate Court issued a press release on February 9, 2015, stating that the Marriage License Section of the Court's Recording Division would remain closed pending further instructions from the United States District Court and the Chief Justice of the Alabama Supreme Court. (Doc. 43-3, and Hearing Exhibit 6). Judge Davis's press release further stated that he had filed an action with the Alabama Supreme Court seeking guidance and clarification. (Doc. 43-3 and Hearing Exhibit 6). The Alabama Supreme Court has since dismissed that petition. (See Doc. 52 at p. 26 and Hearing Exhibit 1OB). Judge Davis was not initially a defendant in this matter and was not named in the preliminary injunction that went into effect on February 9, 20I5. However, the amended complaint filed on February IO, 20I5, names Judge Davis in his official capacity as a defendant and seeks an injunction against Judge Davis prohibiting him from enforcing the Alabama laws, policies or practices that exclude Plaintiffs from marriage. (Doc. 47).

(Doc. 43-5, ~ 3, Hearing Exhibit 2). Miller and Carmichael hope to have children but are concerned that if they are not married their children will get the message that their family is not as worthy of dignity and respect as other families in Alabama and that their children will be denied important legal protections that come with marriage. (Doc. 43-5, ~ 4, Hearing Exhibit 2).
PlaintiffKristy Simmons wants to marry her partner, Marshay Safford, to have a legal family relationship and build stability for their children. (Doc. 43-6, ~ 3, Hearing Exhibit 3). Each day that they are not permitted to marry they experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 43-6, ~ 3, Hearing Exhibit 3). The legal protections of marriage are especially important to Simmons because she has a rare disorder called Wegener's Granulomatosis that causes her blood vessels to become inflamed and can damage her major organs. (Doc. 43-6, ~ 4, Hearing Exhibit 3).
Plaintiff Robert Povilat wants to marry his partner, Milton Persinger, in order to protect one another and have the legal protections and security that only marriage provides. (Doc. 43-7, ~ 3, Hearing Exhibit 4). Mr. Povilat has survived two bouts of prostate cancer and fears that he could be diagnosed with cancer again. *1209 (Doc. 43-7, ~ 4, Hearing Exhibit 4). Every day that they are not allowed to be married, they experience uncertainty about whether they will be treated as family members if they experience a crisis or an emergency. (Doc. 43-7, ~ 3, Hearing Exhibit 4).

The Plaintiffs report that they all feel demeaned and humiliated by Alabama's refusal to treat them equally. (Doc. 43-4, ~ 3; Doc. 43-5, ~ 3; Doc. 43-6, ~ 3; Doc. 43-7, ~ 3, Hearing Exhibits I-4). Plaintiff James Strawser has serious health issues that will require surgery that will put his life at risk. (Doc. 43-4, ~ 4, Hearing Exhibit I). When Strawser had surgery in the past, he signed a form giving his partner, John Humphrey, legal power over Strawser's medical decisions, but the hospital refused to honor that document because under Alabama law Humphrey was not a spouse or family member. (Doc. 43-4, ~ 4, Heming Exhibit I).
Plaintiff Meredith Miller wants to marry her partner, Anna Lisa Carmichael to have the legal protections and security that only marriage provides. (Doc. 43-5, ~ 3, Hearing Exhibit 2). Each day that they are excluded from marriage, they must deal with uncertainty about whether they will be treated as family members if they experience a life crisis or emergency.

[4] Plaintiffs contend that Alabama's laws prohibiting same-
sex matTiage ' violate their rights under the United States Constitution to Due Process and Equal Protection. This court has determined in another case, Searcy v. Strange, SDAL Civil Action No. I4-00208-CG-N, that Alabama's marriage sanctity laws prohibiting and refusing to recognize same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Searcy, this court found that those laws restrict the Plaintiffs' fundamental marriage right and do not serve a compelling state interest. Although the Plaintiffs in this case seek to marry in Alabama, rather than have their marriage in another state recognized in Alabama, the Court, as it previously did in issuing the preliminary injunction against Attorney General Strange, adopts the reasoning expressed in the Searcy case and finds that Alabama's laws violate the Plaintiffs' *1210 rights for the same reasons. Alabmna's marriage sanctity laws violate Plaintiffs' rights under the Due

Strawser v. Strange, 44 F.Supp.3d 1206 {2015)

Process Clause and Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution by prohibiting same-sex marriage. Said laws are unconstitutional.

It is ORDERED and DECLARED that ALA. CONST. ART. I,§ 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth

[51 [6] After considering the circumstances ofthis case and Amendment.

in light of the court's conclusion that the laws in question are unconstitutional, the court fmds that Plaintiffs have met the preliminary injunction factors. Plaintiffs' inability to exercise their fundamental right to marry has caused them irreparable
harm that outweighs any injury to defendant 2 . See Elrod v. Bums. 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that deprivation of constitutional rights "unquestionably constitutes irreparable harm."). Moreover, the Plaintiffs in this case have submitted declarations attesting to the specific reasons why their inability to become legally married in Alabama presents a substantial threat ofirreparable injury. Additionally, "it is always in the public interest to protect constitutional rights." Phelps--Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008). Therefore, the Plaintiffs have met their burden for issuance of a preliminary injunction against the enforcement of state marriage laws prohibiting

Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. IfPlaintiffs take all steps that are required in the normal course ofbusiness as a prerequisite to issuing a marriage license to oppositesex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any ofthem, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

same-sex marriage.

Accordingly, the Court once again makes the following declaration:

All Citations 44 F.Supp.3d 1206

Footnotes

1

The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:

(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. (f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex. (g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.

ALA. CONST. ART. I,§ 36.03 (2006).

The Alabama Marriage Protection Act provides:

(a) This section shall be known and may be cited as the "Alabama Marriage Protection Act."

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among

Strawser v. Strange, 44 F.Supp.3d 1206 (2015)

other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was

alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

ALA.CODE § 30-1-19.

2

Indeed, at the hearing on the motion, counsel for Judge Davis made no assertion of any injury to the Judge in his official

capacity that might result from the issuance of an injunction.

End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works

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EXHIBIT
K

Jll KeyCite Red Flag - Severe Negative Treatment
Abrogated by Obergefell v. Hodges, U.S., June 26, 2015
2015 WL 892752 Only the Westlaw citation is currently available.
NOT YET RELEASED FOR PUBLICATION.
Supreme Court ofAlabama.
Ex parte STATE ofAlabama ex rei. 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.
I
March 3, 2015.
Synopsis Background: Public interest groups, in name of state, filed emergency petition for writ of mandamus to prohibit all probate judges in state from issuing marriage licenses to same-sex couples.
Holdings: The Supreme Court held that:
[ l] statutes prohibiting issuance of marriage licenses to same-sex couples did not discriminate on basis ofgender and thus were not subject to heightened scrutiny;
[2] statutes did not violate equal protection;
[3] statutes did not violate due process; and
[4] statutes were not based solely on animus against homosexuals.
Petition granted; writ issued.
Main, J., filed an opinion that concurred in part and concurred in the result.
Shaw, J., filed a dissenting opinion.

WestHeadnotes (19)
Mand:mms Public Officers
Probate judge would be realigned as an additional relator, in proceedings on emergency petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples, even though judge had been initially named as a respondent, where judge filed response specifically requesting that the relief sought in the petition be granted.
Cases that cite this headnote
Constitutional Law Marriage and Divorce
Husband and Wife The Relation in General
Marriage is not a contract within the meaning of the clause of the constitution which prohibits impairing the obligation of contracts; it is rather a social relation like that of parent and child, the obligations ofwhich arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress. U.S.C.A. Const. Art. l. § 10. cl. l.
Cases that cite this headnote
!31 Cour-ts
Courts. Judges. and Judicial Ofilcers. Acts and Proceedings Of Supreme Court had subject matter jurisdiction, pursuant to its power of general supervision and control of inferior courts, to hear emergency petition for writ ofmandamus to prohibit probate judges from issuing marriage licenses to samesex couples; probate judges functioned as courts of inferior jurisdiction with responsibility to administer law in many types of cases, there was a need for immediate, uniform relief among all

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

of state's probate judges, and no circuit court had jurisdiction over any probate judge outside its territorial jurisdiction. Const. ArL 6, § 140(b); Code 1975. § 12-2-7.
Cases that cite this headnote
[4] Mandamus Use ofName of State
A mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the state on the relation of one or more persons interested in the performance of such duty to the public.
Cases that cite this headnote
[5] Mandamus Usc of Name of State
Petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples was not required to be brought by Attorney General, but could be brought by private parties in name of state, since petition did not concern a duty owed to the government as such; duty to issue marriage licenses in accordance with state law was a duty owed to the public for its benefit.
Cases that cite this headnote
M:md~imus
Interest in Subject-Matter Probate judge had standing to litigate emergency petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples; in his official capacity, judge had interest in discharging his ministerial duty in a manner consistent with law, and judge would be required to confront question of validity of same-sex marriages licensed by other probate judges and to address unavoidable derivative questions.
Cases that cite this headnote

[7] Courts Construction of Federal Constitution,
Statutes, and Treaties Courts
Courts, Judges, and Judicial Officers, Acts and Proceedings Of Decision of federal district court, determining that statutes prohibiting issuance of marriage licenses to same-sex couples violated equal protection, was not controlling authority on state Supreme Court and did not preclude Supreme Court from issuing writ of mandamus prohibiting state probate judges from issuing marriage licenses to same-sex couples. TJ.S.C.A. Const.Amend. l4; Const. Art. 1, § 36.03; Code 1975, § 30-1-19.
4 Cases that cite this headnote
[81 Courts Decisions of United States Courts as
Authority in Other United States Courts A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.
Cases that cite this headnote
Courts Decisions of United States Courts as
Authority in Other United States Courts Courts
Decisions of United States Courts as ,Authority in State Courts Federal district court decisions cannot clearly establish the law because, while they bind the parties by virtue of the doctrine of res judicata, they are not authoritative as precedent and therefore do not establish the duties of nonparties.
Cases that cite this headnote
Courts Decisions of United States Courts as
Authority in State Cowis

Ex parte State ex rei. Alabama Policy Institute,··· So.3d -··· (2015)

In determining federal common law, the Alabama Supreme Court defers only to the holdings of the United States Supreme Court and its own interpretations of federal law; legal principles and holdings from inferior federal courts have no controlling effect, although they can serve as persuasive authority.
Cases that cite this headnote

[HJ Courts Nature of Judicial Determination
Courts Construction ofFederal Constitution,
Statutes, and Treaties
In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy, for both sets of courts are governed by the same reviewing authority ofthe United States Supreme Court.
Cases that cite this headnote

[12] Courts Decisions ofUnited States Courts as
Authority in Other United States Courts
Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions; indeed, such results were contemplated by the federal system, and neither sovereign is required to, nor expected to, yield to the other.
Cases that cite this headnote

Constitutional Law Equal Protection

Law

Statutes and Other V·lritten

and

Ruics

For purposes of an equal protection challenge to a statute, the general rule is that legislation is presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a legitimate state interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[14] Constitutional Law Equal Protection
Constitutional Law Economic or Social Regulation in General
When social or economic legislation is at issue, the equal protection clause allows the states wide latitude, and the constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. U.S.C.A. Const.Amend. !4.
Cases that cite this headnote
llSj Constitutional Law Alien Status
Constitutional Law Race, National Origin, or Ethnicity
When a statute classifies by race, alienage, or national origin, these factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy, a view that those in the burdened class are not as worthy or deserving as others; for these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny in an equal protection challenge and will be sustained only if they are suitably tailored to serve a compelling state interest. U.S.C.A. Const.Amend. 14.
Cases rhat cite this headnote
Constitutional Law Marriage and Civii Unions
Marriage Power to Regulate and Conlroi
Marriage Same-Sex and Other Non-Traditional
Unions

Ex parte State ex rei. Alabama Policy Institute,··· So.3d ---- {2015)

Marriage Authority to Issue License
Statutes prohibiting issuance of marriage licenses to same-sex couples did not discriminate on basis of gender, and thus were not subject to heightened scrutiny for purposes of determining whether statutes violated equal protection; all men and all women were equally restricted to marriage between the opposite sexes. U.S.C.A. Const.Amend. 14; Const. Art. I, § 36.03; Code 1975. § 30--l-19.
Cases that cite this headnote
[1 7J Constitutional Law Marriage and Civil Unions
Marriage Power to Regulate and Control
Marriage Same-Sex and Other Non-Traditional
Unions
Marriage Authority to fssue License
Rational basis existed for statutes prohibiting issuance of marriage licenses to same-sex couples, and thus statutes did not violate equal protection; statutes were rationally related to legitimate government interest in recognizing and encouraging the ties between children and their biological parents. U.S.C.A. Const.Amcnd. 14; Const. Art. I,§ 36.03; Code !975. § 30-l 19.
Cases that cite this headnote
[18] Constitutional Law Same-Sex Marriage
Marriage Power to Regulate and Control
Marriage Same-Sex and Other Non-Traditional
Unions
Marriage Authority to Issue License
Statutes prohibiting issuance of marriage licenses to same-sex couples did not violate due process, since statutes did not interfere with any

fundamental rights; fundamental right to marry was limited to traditional opposite-sex marriage since same-sex marriage was not a deeply rooted tradition, there was no fundamental right to obtain state approval of one's sexual relationships, there was no fundamental right to marry a person one loved regardless of the gender of that person, and there was no fundamental right to enjoy the dignity of having the status of a married person. U.S.C.A. Const.Amend. 14; Const. Ali. I, § 36.03; Code 1975. § 30-l·-19.
Cases that cite this headnote
[19] Constitutional Law Same-Sex Marriage
Marriage Power to Regulate and Control
Marriage Same-Sex and Other Non-Traditional
Unions
Marriage Authority to Issue License
Statutes prohibiting issuance of marriage licenses to same-sex couples were not based solely on animus against homosexuals, and thus did not violate due process; statutes were not intended to single out same-sex partners for disfavored status, but served legitimate purposes including protecting children produced in opposite-sex relationships, fashioning a system for parental legal responsibilities, encouraging family structure, and enabling formative education and socialization of children. U.S .C .A. Const.Amend. 14; Const. Art. I, § 36.03; Code l975. § .30-l-!9.
Cases that cite this headnote
Attorneys and Law Firms
A. Eric Johnston, Birmingham; Samuel J. McLure of The Adoption Law Firm, Montgomery; and Jvfathcw D. Staver, Horatio G. Mihet, and Roger K. Gannam of Liberty Counsel, Orlando, FL, for petitioner State ex rei. Alabama Policy Institute and Alabama Citizens Action Program.

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

John E. Enslen, Probate Judge of Elmore County, as petitioner.
Lee L. Hale, Mobile; and J. Michael Dmhan, Jr., and Harry V. Sattenvhite, Mobile, for respondent Judge Don Davis, Probate Judge ofMobile 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 ofLanier 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 Giliis 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. Clemen1s, 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 rei. Alabama Policy Institute and Alabama Citizens Action Program.
J. Richard Cohen and David Dinielli, Southern Poverty Law Center, Montgomery; Ayesha !Uum, Americans United for Separation of Church and state, Washington, D.C.; Shannon P. lvfintcr and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA; and Randall C. Marshall, ACLU of Alabama Foundation, Montgome1y, for amicus curiae Equality Alabama, in support of the respondents.

*1 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~! ·~7, Ala.Code 1975 (providing for the solenmization of "marriages"), and § 30~ 1~9, Ala.Code !975 (authorizing probate judges to issue "marriage" licenses). In 1998, the Alabama Legislature added to this chapter the "Alabama Marriage Protection Act," codified at § 30-l-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 ofthe same sex." §·30~!~19(b) and (d), Ala.Codc J975. 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

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

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, [Civil Action No. 14--0208--CG-N, Jan. 23, 2015] - F.Supp.3d - (S.D.Ala.2015) ("Searcy I"), and Strawser v. Strange (Civil Action No. 14--0424--CG-C, Jan. 26, 2015) and a subsequent

Ex parte State ex rei. Alabama Policy Institute, --- So.3d --·- (2015}

order by that court, in each of those cases, refusing to extend a stay of its initial order pending an appeal.

this case. And a clerk who chooses not to follow the ruling should take

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 nonrecognition 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.

note: the governing statutes and rules of procedure allow individuals to intervene as plaintijft in pending actions, allow certification ofplaintiff and defendant classes, allow issuance ofsuccessive preliminary injunctions, and allow successfUl plaintijft 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

*2 On January 26, the federal district court entered a preliminary injunction in Strawser, a case in which a samesex 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

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.'

"the marriage laws of Alabama which prohibit same-sex

marriage."

(Quoting Brenner v. Scott (No. 4:14cvl07, Jan. I, 2015)

(N.D.Fla.) (emphasis added).)

In the wake of the federal district court's orders, Attorney

General Strange has refrained from fulfilling what would The federal district court entered stays of the execution of

otherwise have been his customary role of providing advice its injunctions in Searcy I and Strawser until February 9,

and guidance to public officials, including probate judges, 2015, in order to allow Attorney General Strange to seek a

as to whether or how their duties under the law may have further stay, pending appeal, from the United States Court of

been altered by the federal district court's decision. Similarly, Appeals for the Eleventh Circuit. On February 3, 2015, the

consistent with the federal district court's order, Attorney Eleventh Circuit declined Attorney General Strange's request

General Strange has refrained from taking any other official for a stay. Thereafter, Attorney General Strange sought a stay

acts in conflict with those orders.

from the United States Supreme Court. On February 9, 2015,

the United States Supreme Court also declined to enter a stay

On January 28, 2015, the federal district court issued over a strongly worded dissent from Justice Clarence Thomas

an "Order Clarifying Judgment" in Searcy I, in which it that was joined by Justice Antonin Scalia. Strange v. Searcy,

responded to "statements made to the press by the Alabama

·-U.S. -. 135 S.Ct. 940, L.Ed.2d

(20!5).

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

*3 On February 8, 2015, the Chief Justice of this Court entered an administrative order stating that the injunctions

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

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.

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

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

'j l } I

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

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 issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples.

In his response, Judge Davis "moved this ... Cotirt to enter an Order that the Emergency Petition for Writ of Mandamus filed on February 11, 2015, with this Court does not apply to [him] due to changing circumstances that are not reflected in the Mandamus Petition." He states that the petition does not apply to him because he is a defendant, in his official capacity

Also on February 9, 2015, the plaintiffs in Searcy I filed a motion seeking to hold Mobile Probate Judge Don Davis in contempt for "fail[ing] to comply with [the federal district

as probate judge, in Strawser, and he has been "enjoined from refusing to issue marriage licenses to the plaintiffs [in that case] due to the Alabama laws which prohibit same-sex marriage."

court's] January 23, 2015 Order." The federal district court

denied the motion, stating:

*4 [1] For his part, Judge Enslen stated in his response that

"Probate Judge Don Davis is not a party in this case and the Order of January 23, 2015, did not directly order [Judge] Davis to do anything. Judge Davis's obligation to follow the Constitution does not arise from this court's Order. The Clarification Order noted that actions against Judge

he "has thus far refused to issue same sex marriage licenses." Judge Enslen expressly requested that this Court "by any and all lawful means available to it, protect and defend the sovereign will of the people of the State of Alabama as expressed in the Constitution of the State of Alabama, as amended." We treat Judge Enslen's response as a motion to join this proceeding in the place of one of the "Judge Doe" respondents, and we grant that motion.

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."

Also, in light ofthe fact that the legal positions ofAPI, ACAP, and respondent Judge Enslen are clearly aligned, we hereby
modifY the record to reflect that alignment. 2 Judge Enslen has been realigned as an additional relator seeking an order from this Court requiring, among other things, that Alabama probate judges continue to perform their duty in accordance

(Footnote omitted.)

with Alabama law. API, ACAP, and Enslen are hereinafter

collectively referred to as "the relators."

On February 10,2015, the federal court granted the plaintiffs'

motion in Strawser to amend their complaint to add three The relators assert that Alabama's probate judges have a

additional same-sex couples as plaintiffs and to add Judge ministerial duty to follow Alabama law limiting marriage

Davis as a defendant. On February 12, 2015, the federal to a union of one man and one woman. In contrast, the

district court entered an order requiring Judge Davis to issue respondents contend that granting the relief the relators

marriage licenses to each of the four couples named as request necessarily would require this Court to determine the

plaintiffs in that case.

validity of that law when tested against the United States

Constitution because there would be no ministerial duty ofthe

As noted, on February 11,2015, API and ACAP filed their nature asserted if the law is unconstitutional.

petition. On February 13, 2015, this Court ordered answers

and briefs in response to the petition, "as to the issues raised The ministerial duty of probate judges in Alabama is, of

by the petition, including, but not limited to, any issue relating course, a function of Alabama law, which probate judges

to standing or otherwise relating to this Court's subject-matter swear by oath to support, except to the extent that that

jurisdiction, and any issue relating to the showing necessary duty may be altered or overridden by the United States

for temporary reliefas requested in the petition." On Februmy Constitution, to which they likewise swear an oath. Before

18, 2015, the named respondent probate judges and Probate the federal district court issued its decisions in Searcy I

Judges Don Davis and John E. Enslen filed their respective and Strawser, the named respondents and all other probate

responses to the petition.

judges in this State were performing their ministerial duty

in accordance with the express provisions of the Act and

the Amendment. They did so even though numerous federal

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

courts had already declared other states' laws limiting marriage to opposite-sex couples to be unconstitutional. See, e.g., Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir.2014); Latta v. Otter, 771 F.3d 456 (9th Cir.2014); and Kitchen v. Herbert, 755 F.3d 1193 (lOth Cir.2014). The respondents stopped following Alabama law, however, following the Searcy I and Strawser decisions. Clearly, the respondents, who were not bound by the federal district court's decision, assumed a new position as to the nature of their duty in accordance with the position taken by the federal district court. Therefore, in order to determine whether the respondents are correct to now treat their ministerial duty as being altered or overridden by the United States Constitution, we must examine the reasoning of the federal district court's decision in Searcy I, which triggered their change of position. Absent our doing so, we cannot resolve the dispute that exists in this adversarial proceeding; we cannot provide the relators the relief that they request and that the respondents oppose. It would not be enough for this Court merely to order that the respondents "follow their ministerial duty." Such an order would beg the question whether they are or are not doing so at the present time, the ve1y question the parties contest. Accordingly, in order to resolve the dispute before us and to discharge the supervisory duties and responsibilities imposed upon this Court by law, we must address that question.

Maynardv. Hill, 125 U.S. 190,211,8 S.Ct. 723,31 L.Ed. 654 ( 1888). It "creat[es] the most important relation in life, ... having more to do with the morals and civilization ofa people than any other institution." !d. at 205, 8 S.Ct. 723.
" '[Marriage] is not then a contract within the meaning of the clause ofthe constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.' "
Id at 211·12, 8 S.Ct. 723 (quoting Adams v. Palmer. 5 l Me. 480. 484--85 (! 863)).
"[M]nrriagc is a contract sui generis, and the rights, duties, and obligations which arise out of it, are matters of so much importance to the well-being of the State, that they are regulated, not by private contract, but by the public laws ofthe State, which are imperative on all, who are domiciled within its territory."

I. The Significance and Meaning ofMarriage

Story, supra, at§ Ill.

*5 [2] The family is the fundamental unit of society. Marriage is the foundation of the family. There is no institution in a civilized society in which the public has any greater interest.
"The contract of mnrriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society."
Joseph Story, Commentaries on the Conflict ofLaws Foreign and Domestic§ 109 (3d ed.l846).
"[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."

According to one observer, marriage is a "prepolitical" "natural institution" "not created by law," but nonetheless recognized and regulated by law in every culture and, properly understood, an institution that must be preserved as a public institution based on the following rationale: "The family is the fundamental unit of society.... [F]amilies ... produce something that governments need but, on their own, they could not possibly produce: upright, decent people who make honest law-abiding, public-spirited citizens. And marriage is the indispensable foundation of the family." Robert P. George, Law and Moral Purpose, First Things, Jan. 2008; see also Sherif Girgis, Robert P. George & Ryan T. Anderson, What is Marriage?, 34 Harv. J.L. & Pub. Pol'y 245, 270 (2011) (discussing the bases for laws supporting "conjugal" or "traditional" marriage and noting that "[m]arriages ... are a matter of urgent public interest, as the record of almost every culture attests-worth legally recognizing and regulating. Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for each other.... In the absence of a flourishing marriage

As the United States Supreme Court acknowledged in United

States v. Wh1dsor,

U.S. ----. 133 S.Ct. 2675. 186

L.Ed.2d 808 (2013):

culture, families often fail to form, or to achieve and maintain

"It seems fair to conclude that, until

stability.").

recent years, many citizens had not

even considered the possibility that

*6 Thus it is for the stability and welfare of society, for the

two persons of the same sex might

general good of the public, that a proper understanding and

aspire to occupy the same status and

preservation of the institution of marriage is critical. It is the

dignity as that of a man and woman

people themselves, not the government, who must go about

in lawful marriage. For marringe

the business of working, playing, worshiping, and raising

between a man and a woman no doubt

children in whatever society, whatever culture, whatever

had been thought of by most people

community is facilitated by the framework of laws that

as essential to the very defmition of

these same people, directly and through their representatives,

that term and to its role and function

choose for themselves. It is they, who on a daily basis

throughout the history ofcivilization."

must interact with their fellow man and live out their lives within that framework, who are the real stakeholders in that framework and in the preservation and execution of the institutions and laws that form it. There is no institution more fundamental to that framework than that of marriage

US. at

. 133 S.O. at 2689 (also noting that "[t]he

limitation of lawful marringe to heterosexual couples ... for

centuries had been deemed both necessary and fundamental,"

id).

as properly understood throughout history.

"It is beyond dispute, as the Court

In 1885, the United States Supreme. Court expressed the axiomatic nature of marriage as follows:

of Appeal majority . in this case persuasively indicated, that there is no deeply rooted tradition of same-

"[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from union for life of one man and

sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman."

one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that

*7 In reMarriage Cases. 43 Cal.4th 757, 866, 183 P.3d 384, 460. 76 Cal.Rptr.3d 683, 773 (2008) (Baxter, J., concurring
in part and dissenting in part) (footnote omitted). 3

reverent morality which is the source of all beneficent progress in social and political improvement."

From its earliest days, Alabama has recognized so-called common-law marriages. See, e.g., Campbell's Adm'r v. Gullatt, 43 Ala. 57. 69 (H?69) ("[A] mnrriage good at the

1'.

I 14 US 15. 45, 5 S.Ct. 747. 29 LEd. common law, is to be held a valid marriage in this State.").

47 (1 885). See, also, Smith F. Smith 14 I Ala. 590, 592. 37 Also from its earliest days, the State has by legislation

So. 638. 638--39 ( 1904), describing marriage as "the sacred provided a statutory scheme for the formal licensing and

relation." Even in decisions suggesting that marringe is simply a "civil status," courts have recognized "the fair point

recognition of marriages by the State. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 1 (1823). The

that same-sex marriage is unknown to history and tradition." present statutorily prescribed scheme for the licensing and

Wind~or v. United States. 699 F.3d 169, !88 (2d Cir.20!2). solemnization of marriages is found in Chapter 1 ofTitle 30,

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

Ala.Code 1975. Further, both the caselaw and the statutory law of Alabama incorporate or contemplate the institution of marriage in many areas.
The meaning and significance of marriage as an institution, as prescribed or recognized throughout all of these statutes and all of Alabama's decisional laws, reflects the truths described above: that marriage, as a union between one man and one woman, is the fundamental unit of society.
As the Alabama Supreme Court stated in 1870:

Chapter 1 of Title 30. Neither order analyzes the import of its approach to the term "marriage" for such related terms as "husband," "wife," "spouse," "father," and "mother" so entrenched in much of the caselaw and other statutory law of this State. See discussion infra. The probate judges of this State, in both their judicial and ministerial capacities, continue to be bound by that caselaw and by those statutes. Furthermore, 67 of this State's 68 probate judges are not the subject of any restraint by the federal district comt, including as to the interpretation and application of the Act and the Amendment.

"Archbishop Rutherford, one ofthe most able and eminent of the commentators on Grotius, has placed marriage among the natural rights of men. He defines it in these words: 'Marriage is a contract between a man and woman, in which, by their mutual consent, each acquires a right in the person of the other, for the purpose of their mutual happiness and for the production and education ofchildren. Little, I suppose, need be said in support of this definition, as nothing is affirmed in it, but what all writers upon natural law seem to agree in. '-Ruthf. lusts. ofNat. Law, p. 162; 1 Bish. on Mar. and Div. § 3, 29; 2 Kent, 74, 75; 6 Bac. Abr.

*8 Yet there is the federal district court decision. And, in the wake of that decision, the refusal of the federal district court to stay that decision and the unavailability of the Attorney General as a source of guidance, uncertainty has become the order of the day. Confusion reigns. Many judges, including the respondents, are issuing marriage licenses to both samesex couples and opposite-sex couples. Others are issuing no marriage licenses at all. Still others, like relator Judge Enslen, are issuing marriage licenses only to opposite-sex couples. There is no order or uniformity of practice.

Bouv. p. 454; 2 Bouv. Law Diet. 12th ed. p. 105.

But the problems that lie before us are not limited to the

\

"Mr. Parsons, referring to the same subject, in a late work of the highest authority, uses like language. He declares

confusion and disarray in the ministerial act of licensing marriages. If the same-sex marriage licenses being issued

that 'the relation of marriage is founded on the will of by respondents and other probate judges are given effect

God, and the nature of man; and it is the foundation of all by those judges and their colleagues in other circuits

moral improvement, and all true happiness. No legal topic throughout the State, this will work an expansive and

surpasses this in importance; and some of the questions overnight revolution in countless areas of caselaw and

which it suggests are ofgreat difficulty.'-2 Pars. on Contr. statutory law that incorporate or contemplate the traditional

p. 74."

definition of marriage. To name but a few examples, there is

caselaw and/or statutory law that presumes, accommodates,

Goodrich v. Goodrick 44 Ala. 670, 672-75 (1870).

or contemplates man-woman marriage in such wide-ranging

areas as the laws of inheritance and the distribution of

estates, the administration of estates, postmarital support,

II. This Court's Authority And Responsibility To Act

custodial and other parental rights as to children, adoption ~f children,-+ dissolution of marriages, testimonial privileges

A. This Court Has Subject-Matter Jurisdiction

in both the civil and criminal law, certain defenses in the criminal law, interests in land, the conveyance and recording

[3] As discussed, the federal district court's order in Searcy I enjoined Attorney General Strange from enforcing the Amendment and the Act, thus effectively preventing the Attorney General from giving much needed advice to Alabama's probate judges as to their legal duties under the law. The federal district court's order in Strawser specifically

ofsuch interests, compensation for the loss ofconsortium, and the right to statutory or contractual benefits of many types. Indeed, most of the matters falling within the jurisdiction of the probate courts involve rights that are affected by marital status because of the rights of a spouse or legal preferences given to a spouse or parent.

relied upon the legal reasoning set out in Searcy I Neither order specifically discusses or analyzes the remainder of

Section 12- l3- l . Ala.Code 1975, states, in part:

jd l

'I L·

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

"(b) The probate court shall have original and general jurisdiction over the following matters:

of decedents, and all trial courts will have to assess the applicability of evidentiary privileges belonging to a spouse.

"(1) The probate of wills.

The Governor of Alabama recently highlighted in an amicus brief to the United States Court of Appeals for the Eleventh

"(2) The granting of letters testamentary and of Circuit (filed in support ofAttorney General Strange's request

administration and the repeal or revocation of the same. for a stay of the order in Searcy I ) some of the laws and

"(3) All controversies in relation to the right of executorship or of administration.

practices that potentially would be affected by a redefmition of marriage:

"(4) The settlement of accounts of executors and administrators.

"[A]ll of the statutes governing marital and domestic relations, Ala.Code Title 30, and the judicial decisions interpreting them; the presumption ofpaternity, Ala.Code §

"(5) The sale and disposition of the real and personal property belonging to and the distribution of intestate's estates.

26-17-~ 204, and other rules for establishment ofthe parentchild relationship, Ala.Code § 26-!7--201; laws governing consent to adopt, Ala.Code § 26--l OA-- 7(3), and all other laws governing adoption, Ala.Code Title 26, Chapter lOA;

"(6) The appointment and removal of guardians for minors and persons of unsound mind.

termination of parental rights, Ala.Code § 12- ! 5--319; all laws that presuppose different people occupying the positions of 'father,' 'mother,' 'husband,' and 'wife,' e.g.,

"(7) All controversies as to the right of guardianship and

Ala. Code § 40-7 -!7; laws governing intestate distribution,

the settlement of guardians' accounts.

the spousal share, Ala.Code § 43-8-41, and the share

"(8) The allotment ofdower in land in the cases provided by law."

of pretermitted children, Ala.Code § 43-8--91; legal protections for non-marital children, Ala.Code § 26-!7202; registration of births, Ala.Code§ 22-9A-7, .J.M. V. 1'.

Without a clear understanding as to whether a marriage exists, how is a probate court to know whether a same-sex partner must be served with process as a surviving spouse for purposes of a petition to probate a deceased partner's will; how is the probate court to know whether a same-sex partner

.J.K.H., 149 So.3d 1100 (Aia.Civ.App.2014); conflict-ofinterest rules and other ethical standards prohibiting marital relations, Ala.Code § 45-28-70(f)(l ), Coo11er v. Alabama State, 59 So.3d 29 (Ala.20JO); and laws presupposing biological kin relations, Ala.Code § 38--12-2.

has a priority right, as a surviving spouse, to appointment

"This does not include laws governing forms issued

as administrator of a deceased partner's estate; how is the

by the State that identify mothers, fathers, husband,

probate court to know whether a deceased partner has the

or wife; tax laws; education curricula; accreditation

right of a surviving spouse to an intestate share of the estate,

standards for educational institutions; licensing standards

or to homestead allowance, to exempt property, to family

for professions; public accommodations rules; religious

allowance, or to other rights of a surviving spouse; and how

liberty protections; health care regulations; and many other

is the probate court to determine priority rights as to the

areas of law. What are children to be taught in Alabama's

appointment of guardians and conservators?

schools about the nature of marriage? How will it be

defined in textbooks and other instructional materials? Will

*9 And the problems will not be confined to probate courts.

all private schools, colleges, and universities be required

Circuit courts must assess marital status in regard to whether

to go along with the new definition, whatever it is? Will

to grant a petition for a legal separation or a divorce and in

there be moral or religious exemptions for those who

making property divisions and alimony awards. And marital

perceive inherent differences between marital unions and

status is part of our law concerning the legitimation of

non-marital unions?"

children and paternity, including presumptions as to married

persons to whom a child is born, a matter that affects Every day, more and more purported "marriage licenses"

both circuit courts and juvenile courts. Likewise, circuit are being issued to same-sex couples by some of the probate

courts will be confronted with claims of loss of consortium judges in this State. Every day, the recipients of those

and wrongful-death claims brought on behalf of the heirs licenses and others with whom they interact may be, and

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

presumably are, relying upon the validity of those licenses in their personal and business affairs. Every probate judge in this State, regardless of his or her own stance on the issuance of such licenses, will soon enough be faced, in his or her judicial capacity, with a universe of novel derivative questions unprecedented in their multiplicity, scope, and urgency. The circuit courts ofthis State will confront a similar experience.
*10 The probate judges of this State are members of the judicial branch of government. Accepting the position suggested by all relators and respondents, that insofar as their execution of the authority to issue marriage licenses they function not as courts of inferior jurisdiction, but as executive ministers of the law, the fact remains that each probate judge in this State also functions as a "court of inferior jurisdiction" with responsibility to administer the law in many types of cases. Their ability to do so with any semblance of order and uniformity, with due regard for the lives their decisions impact, and with respect for the law and the constitutions of this State and of the United States, which they have sworn an oath to uphold, is in peril. Indeed, given the disparate views of the law held among these judges, and no doubt the circuit judges as well, we see no way for there to be uniform and even-handed application of the law among the circuits of this State unless and until this Court speaks.
Section l40(b), Ala. Const.l90 l, states that this Court "shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction." Section 12--2-7(3),
s Aia.Code !975, echoes 140, stating that "[t]he Supreme
Court shall have authority ... [t]o issue writs of injunction, habeas corpus, and such other remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction." A separate provision of§ !2--2-7. subsection (2), provides the following jurisdiction to the Supreme Court: "To exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction."
Alabama is not alone in its adoption of provisions such as those cited above. "Constitutional or statutory provisions expressly granting to various courts superintending control over inferior tribunals are common, although not universal, in the states of this country." P.V. Smith, Annotation, Superintending Control Over Inferior Tribunals, 112 A.L.R. 1351, 1352 (1938). The language used by most states in

granting courts this power is very similar to the language found in Alabama's Constitution. Generally, concerning the origin of the superintending control over inferior tribunals, Smith states:
"The following conclusion was drawn by the annotator in 51 L.R.A. 33, loc. cit. p. 111: 'The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted.' "
*11 112 A.L.R. at 1356 (emphasis added). Further,
"[i]n Kelzv v. Kemp (1917) 63 Okla. 103, 162 P 1079, in regard to the constitutional provision vesting the Supreme Court with a general superintending control over inferior tribunals, the court said: 'This provision placed the Supreme Court in practically the same position with reference to the inferior courts ofthe State, as that occupied by the court of King's Bench to the inferior courts of England under the common law, which court, as stated by Blackstone, was vested with power to keep all inferior courts within the bounds oftheir authority and, to do this, could remove their proceedings to be determined by it, or prohibit their progress below (3 Bl. Com. 42), and that court was also possessed of authority to enforce in inferior tribunals the due exercise of those judicial or ministerial powers which had been vested in them, by restraining their excesses and quickening their negligence and obviating their denial ofjustice (2 Bl. Com. 111).'"
1!2 A.L.R. at 1356-57 (emphasis added).
"The power of superintending control is not limited by forms of procedure or by the writ used for its exercise." 1i 2 A.L.R. at 1357.
"Accordingly, in State v. Long (1911) 129 La. 777, 56 So. 884, where it was argued as to the conditions under which writs ofcertiorari, mandamus, and prohibition might issue, the Supreme Court said that, in the exercise of its supervisory powers, it was not tied down by the provisions ofthe Code ofPractice regarding such writs.

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

"And in Thomas v. Doughty (1927) 163 La. 213, 111 So. 681, the Supreme Court said: 'This court, in the exercise ofits general supervision and control over inferior courts, is not tied down by forms ofprocedure, and will look at the substance ofthe right sought to be vindicated and the needfor speedy relief rather than to theform in which such reliifis sought.'
"In Dinsmore v. Manchester (1911) 76 N.H. 187, 81 A. 533, in answer to an objection to the scope of review by the Supreme Court on certiorari under its statutory general superintendence of all inferior tribunals, the court said that it was unimportant that the proceeding was called 'certiorari,' and that 'the superintending power of the court over inferior tribunals does not depend upon, and is not limited by, technical accuracy of designation in legal forms of action.'
"And in Lowe v. Disn·ict Ct. (1921) 48 N.D. 1, !81 N.W. 92, the Supreme Court said that the nature and extent of its superintending control are 'not reflected by the name of the writ that has been used for its exercise.' "
112 A.L.R. at 1357-58 (emphasis added). See also Thompson v. Lea, 28 Ala. 453, 463 ( 1856) (Rice, C.J.) (noting that this Court's appellate jurisdiction and its superintending control over inferior tribunals are "distinct things, and must not be confounded" and stating that" '[a] general superintendence and control of inferior jurisdictions' is, by the constitution, granted to this court unconditionally. 'Appellate jurisdiction' is, by the very terms of the grant, subjected to 'such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law.' " (emphasis added)).
*12 "The generally accepted view is that a court will exercise its superintending control over inferior tribunals only in extreme cases and under unusual circumstances." 112 A.L.R. at 1373. This sentiment is consistent with our Court's precedent. In E¥ parte Alabama Textile Products Corp.• 242 Ala. 609, 613, 7 So.2d 303, 306 (1942), this Court exercised jurisdiction over an original action on the ground that the Montgomery Circuit Court could not provide the complete relief necessary, observing that
"the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where

the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation of the alleged wrong."
See also Roe v. Mobile Cnty. Appoi11tment Bd., 676 So.2d 1206 (Ala.I995), overruled on other grounds by Williamson v.lndianapolis Life Ins. Co., 741 So.2d 1057 (1999), in which this Court relied upon the unified nature of our court system and the supervisory authority granted to it under what is now § 140 of our constitution to "reach down" and "pull up" to it the record in a still pending lower court proceeding in order to create a framework for its assessment of a related matter.
The respondents' briefs focus on Alabama Textile and make three arguments as to why the holding in that case does not support jurisdiction in this Court over the present matter. First, the respondents argue that Alabama Textile involved a petition for a writ of certiorari rather than a petition for a writ of mandamus. The respondents give no explanation, and cite no authority, as to how or why this makes a difference. We cannot see that it does.
Second, the respondents argue that the Court in Alabama Textile determined that it should exercise jurisdiction "because all parties consented to the jurisdiction of the Supreme Court." This assertion is incorrect. Parties cannot vest this Court with jurisdiction by agreeing that it has jurisdiction. 242 Ala. at 612, 7 So.2d at 305 ("[T]his Court can only act within the jurisdiction conferred by law, and this cannot be enlarged by waiver or the consent of the parties."). And the parties did not do so in Alabama Textile. What they did agree to do was to waive the necessity of a writ of certiorari calling up the case for review. But the issue of a formal writ of certiorari is irrelevant here because the present case comes to us as a petition for a writ of mandamus or similar relief. The case therefore is already before us without
the necessity of our calling it up from some lower court. :i
The third and fmal argument of the respondents-which they refer to as their "most important[ ] argument"is as follows: The holding of Alabama Textile has been recognized in subsequent cases, but only as dicta. The fact that Alabama Textile, itself, held as it did, however, is in itself sufficient precedent for the action taken by this Court today. In any event, one would expect that extraordinary circumstances justifying this Court's action, rather than

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

action by a circuit court, would be rare. In addition, as the respondents themselves note, the principle recognized by this Court in Alabama Textile has in fact been reiterated by this Court on several occasions, including in this Court's decision in Ex parte Tubbs, 585 So.2d 130 l, 1302 (Ala.l991 ). See also Denson v. Board of Trustees of the University of Alabama, 247 Ala. 257, 258,23 So.2d 714, 715 (1945), and Ex: parte Barger. 243 Ala. 627, 628, ll So.2d 359, 360 (1942).
*13 An additional argument that might have been, but was not, made by the respondents is that the probate court, in exercising its authority to issue marriage licenses, acts not as a "court" or a "court of inferior jurisdiction" in relation to this Court, but as an executive minister. API and ACAP themselves cite authority for the proposition that " '[t]he issuance of a marriage license by a judge of probate is a ministerial and not a judicial act.' " (Quoting Ashley v. State. 109 Ala. 48, 49. l9 So. 917, 918 (!896).)
There are several problems with attempting to conclude that this Court lacks jurisdiction on the basis of such a purported distinction in Alabama Textile. First, the respondent in Alabama Textile was not a "court" either. It was the Alabama Department of Industrial Relations, an agency of ·the executive branch of government. Although its internal procedures for decision-making might have been quasijudicial in nature, its eventual action or inaction was that of an executive agency, not a court.
It would further appear that the exact nature of the party before the Court in Alabama Textile was of no moment to the Court, and would have been of no moment even if examined more closely, given the provisions of~ !2-2- 7(2). As noted, that section states simply that the Supreme Court "shall have authority ... [t]o exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction." The text refers not to writs directed to lower "courts" but to "matters in which no ... court" (other than the Supreme Court) would have jurisdiction. In addition, of course, there is the fact that the writ of quo warranto authorized thereby is not a writ issued only to courts acting as courts, but is in the normal course a writ issued to individuals purporting to hold (or exercise the authority of) offices of all sorts in all three branches ofgovernment. In fact, this Court recently exercised its original jurisdiction under § 12-2-7(2) to issue a writ of mandamus to a probate judge in his administrative capacity where no circuit court had the ability to do so. 6

It is clear that no other court in this State has the jurisdiction to provide the relief necessary in this most unusual of cases. There is a need for immediate, uniform relief among all the probate judges of this State, and no circuit court has jurisdiction over any probate judge outside its territorial jurisdiction. See Brogden v. Employees' Ret. Sys., 336 So.2d 1376 (Ala.Civ.App.l976) (explaining that the Constitution authorized the Legislature to divide the state into judicial circuits with geographical or territorial boundaries, that within such boundaries each circuit court exercises the authority granted it exclusive of other circuit courts, and therefore the statutory grant to a circuit court of supervisory power over inferiorjurisdictions could be applied only to such inferior judicial bodies that sat or acted within the territorial limits of the circuit), cert. denied sub nom., Ex parte State ex rei. Bax!ev, 336 So.2d 1381 (1976).
*14 Alabama Textile offers a helpful framework for assessing the necessity of action by this Court under § !2--27(2) in this case:
"The necessity is not wholly dependent upon whether some court inferior to this has the legal power by certiorari to review the order in question. See Ex parte Boynton, 44 Ala. 261 [ (1870) ]. But the rule observed elsewhere with a similar provision of the constitution seems to be that the higher court will not take jurisdiction where the application can be made to a lower court, unlessfor special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation ofthe alleged wrong. 14 Corpus Juris Secundum, Certiorari, p. 204, § 57. That authority cites Hailiday v. Jacksonville [& Alligator] Plank Road Co.. 6 Fla. 304 [ (1855) ]. The report of that case quotes the constitution of Florida in identical language as our section 140, supra, as here material, and observes: 'It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this Court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment ofjustice.' [6 Fla. at 304.]
"We do not think that the requirement of the Constitution that we shall issue such writs only when necessary to give us a general superintendence fixes an iron-clad rule that we cannot do so when another court inferior in grade to us has a like power.

Ex parte State ex ret. Alabama Policy Institute, ••• So.3d ---- {2015}

"While we hold that the Circuit Court of Montgomery County may review by appropriate remedial writs the boards and commissions of the State sitting in Montgomery, we also think that this Court may do so when in our judgment it is necessary to cifford full relief and do complete justice. An exercise of such discretion will receive more favorable consideration when the interested parties appear and virtually agree that there is such necessity by submitting the cause without making the objection that there is an absence of it. We have the right to determine whether a necessity exists, influenced by the magnitude and importance of the question involved, and the convenience ofthe parties in presenting it, rather than in first going to the Circuit Court ofthe county where the board sits.

Alabama's probate judges of their duty to issue marriage licenses only in accordance with Alabama law. The respondents fail to allow for the fact, however, that the present petition is filed in the name of the State for the purpose of securing performance by public officials ofa duty owed to the public, not in the name of a private party to enforce a private right or duty.
[4] The rule of public-interest standing, sometimes referred to as the public-interest exception, has been widely and long-recognized. Consistent with this principle, this Court has stated that a relator has standing to bring a petition for mandamus or comparable relief, in the name of the State, seeking to uphold a State statute and to secure performance by respondents ofa duty owed to the public.

"On account of the importance of the question here involved, its state-wide application, the need of an early decision, the territorially restricted jurisdiction of the circuit court and the consent of the parties, we have concluded in the exercise of our power and discretion to give consideration to the merits of the question and make decision of it."
242 Ala. at 613-14, 7 So.2d at 306 (emphasis added).

"It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public...."

The "magnitude and importance" of the issue before us is unparalleled. And the "special reasons" that compel us to act are unlike any other in the history of our jurisprudence. Given the textual grant of authority described above, the sui generis nature of this matter, the unprecedented existing and potential confusion and disarray among the probate and other judges of this State, the multiplicity and magnitude of the substantive issues presented, the resulting need for an immediate resolution of this matter, the unavailability in any other court of the immediate statewide relief that is needed, and this Court's ultimate responsibility for the orderly administration of justice in this State, we are clear to the conclusion that this Court has the authority to act in this matter to maintain and restore order in the administration ofour laws by the probate judges and the courts of this State.
B. This Proceeding Is Between Adverse Parties with Standing
*15 The respondents argue that the relators lack "standing" to bring this action because, they say, the relators have no private interest or private right in the performance by

Kendrick v. State ex ref. Shoemaker, 256 Ala. 206, 213, 54 So.2d 442, 447 ( J951 ); see also Morrison v. Morris, 273 Ala. 390.392, 141 So.2d !69, !70 (1962) (same); Homan v. State ex rei. Smith, 265 Ala. 17. 19, 89 So.2d 184. 186 (l956) (same). Indeed, this has been well settled in Alabama for over 100 years: "There is no doubt that, where the writ is sued out to require the performance of a definite duty to the public, the proceeding must proceed in the name ofthe state as plaintiff." Bryce v. Burke, 172 Ala. 219, 230, 55 So. 635. 638 (!911) (opinion on rehearing).
This Court did not fundamentally change the law of standing in Alabama in 2003 when it adopted the federal formulation of the general standing rule focusing on injury. See Alabama Alco!wUc Beverage Control Bd. v. Henri--Duva! LL.C.. 890 So.2d 70, 74 (Ala.2003). Rather, the Court "effectively restated the standard ... using language adopted from the Supreme Court of the United States." Tmm Cedar B!u(fv. Citizens Cari17gfor Childr·en, 904 So.2d 1253, 1256 (Aia.2004) (emphasis added). The Cedar Bluff Court explained the development as follows:

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- {2015)

"In Jones v. Black, 48 Ala. 540 {1872), this Court first articulated a test for determining whether a party has the necessary standing to challenge the constitutionality of an act of the Legislature. We stated then:
" 'A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is, or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.'
*16 "48 Ala. at 543. In Alabama Alcoholic Beverage Control Board v. Henri-Duval T'Vinety. LLC, 890 So.2d 70, 74 (Ala.2003), a party challenged the constitutionality of Alabama's Native Farm Winery Act,* 28-6-l et seq., Ala. Code 1975. In that case, this Court effectively restated the standard articulated in Jones, using language adopted from the Supreme Court of the United States:
" 'A party establishes standing to bring a challenge [on constitutional grounds] when it demonstrates the existence of (1) an actual, concrete and particularized "injury in fact"-"an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of'; and (3) a likelihood that the injury will be "redressed by a favorable decision." Lujan v. De<fenders of' Wildlffe, 504 U.S. 555, 560--61, !12 S.Ct. 2130, !!9 L.Ed.2d 351 (1992).' "
904 So.2d at 1256--57 (emphasis omitted). 7

By comparing this Court's own standing formulation from

Jones \'. Black, 48 Ala. 540 ( l872) (focusing on injury),

with the adopted, three-pronged formulation from Lujan v.
Defenders of' Wi!dlfle, 504 lJ.S. 555. I l2 S.Ct. 2l3tl I 19

L.Ed.2d 35 i (i 992) (focusing on injury), the Cedar Bluff

Court showed that this was no seismic shift in Alabama

standing law. The Court simply used the federal fonnulation

to state its own entrenched standing law more precisely.

See Er parte King, 50 So.3d l 056. i 059

("[I]n

2003 this Court adopted the ... more precise[ ] rule regarding

standing based upon the test used by the Supreme Court of

the United States."); Muhammad r Ford, 986 So.2d 1158,

1162 (Ala.2007) ("In [Henri-Duval ], this Court adopted a

more precise rule regarding standing articulated by the United

States Supreme Court.").

equally entrenched standing rule applicable in mandamus cases seeking to compel performance of a public duty. To be sure, the rule is known in the modem law ofother states under such labels as the "public-standing exception," the "publicstanding doctrine," and "public-interest standing," etc. For example, the Indiana Supreme Court in 2003 concluded, after surveying the laws ofnumerous accordant states: "The public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve the enforcement ofa public rather than a private right, continues to be a viable exception to the general standing requirement." State ex ref. Cittadine v. Indiana Dep't of Transp., 790 N.E.2d 978, 983 (Ind.2003) (emphasis added). In affirming the viability of the rule, the court explained:
"Under our general rule of standing, only those persons who have a personal stake in the outcome of the litigation and who show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct will be found to have standing. Absent this showing, complainants may not invoke the jurisdiction of the court. It is generally insufficient that a plaintiff merely has a general interest common to all members of the public.
*17 "[Relator] seeks to avoid this general rule by invoking the public standing exception. He does not contend that he has suffered a spec[fic injury, but argues that, because the object of the mandate is to procure the enforcement of a public duty, he has standing under Indiana's public standing doctrine. As we recently noted in Schloss [v. C'if1' of' Tndianopolis, 553 N.E.2d 1204 (Iad.l990) ]:
" 'Indiana cases recognize certain situations in which public rather than private rights are at issue and hold that the usual standards for establishing standing need not be met. This Court held in those cases that when a case involves enforcement of a public rather than a private right the plaintiff need not have a special interest in the matter nor be a public official.'
"Schloss. 553 N.E.2d at 1206 n. 3 (quoting Higgins [1· Hale], 476 N.E.2d [95,] at iOl [(Ind. 1985)]). Specifically, the public standing doctrine eliminates the requirement that the relator have an interest in the outcome of the litigation different from that of the general public.

What this Court did not do in Henri-Duval in 2003, and has not done since, is overrule those cases recognizing the

"The public standing doctrine has been recognized in Indiana case law for more than one hundred and fifty years."

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

790 N.E.2d at 979-80 (emphasis added; some citations omitted).
More recently, the historical yet still vital "public-interest standing" was invoked in a 2013 New York mandamus proceeding:
"However, in matters of great public interest, a citizen may maintain a mandamus proceeding to compel a public officer to do his or her duty. The office which the citizen peiforms is merely one ofinstituting a proceeding for the general benefit, the only interest necessary is that of the people at large. One who is a citizen, resident and taxpayer has standing to bring an Article 78 proceeding for the performance by officials of their mandatory duties, even without a personal grievance or a personal interest in the outcome. The public interest standing of a citizen has been extended to corporations as well as other organizations.
"In fact, as far back as the Nineteenth Century, the Court of Appeals held, the writ of mandamus may, in a proper case, and in the absence of an adequate remedy by action, issue ... on the relation of one, who, in common with all other citizens, is interested in having some act done, of a general public nature, devolving as a duty upon a public officer or body, who _refuse to perform it."
Marone v. Nassau Ozzv.. 967 N.Y.S.2d 583, 589,39 Misc.3d
1034, 1040-41 (Sup.Ct.2013) (expressing. a limitation of the doctrine to "matters ofgreat public interest ") (internal quotation marks and citations omitted; emphasis added).
Still more recently, the California Court of Appeal affirn1ed the vitality of the "public-interest exception":
"It is true that ordinarily the writ of mandate will be issued only to persons who are beneficially interested. Yet, in [1945, the California Supreme Court] recognized an exception to the general rule where the question is one ofpublic right and the object ofthe mandamus is to procure the enforcement ofa public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced The exception promotes the policy of guaranteeing

citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. It has often been invoked by California courts."
*18 Hector F v. El Centro E!ementarv Sclz. Dist.. 173 Ca!.Rptr.3d 413, 418, 227 Cal.App.4th. 331. 338 (2014) (emphasis added; internal quotation marks and citations omitted).
The same rule is found in states throughout the nation. See, e.g., Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 660, 755 S.E.2d 683, 687 (2014) (" 'Where the question is one of [a] public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown [to petition for mandamus], but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.' ") (quoting Ga.Code Ann.§ 9-6--24 (West 2014) (emphasis added))); Protect MI Constitution v. Secretarv ofState, 297 Mich.App. 553, 56667. 824 N.W.2d 299, 306 (2012), rev'd on other grounds, 492 Mich. 860, 8!9 N.W.2d428 (2012); ProgressOhio.org, Inc. v. JobsOhio, 973 N.E.2d 307, 313 (Ohio Ct.App.2012); State ex ref. Kansas Cit)J Power & Light Co. v. McBeth, 322 S.W.3d 525, 531 (Mo.20 l 0) ("[W]here the duty sought to be enforced is a simple, defmite ministerial duty imposed by law, the threshold for standing is extremely low."); Anzalone v. Administrative Office qj' Trial Court, 457 Mass. 647, 653~ 54, 932 N.E.2d 774, 781 (20 10); Stumes v. Bloomberg, 55! N. W.2d 590, 592 (S.D.l996); State ex ref. Clark v. Johnson. 120 N.TVL 562, 568--69, 904 P.2d l I, t 7-!8 (1995); Rogers 1'. I-kchfer. !76 WVa. 713, 348 S.E.2d 299 0986); Wells v. Purceli, 267 Ark. 456, 46L 592 S.W.2d 100, !03 (1979) ( "The rule is well settled, that when ... the proceedings are for the enforcement of a duty aff'ecting not a private right, but a public one, common to the whole community, it is not necessary that the relator should have a special interest in the matter." (emphasis added)); and Florida Indus. Comm'n v. State ex ref. Orange State Oil Co., 155 Fla. 772, 775,21 So.2d 599, 600--0 l ( 1945) ("We also said in that case that where the question is one ofpublic right and the object ofthe mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, it being sufficient that he is interested as a citizen in having the law executed and the duty in question enforced" (emphasis added)). 8

Ex parte State ex rei. Alabama Policy Institute,·-· So.3d ---- (2015)

Alabama's public-standing rule, as articulated in Kendrick, contemplates an action in the name of the State, which obviously has standing in its own right. Like the authorities from other states cited above, it respects the injury-in-fact requirement for general standing when a plaintiff seeks in his own name to vindicate his or her private right, while equally respecting the alternative rule (or exception) for cases brought in the name of the State to vindicate the public interest in the enforcement of duties owed to the public rather than to an individual. Several Alabama cases illustrate this fidelity.
*19 First, in Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308 (1962), a clerk of the circuit court petitioned, in his own name, for a writ of mandamus to compel the county sheriff to perform his statutory duty to file written reports with the clerk regarding the prisoners entering and leaving the county jail. The Court held that compliance with the statute was mandatory for the sheriff. 274 Ala. at !85-86. 146 So.2d at 314. But the Court also held that the circuit clerk did not have standing to seek mandamus to compel the sheriffs performance because the statute conferred no private right on the clerk. 274 Ala. at 186, 146 So.2d at 314. In so holding, the Court distinguished the private standing on which the clerk relied in error from the public standing on which the clerk could have relied:

statute required the county to provide voting machines for all elections in the county, but gave the commission discretion not to provide machines in any precinct having less than 100 registered voters. 256 Ala. at 213. 54 So.2d at 447. The respondents challenged the relator's petition on the basis that he failed to show the requested reliefwould redress any injury particular to him, because he failed to show he voted in a precinct entitled to be provided voting machines. Id
In rejecting the respondents' challenge to the relator's standing, the Court cited the public-standing rule:
"It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public."
256 Ala. at 213, 54 So.2d at 447 (emphasis added). Applying the public-standing rule, the Court concluded:

"We hold that the duty here placed on the sheriff by [the reporting statute] is a legal duty in which the public has an interest, as distinguishedfrom an official duty affecting a private interest merely. Under the settled rule, petition for mandamus to compel a public officer to perform such duty is properly brought in the name of the state on the relation of one or more persons interested in the performance of that duty. The instant petition was not so brought."

"It is clear that the act which petitioner seeks to have performed does not concern the sovereign rights of the State and is one in which the public, all the people of Jefferson County, have an interest. Petitioner's right to have the act performed is not dependent upon the fact that he may or may not vote in a voting place where the governing body is required to install a voting machine."
*20 Id (emphasis added).

274 Aia. at 186.. !46 So.2d at 3!4-·15 (emphasis added). In other words, because the duty involved was owed to the public, 9 the clerkdid not have aprivate interest in the matter, and so the action could be brought only as an on-relation action in the name of the State. 274 Ala. at 186. 146 So.2d at 315.
Second, in Kendrick, a citizen relator, in the name of the State, sued his county commission to force it to provide voting machines for elections in compliance with a State statute. The

Similarly, in Homan v. Stare ex ref. Smith, 265 Ala. 17. I8. 89 So.2d i 84, 186 (! 956), a relator filed an action seeking to force the respondents, all tl1e members of the Board of Commissioners of the Town ofMuscle Shoals,
" 'to forthwith call an election for and in the Town of Muscle Shoals, a municipal corporation in Alabama, to decide the question whether said town shall be annexed to the City of Sheffield, a municipal corporation in Alabama, and to pass the necessary Ordinance providing for such an election to be held not less than thirty days after the passage

Ex parte State ex rei. Alabama Policy Institute,--· So.3d ---- (2015)

ofthe Ordinance, in accordance with the provisions ofTitle 37, § 188.',
265 Ala. at i8, 89 So.2d at 185. The circuit court granted the petition, and, on appeal, the respondents contended that the relator did not have a sufficient interest in the action. The Homan Court rejected the argument:
"The act sought to be peifonned does not concern the sovereign rights ofthe State and is one in which the public, all of the people ofthe municipalities involved, have an interest. We hold that this mandamus proceeding was properly brought in the name of the State on the relation of I.E. Smith, and that the trial court did not err in overruling motion of appellants to require Smith to show by what authority the suit was filed in the name of the State of Alabama."

for the taxation of wine sales. A careful reading of the plurality opinion in Ex parte Alabama Educational Television Commission, 151 So.3d 283 (Ala.20l3), reveals a similar circumstance. The plaintiffs there sought not to procure an injunction requiring the commission to hold open meetings in the future pursuant to applicable law, something that could benefit the public, but to vindicate a violation of their private rights allegedly stemming from a meeting that had already occurred:
*21 "Applying the Lujan[ v. Def'enders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992),] test here, we conclude that Pizzato and Howland do not have standing to bring this action because they have failed to demonstrate 'a likelihood that [their alleged] injury will be "redressed by a favorable decision.' " Henri-Duval, supra. Pizzato and Howland argue that they were injured by the Commission's termination of their employment and that that 'termination was the direct result and consequence of the Commissioners' violation of the Open Meetings Act.'

265 Ala. at 19,89 So.2d a! 186 (emphasis added).
In Gray v. State ex ref. GmTison, 231 Ala. 229, 23!, !64 So. 293, 295 ( 1935), the Court held that a county commissioner's statutory duty to sign a warrant on appropriation for a public library was "a legal duty in which there was such public interest as warranted a proceeding by mandamus in the name
of the state." And in Marshall County Board ()t' Education
v. State ex ref. Williams, 252 Ala. 547, 551, 42 So.2d 24. 27 ( 1949), the Court held that a petition for mandamus to a county board of education to compel its performance of a statutory duty to allow school enrollment only to students of a certain age "was for the enforcement of a public duty by respondents and, therefore ... was properly brought in the name of the State on the relation of the petitioners."
Whereas in Rodgers the petitioner lacked standing to bring the action in his own name because he had no particularized injury (and he failed to invoke public standing through an onrelation action in the name of the State), in each of the other cases discussed above the relator properly invoked public standing. In each, the official duty was imposed by applicable law, and the duty owed was to the public. In particular, the right at issue was not the relator's private right.
InHenri-Duva! Winen•, LL.C., 890 So.2d at 74, the plaintiff, a winery, brought an action for its own benefit, not that of the public, to invalidate, not enforce, a statute providing

[T]he only specific relief Pizzato and Howland requested was the civil fines provided for in§ 36-25A-9(g) [, Ala.Code 1975]. Like the injury in Steel Co. [v. Citizens fr;r a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, I 40 L.Ed.2d 21 0 (1998) ], however, the alleged injury here was caused by an alleged one-time violation of the Open Meetings Act that was wholly past when Pizzato and Howland's action was filed. Pizzato and Howland have not alleged any 'continuing or imminent violation,' nor does any 'basis for such an allegation appear to exist.'"
Alabama Educ. Television Comm'n. l 51 So.3d at 288 (footnote omitted); see also id. at 29 l (Murdock, J., concurring specially) ("[W]e do not have before us a claim by which a media organization or a citizen seeks to enjoin an anticipated future violation of the statute.").
In sum, injury in fact has always been the primary focus of Alabama's general standing rule (as it has been for the other states discussed above). See King, 50 So.3d at 1059 ("Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing."). For over a century, however, Alabama has recognized that actions may be brought in the name of the State in circumstances comparable to those in which other states refer to public-interest standing. See, e.g., Brrce, 172 Aia. at 229, 55 So. at 638. As in other

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- {2015)

states, as Alabama adopted the formulaic restatement of the general standing rule (adopted by this Court in Henri-Duval), we did not overrule our cases providing for such proceedings by persons interested in the enforcement of a public duty. 10
As indicated, relators must show that they are seeking to require a "public officer to perform a legal duty in which the public has an interest." Kendrick, 256 Ala. at 213, 54 So.2d at 447. It could not be clearer that the public-the people of Alabama-have an interest in the respondents' faithful compliance with Alabama's marriage laws. The duty owed by the probate judges to follow state law in the issuance of marriage licenses is a duty owed to the public. We refer the reader in this regard to our discussion of the fundamental nature of this law and the critical interest of the public in it for the reasons discussed in Part I above. 11
That the duty and corresponding right at issue are owed to and held by the public is made even clearer when one considers the exact nature of the duty in question as one that is not even susceptible of vindication as a private right. The duty is not of some affirnmtive action on the part of the respondents, because the statute in question merely authorizes, without requiring, the issuance of licenses by a probate judge. See § 30-1-9 (a probate judge "may" issue marriage licenses). Rather, the duty sought to be enforced is in the negative, i.e., to not take certain action. It is a duty not to issue marriage licenses to same-sex couples. It is hard to conceive of a private right in any person to prevent the issuance of a marriage license to another person. The duty and the corresponding right are intrinsically public in their nature, not even susceptible to an action by an individual asserting a private right as to their enforcement.
*22 [5] Notwithstanding the foregoing, the respondents contend that the present case falls within a subcategory of onrelation cases that can only be brought in the name ofthe State by the Attorney General. They point to the below emphasized portion of the larger passage from Williams with which we began our discussion of standing:
"It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more

persons interested in the performance
of such duty to the public; but if the
matter concerns the sovereign rights of the State, it must be instituted on the relation of the Attorney General, the law officer ofthe State."
Afarshall Cnty. Bd. ofEduc. v. State ex ref. TVilliams, 252 Ala. 547, 551,42 So.2d 24,27 (1949).
In Morrison v. Morris, 273 Ala. 390,391-92, 141 So.2d 169, 169-70 (1962), the relator, a member ofthe Jefferson County Board ofEqualization, sought a writ ofmandamus against the chairman ofthe board to void a notification sent by the board to certain taxpayers that changes had been made in assessment of their property.
"Identical motions to dismiss were filed by the appellee, by the State of Alabama, and by the Attorney General individually, grounded upon the position that the appellant was not a proper party to the petition since the functioning of the Board was an activity affecting the sovereign rights of the State, necessitating the filing of such petition by the law officer of the State, the Attorney General."
273 Ala. at 39!, 141 So.2d at! 69. The Morrison Court agreed that the action fell within the sovereign rights ofthe State and as such could not be brought as an on-relation action by a private party in the name of the State. Its explanation of the applicable rule begins to shed light on its inapplicability to the present case, however:
"The conduct of County Boards of Equalization is governed by legislative act. Title 51, §§ 81-113, Code, and amendments. The authority of these Boards, having emanated from the State, it necessarily follows that the functioning of the Boards is a matter affecting the State, which has a peculiar interest in the uniformity of their activities. 'The right of a private individual to enforce by mandamus duties owing to the public is necessarily confmed to duties which are not owing to the state in its sovereign capacity. Where the duty is owing to the government as such, private individuals, even though taxpayers, cannot resort to mandamus to enforce it; .... ' 35 Am.Jur., Mandamus, § 321, citing State ex rei. r(;shee r Butler, 225 Ata. 194. 142 So. 533 [ (1932) ]. See also State

II

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

ex rel. Chilton County v. Butler, 225 Ala. 191, 142 So. 531 [ (1932)]. Where a right pertains to the sovereignty ofthe State, proceedings for the enforcement of such right are to be instituted by the Attorney General."
*23 273 Ala. at 391-92, 141 So.2d at 169-70 (emphasis added).
The rule as stated in Marshall County and Morrison is that only the Attorney General may bring an action in the name of the State if its purpose is to eriforce a "duty owing to the government as such. " The duty in those cases concerned the payment of taxes. Lewright v. Love, 95 Tex. 157, 159, 65 S.W. ! 089. 1089-90 (1902), is an early example of an action involving the sovereign rights of the state in which the court well explains the significance of this fact. In Lewright, the private relator
"file[d] a petition for a writ of mandamus against the comptroller of the state to compel him to institute a suit against the International & Great Northern Railroad Company to recover taxes alleged to be due the state upon the gross passenger earnings of a certain line of its road for the series of years extending from 1879 to 1900."

merely to the government as such, and in which he can have no private interest whatever. There are some decisions which probably hold to the contrary, but we think the great weight of authority and the better reason support the rule
announced by us. We therefore conclude that, if a suit of
this character were maintainable against the comptroller, the relator in the petition before us is not the proper party to bring it."
95 Tex. at 159-60, 65 S.W. at 1089-90 (emphasis added). The duty in Lewright-the collection of taxes owed to the government-was one owed to the government as such, and as such could only be brought by the state's attorney general.
The Lewright court's conclusion followed from the fact that taxation is a sovereign right of the state, a proposition that has been repeated by courts throughout the country, including our own. See, e.g., Doremus v. Business Council ofAlabama Workers' Comp. Sell-Insure!:~ Fund. 686 So.2d 252, 253 (Ala. J996) ("The exclusive power and authority to sue for collection of State taxes lies with the State."); State ex ref. St. Louis Young Men~\· Christian Ass'n v. Geimer, 320 Mo. 1172, 1182, l 1 S.W.2d 30, 34 (1928) ("Taxation is a sovereign right of the state...."); and Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285, 290, 46 S.E.2d 578, 581 ( 1948) (noting "the sovereign right of the State to tax as declared by the constitution"). 12

95 Tex. at 159, 65 S.W. at 1089. The Texas Supreme Court concluded that the relator could not bring the action, explaining:
"Suits to collect debts due the state must, as a rule, be brought in the name of the state, and by its principal law officer, the attorney general, or by some other law officer whose duty it is to represent the state in legal proceedings, and who may be authorized by statute to sue for it in the particular class of cases.
"In the case of Kimberl!Jl' v. Morris, 87 Tex. 637, 31 S.W. 808 [ (1895) ], the rule announced in [Union Pacific} Railroad Co. v. Hall, 91 U.S. 343. 23 L.Ed. 428 [ (1875) ], 'that private persons may move for a mandamus to enforce a public duty not due to the government as such, without the intervention ofthe government law officer,' was quoted with approval.... [I}t should be held, as it seems to us, that a citizen ofthe state, though a taxpayer, cannot maintain a suit to compel an officer to perform a function due

*24 Alabama on-relation cases bear out this distinction between duties owed to the govemment and duties owed to the public. This Court has addressed cases concerning the sovereign rights of the State in which the Court concluded that a private party could not bring the on-relation action. In Morrison, as already noted, the Court concluded that the duty of the Board of Equalization was owed to the government as such, not to the public at large, because it implicated the power of taxation.
Another such case, heavily relied upon by the respondents, is S'tate ex ref. Foshee v. Butler. State Tax Commissioner. 225 Ala. 194, 142 So. 533 (1932), a case in which the relator, a resident citizen and taxpayer ofChilton County, sought a writ of mandamus to compel the State tax commissioner to assess the property ofthe Alabama Power Company in that county at 60 percent instead of45 percent. The Court concluded that the
"Relator shows no official duty to the public at large, but only to the state in its sovereign capacity. The general rule is that an individual cannot eriforce a right owing to the

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

government; certainly not in any case, unless he sustains an injury peculiar to himself...
"He is, as is Chilton [C]ounty in its case, merely seeking to force the state, by the unauthorized use of its name, to control an administrative function of one of its officers, in respect to a matter which is the prerogative of the state."
225 Ala. at 195. 142 So. at 534.

*25 "Relator here is seeking to use the name of the state to enforce a public duty to it in its sovereign right which belongs exclusively to [the state], and it has not delegated to the county nor to any one the right to enforce the duties to it of its own administrative officer. The Attorney General and perhaps the Governor are vested with the ultimate power, conferred by the sovereignty, to control this sort of litigation."

The Foshee Court's mention of the case of "Chilton County" is a reference to State ex rei. Chilton County v. Butler,

Chilton Coun(v, 225 Ala. at 193-94, 142 So. at 533. 13

State Tax Commissioner, 225 Ala. 19!, 142 So. 531 (1932), what Foshee describes as the "companion case" to Foshee, 225 Ala. at 194, 142 So. at 533. In Chilton County, the county likewise brought an on-relation action to force the tax commissioner to assess the property of Alabama Power Company in that county at 60 percent instead of45 percent. In a passage that explains the outcome in both cases, the Court stated:

In a separate argument, the respondents contend that the above-emphasized language states that the petitioner must have some "injury peculiar to himself' in order to qualifY as a relator who can invoke the standing of the State in an on-relation action. Respondents misread Foshee and Chilton County and ignore other Alabama authorities in reaching this conclusion. Again, in Foshee, the Court noted that the "[r]elator shows no official duty [by the defendant] to the

"In respect to petitions for mandamus and other remedial writs when they seek to enforce private rights, petitioner may pursue such remedy without the use of the name of the state.... But when relief is sought against a public officer to require the performance of a public duty to the general public as distinguished from

public at large, but only to the state in its sovereign capacity. The general rule is [indeed] that an individual cannot enforce
a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to himself." 225 Ala. at 195. 142 So. at 534 (emphasis added). In other words, a private party cannot bring an action that concerns a duty owed to the government as such, unless the private party also seeks to vindicate or obtain redress for his or her own private rights or m. J.ury reIatm. g thereto. 14

the state in its sovereign capacity,

the petition is properly brought in the

[6] Granted, Kendrick and similar cases do refer to on-

name of the state on the relation of

relation actions brought in the name of the State "on the

petitioner, a member of the general public who may have such right."

relation of one or more persons interested in the peiformance of[a) duty" to the public. E.g., Kendrick~ 256 Ala. at 213, 54

Chiiton Cmmty, 225 Ala. at 192---93, 142 So. at 532. Both Chilton County and Foshee, however, involved the tax commissioner. The duty involved was one owed to the government as such, not to the public at large:

So.2d at 447. Even if we were to now consider this language as a basis for qualifYing prospective on-relation plaintiffs beyond the holding of mere citizenship, the nature of the "interest" we would impose in order to qualifY a relator on behalf of the State, at least in the unique situation where, as

"So that when a county undertakes to use the name of the state to require state officers to fix a certain value upon property for taxation generally, it is seeking to enforce a claim which involves sovereign capacity, rather than one which relates to a function delegated to the county, and does not show a private right with the privilege of using the name of the state as a mere formal party. 38 Corpus
Juris, 838.

here, the Attorney General is unavailable to fulfill his normal role ofrepresenting the public interest, certainly would not be an interest that rises to the same level required of plaintiffs under Lujan. The State itself supplies that standing. The only question would be whether the relator has a sufficient "peculiar interest" in the matter or a sufficient relationship to the State, coupled with the ability to do so, that he or she can be expected to prosecute the matter vigorously to the end of assuring a proper adversarial proceeding for its

just resolution. Ultimately, we need not resolve the question

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

whether there is a need for such an interest that would bear on API's and ACAP's status as relators in this proceeding. We are clear to the conclusion that Judge Enslen more than satisfies such criteria. As an individual, he would have the same interest held by other members of the public, yet, in his official capacity, he obviously has a relationship with the State and an interest in discharging his ministerial duty in a manner that is consistent with both Alabama law and the United States Constitution. Moreover, in his judicial capacity, his jurisdiction includes cases involving adoptions, administration of estates, gmirdianships, and conservatorship in which he must assess whether a marriage exists. In other words, Judge Enslen's position will require him to confront the question of the validity of purported "marriages" licensed by other probate judges and to address unavoidable derivative questions. Indeed, even if we were to consider the issue before us as a matter concerning the "sovereign right" of the State as urged by the respondents, Judge Enslen would well qualify to prosecute it in the name of the State under the circumstances presented. 15
*26 Judge Reed also argues that there must be a limitation on public standing because "[a]lllaws and executive actions affect the public in some sense, directly or indirectly." But he cannot point to any authority or to the articulation of some sort of rule that would explain where we are to draw the line between those "public-duty" cases that members ofthe public can bring and those that only the Attorney General can bring. The only line articul<.tted in precedents here or elsewhere is between those cases that involve a duty owed to the public and those that involve a duty owed to the government as such. We can find no line of the nature he suggests differentiating between public-duty cases that can be brought by a citizen and those that can be brought only by the Attorney General, with one exception: Many states have limited the availability of on-relation or comparable actions on behalf of the state to "matters of great public interest" or "matters of great importance." We have no problem applying such a limitation in the present case, for we can think of no matter of greater public interest or importance than the one before us.
It is beyond question that the duty to issue marriage licenses only in accordance with Alabama law is a duty owed to the public for its benefit. The failure to perform that duty damages the framework oflaw and institutions the people have chosen for themselves. The proceeding before us is properly before us as an on-relation action to enforce a duty to the publicthe people who must live their lives and raise their families

within that framework and within the society made possible thereby.
C. The Federal Court Order Does Not Prevent this Courtfrom Acting
[7] The final procedural issue we consider is whether the federal court's order prevents this Court from acting with respect to probate judges of this State who, unlike Judge Davis in his ministerial capacity, are not bound by the order of the federal district court in Strawser. The answer is no.
[8] [9] Although decisions of state courts on federal questions are ultimately subject to review by the United States Supreme Court, 28 U .S.C. § l257(a), as are decisions of federal courts, neither "coordinate" system reviews the decisions of the other. As a result, state courts may interpret the United States Constitution independently from, and even contrary to, federal courts. 16 For that matter, it is even true that " '[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.'" Camreta v. Greene, -U.S.---,--, 131 S.Ct. 2020, 2033 n. 7, 179 L.Ed.2d l JI8 (20ll)(quoting 18 J. Moore et al., Moore's Federal Practice§ l34.02[1](d], pp. 134-26 (3d ed.2011)). As the Seventh Circuit Court of Appeals noted in Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.l995),. "(federal district court decisions] cannot clearly establish the law because, while they bind the parties by virtue ofthe doctrine ofres judicata, they are not authoritative as precedent and therefore do not establish the duties of nonparties."
*27 [10] Numerous Alabama cases confirm this reasoning. "(I]n determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority." Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala.2004 ). See also Do!gencorp, inc. v. Taylor, 28 So.3d 737. 744 n. 5 (A!a.2009) (noting that "United States district court decisions are not controlling authority in this Court"); Er parte Hair:. 6 So.3d 452, 458 n. 5 (Aia.2008), as modified on denial of reh'g ("[W]e are not bound by the decisions of the Eleventh Circuit."); Ex parte Johnson, 993 So.2d 875, 886 (Ala.2008) ("This Court is not bound by decisions of the United States Courts of Appeals or the United States District

Ex parte State ex rei. Alabama Policy Institute, --- So.3d --·· (2015)

Courts...."); Buist v. Time Domain Corp., 926 So.2d 290,

federal court's interpretation. In our

297 (Ala.2005) ("United States district court cases ... can

federal system, a state trial court's

serve only as persuasive authority."); Amerada Hess Corp.

interpretation of federal law is no less

v. Owens-Corning Fiberglass Cmp., 627 So.2d 367. 373

authoritative than that of the federal

n. 1 (Ala.l993) ("This Court is not bound by decisions of lower federal courts."); Preferred Risk Mut. Ins. Co. v. Ryan,

court of appeals in whose circuit the trial court is located."

589 So.2d 165, 167 n. 2 (Aia.l99l) ("Decisions offederal courts other than the United States Supreme Court, though persuasive, are not binding authority on this Court.").

*28 Lockhart v. Fretwell, 506 U.S. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482 n. 3, 94 S.Ct.

[11] [12] Federal courts have recognized that state-court 1209, 39 L.Ed.2d 505 (1974) (Rehnquist, J., concurring) review of constitutional questions is independent of the same (noting that a state court "would not be compelled to follow" authority lodged in the lower federal courts. " 'In passing a lower federal court decision).

on federal constitutional questions, the state courts and the

lower federal courts have the same responsibility and occupy

the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.' " United Statl!s ex rl!l.

III. Respondents' Ministerial Duty is Not Altered by the United States Constitution

Lawrence v. Woods, 432 F.2d i072. !075 (7th Cir. 970) The United States District Court for the Southern District

(quoting State v. Coleman, 46 N.J. !6. 36, 2!4 A.2d 393. 403 of Alabama has declared that Alabama's laws that define

(! 965)).

marriage as being only between two members of the

"Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions. Indeed, such results were contemplated by our federal system,

opposite sex-what has been denominated traditional marriage--violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy L we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.

and neither sovereign is required to, nor expected to, yield to the other."

It is important to observe at the outset that some of the federal courts that have declared traditional marriage laws

Surrick \'. Killion, 449 F.3d 520, 535 (3d Cir.2006).

unconstitutional have insinuated that these marriage laws are something new by pointing to the marriage laws and

The United States Supreme Court has acknowledged that state courts "possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations offederallaw." ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 ( 1989}. Two Justices of the United States Supreme Court in special writings have elaborated on this principle.

amendments that states began enacting in the early 1990s. By focusing on this spate oflaws, the federal courts have asserted that marriage laws were enacted to target homosexuals. This line of argument was born in United States v. Windsor, U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013}, when the United States Supreme Court concluded that Congress's passage of the Defense of Marriage Act ("DOMA") in 1996 demonstrated a clear animus toward homosexuals because

"The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any

Congress rarely chose to enter the realm of domestic-relations law. But as Windsor itself observed, domestic law historically is controlled by the states. 1"'

other principle of federal law requires

that a state court's interpretation of

For example, in Alabama it is true that the Act was enacted

federal law give way to a (lower)

in 1998, and that the Amendment was ratified in 2006. Laws

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

that include the concept of marriage as between a husband and wife have existed, however, since the inception of the Alabama as a state in 1819. 18 Such laws include the full statutory scheme set out in the provisions ofChapter 1 ofTitle 30 (and their predecessors dating back 200 years) by which the legislature has provided for the affirmative licensing and recognition of "marriage," including the provision in § 30~ l--9 (and its predecessors) for the licensing of "marriages" and the provisions in § 30~ I~7 (and its predecessors) for the solemnization of "marriages." And it is clear that the term "marriage" as used in all those laws always has been, and still is (unless the courts can conjure the ability to retroactively change the meaning of a word after it has been used by the legislature), a union between one man and one woman.
Further, the contemplated change in the defmition (or "application" if one insists, although this clearly misapprehends the true nature of what is occurring) of the term "marriage" so as to make it mean (or apply to) something antithetical to that which was intended by the legislature and to the organic purpose of Title 30, Chapter 1, would appear to require nothing short of striking down that entire statutory scheme. 19 And beyond even that statutory scheme, what ultimately is at issue is the entire edifice of family law discussed previously, an edifice that has existed in some form since before the United States was even a country. 20 See 1 Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama Family Law§ 1:1 (2008) (observing that "a whole range of state and federal legal rights and obligations depend on the existence of a valid marriage. If there is no legal marriage, then those rights and obligations do not apply. These legal rights and obligations are basic to the well-being of society, as the United States Supreme Court has noted in describing the importance ofmarriage as having a 'basic position' in 'society's hierarchy ofvalues.' "(quoting Boddie v Connecticut. 401 U.S. 371,374, 91 S.Ct. 780,28 L.Ed.2d 113 (I 971)). It is no small thing to wipe away this edifice with a wave of the judicial wand.
*29 It is in this context that we turn then to the specific reasoning employed by the federal district court, reasoning that can be boiled down to the following train of thought. (1) Marriage is a fundamental right. (2) Under the Due Process and Equal Protection Clauses of the United States Constitution, laws that impinge upon fundamental rights are subject to "strict scrutiny" and are sustained only if supported by a "compelling state interest" and if they are "narrowly tailored" to fulfill that interest. (3) The interests cited by the State of Alabama in support of its laws limiting

marriage to opposite-sex couples are either not compelling state interests or the limitation is not so narrowly tailored as to meet the stated interest. (4) Therefore, Alabama's marriage laws impermissibly violate the right to marry and consequently "violate the Due Process Clause and Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution."
[13] [14] [15] The Searcy I plaintiffs' first constitutional claim that led to the federal court's decision and the reasoning it adopted is one that is often repeated in the marriage debate. The Searcy I plaintiffs contended that Alabama's marriage laws violate the Equal Protection Clause because those laws unconstitutionally discriminate against same-sex couples in favor of opposite-sex couples by conferring benefits on the latter under the law not accorded to the former.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.... The general rule is that legislation is presumed to be valid and will
be sustained if the classification drawn by the statute is
rationally related to a iegitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.
"The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement ofany legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy-a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest."
Tex. Cleburne Living Cti', 473 U.S. 105 S.Ct. 3249. 87 L.Ed.2d 313 ( i (emphasis added and citations omitted).
[16] The difficulty with the Searcy I plaintiffs' equalprotection claim is that, in order to trigger a "strict-scrutiny" analysis, the offending law must discriminate against a suspect class, e.g., a class determined by race, alienage,

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

or national origin. It is often contended that although laws upholding traditional marriage do not implicate any of these suspect classes, they do discriminate based on gender, a category the United States Supreme Court has stated is sometimes entitled to heightened scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515, 532, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (observing that "[w]ithout equating

muster. We have reviewed at length the more than rational bases for Alabama's understanding of marriage in Part I, above. As discussed, one legitimate interest behind the laws (among others) is recognizing and encouraging the ties between children and their biological parents. Alabama's marriage laws clearly survive rational-basis review.

gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed[ v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971),] decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men)" (footnote omitted)).

[18] The Searcy I plaintiffs' second contention was that Alabama's marriage laws violate the Due Process Clause of the Fourteenth Amendment because, according to their complaint, "[t]he Constitution protects the rights and liberties of married, homosexual couples just as it does heterosexual, married couples." As we previously noted, the federal district

*30 The fact is, however, that traditional-marriage laws do not discriminate based on gender: All men and all women are equally entitled to enter the institution of marriage. Only by redefining the term "marriage" to mean something it

court latched onto this argument, stating that "[n]umerous cases have recognized marriage as a fundamental right." In this way, the federal district court subjected Alabama's marriage laws to strict-scrutiny analysis.

is not (and in the process assuming an answer as part of

the question), can this statement be challenged. Put in the

negative, traditional-marriage laws do not discriminate on

the basis of gender because all men and all women are equally

restricted to marriage between the opposite sexes. See,

e.g., Bishop v. United States ex ref. Ho!c/er, 962 F.Supp.2d

1252, 1286 (N.D.Okla.2014) ("Common sense dictates that

the intentional discrimination occurring in this case has

nothing to do with gender-based prejudice or stereotypes,

and the law cannot be subject to heightened scrutiny on that

basis."); Geiger v. Kitzhaber, 994 F.Supp.2d l I 28, 1!39--

40 (D.Or.20l4) ("The state's marriage laws discriminate

based on sexual orientation, not gender. In fact, the ban

does not treat genders differently at all. Men and women

are prohibited from doing the exact same thing: marrying

an individual of the same gender."). Thus, if such laws

discriminate against a classification, it is one based on sexual

orientation, not gender. As the federal district court itself

observed in its memorandum opinion in Searcy 1: "Eleventh

Circuit preceden [t] holds that such classification is not

suspect. Loftonv. Secretary ofDep't ofChildren and Famizv

Services, 358 F.3d 804. 818 (llth Cir

,_7,' See also

To support its assertion that "marriage" is a fundamental right, the federal district court cited such cases as Loving v. Virginia, 388 U.S. l. 87 S.Ct. !817, l8 L.Ed.2d !010 (1967); Meyerv. Nebraska, 262 U.S. 390,43 S.Ct. 625,67 LEd. [042 (!923); and Griswoldv. Connecticut, 381 U.S. 479,85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The federal district court is, of course, correct that there are several United States Supreme Court cases stating such a principle. In Zablocki v. Redhail. 434 U.S. 374,383-84, 98 S.Ct. 673,54 L.Ed.2d 618 ([978), for example, the Court stated:" 'Marriage is one ofthe "basic civil rights of man," fundamental to our very existence and survival.' [Loving, 38/l U.S.] at 12, 87 S.Ct. 1817, quoting Skinner v. Oklahoma ex rei. IVil!iamson. 316 U.S. 535. 541, 62 S.Ct. ll J0, 86 L.Ed. 1655 ( l "In Griswold, the Court stated that marriage is "a right of privacy older than the Bill ofRights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." 381 U.S. at 486, 85 S.Ct. 1678. In Meyer, the Court recognized that "the right of an individual ... to marry, establish a home and bring up children" is protected by the Due Process Clause. 262 U.S. at 399. 43 S.Ct. 625.

DeBoer v.

, 772 F.3d 388. 4!3 (6th Cir.20l4) (noting

that "[t]he Supreme Court has never held that legislative *31 What the federal district court ignored in these cases,

classifications based on sexual orientation receive heightened however, is that the Supreme Court plainly was referring

review and indeed has not recognized a new suspect class in to traditional marriage when it proclaimed that marriage

more than four decades").

is a fundamental right. See, e.g., DeBoer. 772 F.3d at 412

(observing that "[w]hen Loving and its progeny used the

[17] Because Alabama's marriage laws are not subject to word marriage, they did not redefine the term but accepted

strict scrutiny under the Equal Protection Clause, they need its traditional meaning"). This is evident from the fact that

only survive a rational-basis analysis to pass constitutional in each of those cases the discussion of the right involved

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

children. It is also apparent from the fact that, as the federal district court discussed, in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810,93 S.Ct. 37,34 L.Ed.2d 65 (1972), the Supreme Court summarily dismissed "for want of a substantial federal question" an appeal from the Minnesota Supreme Court in which that court concluded that a state statute defining marriage in the traditional manner did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Despite disagreement among the federal circuit courts of appeal regarding Baker 's strength as precedent in the wake of Windsor, 22 Baker indisputably demonstrates that, in the plethora ofcases in which the Supreme Court has discussed a "right to marriage," it was not referring to an institution that formally recognized homosexual relationships.
Thus, what the federal district court has done is to declare an entirely new concept of "marriage" a fundamental right under the guise of the previously understood meaning of that institution. It is, plainly and simply, circular reasoning-it assumes the conclusion of the matter, i.e., that marriage as newly defmed is a fundamental right, in the premise of the question without acknowledging that a change of terms has occurred. 23 As one federal appeals court judge has noted: "To now define the previously recognized fundamental right to 'marriage' as a concept that includes the new notion of 'same-sex marriage' amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end." 24 Bostic v. Schaefer, 760 F.3d 352, 391 (4th Cir.20l4) (Niemeyer, J., dr.ssentm. g). -~·s

description' of the asserted fundamental liberty interest. [Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ]."

*32 Washington v. G!ucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).

"It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 [ (2003)]. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000."

Windsor,

U.S. at - - , 133 S.Ct. at 2715 (Alito, J.,

dissenting) (footnote omitted). See also Hernandez v. Robles,

7 N.Y.3d 338, 361, 821 N.Y.S.2d 770, 777, 855 N.E.2d

I, 8 (2006) ("Until a few decades ago, it was an accepted

truth for almost everyone who ever lived, in any society in

which marriage existed, that there could be marriages only

between participants of different sex."). 26 See Part I, supra.

The ostensible reason for the federal district court's judicial sleight of hand is apparent enough: conferring fundamentalright status upon a concept of marriage divorced from its traditional understanding is, to say the least, curious.

"[W]e have regularly observed that the Due Process Clause

specially protects those fundamental rights and liberties

which are, objectively, 'deeply rooted in this Nation's

history and tradition,' [Moore v.

Ohio, 43 U.S. 97 S.Ct. l

] (plurality opinion);

v. Massachusetts, 291 U.S.

105 l54 S.Ct.

78 L.Ed.

('so rooted in

the traditions and conscience of our people as to be ranked

as fundamental'), and 'implicit in the concept of ordered

liberty,' such that 'neither liberty nor justice would exist if

they were sacrificed,' Palko v. Connecticut, 302 U.S. 319,

325, 326 [58 S.Ct. 149, 82 L.Ed. 288] (1937). Second, we

have required in substantive-due-process cases a 'careful

Beyond the obvious historical problem with labeling marriage as defined by the Searcy I plaintiffs a fundamental right, there exists another logical problem with doing so. Proponents of same-sex marriage repeatedly contend that extending the benefits of marriage to their relationships carries no religious or moral dimension and therefore does not constitute a fundamental shift in the social fabric of America, because marriage, as far as the government is concerned, is simply a civil acknowledgment of a legal bond. See Goodridge v. Dep't ofPub. Health, 440 Mass. 309,321, 798 N.E.2d 941, 954 (2003) ("We begin by considering the nature of civil marriage itself. Simply put, the governn1ent creates civil marriage.... [C]ivil marriage is, and since preColonial days has been, precisely what its name implies: a wholly secular institution."). 27 If marriage truly is nothing more than a state-granted legal license, it is difficult to see how it could rise to the status of a fundamental right of such importance that the United States Constitution prohibits states

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

from approving only the historically accepted understanding of the institution.
Before we follow the proponents of same-sex marriage down the road toward fmding their new defmition of marriage constitutionally significant (but somehow socially innocuous), we need to know what characteristic ofmarriage is so fundamental that it warrants constitutional protection. As the GlucksbergCourt observed: "[A] 'careful description' of the asserted fundamental liberty interest" is required in substantive-due-process cases. 521 U.S. at 721, 1!7 S.Ct. 2258. Although it is undeniable that the institution of marriage is fundamental, 28 it is also undeniable that several aspects of marriage are not treated as fundamental. 29 The United States Supreme Court observed in Windsor that

the rationale that government had no interest in interfering with the sexual conduct of consenting adults in the privacy of their bedrooms. 30 That rationale does not work here because same-sex partners expressly seek public state-government approval of their relationships. In other words, in Lawrence the protected constitutional interest was personal privacy, but here the Searcy I plaintiffs alleged that there is a constitutional interest in the public recognition of unions between couples of the same sex that overrides any interest Alabama has in limiting such unions to opposite-sex couples. Neither Lawrence, nor Windsor, nor any other decision of the United States Supreme Court has found such a fundamental right, and such a right cannot with any logic be embedded in the socalled right to privacy that has been trumpeted by the Supreme Court since Griswold

"[m]arriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, § 5142 (2012), with N.H.Rev.S1aL Ann. § 457:4 (West Supp.2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful-such as Iowa and Washington, see Iowa Code § 595.19 (2009); Wash. Rev.Code § 26.04.020 (2012}-prohibit the practice)."

*33 FVindsor.

U.S. at · , !33 S.Ct. at 2691 -92.

No one contends (yet) that state age and consanguinity

requirements violate a fundamental right to marriage even

though such requirements clearly limit a person's choices as

to whom the person may marry. What differs, then, about

the claims of same-sex partners? What of their relationship

rises to the level of a constitutional right with which the states

allegedly may not interfere?

One possible answer is the act of sex, albeit absent potential procreative consequences. The United States Supreme Court has stated that sexual intercourse is protected by the right to privacy allegedly embedded in the "substantive" component ofthe Due Process Clause. Indeed, this was the constitutional basis for the Court's striking down state sodomy laws in Lawrence v. Texas. 539 U.S. 5.58, 123 S.Ct. 2472, 156 LEd.2d 508 (2003). But the Lawrence Court did so under

Another possible answer to the question is love. Under this theory, a person has a right to marry the person he or she loves regardless ofthat person's gender. This notion has broad public appeal and is, perhaps, the mantra most repeated in public discussions of this matter. But although love may be an important factor in a lasting marriage, civil marriage has no public interest in whether the people seeking a marriage li~ense love one another. "[N]o State in the country requires couples, whether gay or straight, to be in love." DeBoer, 772 F.3d at 407. State governments do not inquire about whether couples love each other when they seek a marriage license, nor do governments have any justifiable reason to do so. Moreover, if love was the sine qua non of marriage, then polygamy also would be constitutionally protected because
"there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage." 3 1
*34 Id
Proponents of the new definition of marriage therefore leave us with an untenable contradiction. On the one hand, they insist that expanding the defmition of marriage to include relationships between members of the same sex constitutes nothing more than offering marriage licenses to another class of individuals. It is akin to modifying the age of consent for marriage or changing the length of residency required in

Ex parte State ex rei. Alabama Policy Institute,··· So.3d ···- (2015)

a state before one can receive a marriage license, changes that are wholly within state government's power to modifY, without altering the nature of marriage. On the other hand, proponents of same-sex marriage contend that this new definition ofmarriage is so fundamental that the Constitution prohibits states from maintaining the traditional definition of marriage, yet they are unable to articulate a fundamental element of their definition of marriage that would justifY government sponsorship of it. Thus, under their own theory, either the aspect of marriage the same-sex partners insist should be included in the institution is not fundamental to its nature, in which case Alabama's laws enforcing the traditional definition of marriage are not unconstitutional, or marriage is a fundamental right but the characteristics upon which same-sex partners necessarily must hinge their definition of marriage fail to explain government's interest in marriage.

33, 92 S.Ct. 1526, 32 L.Ed.2d 15 (I 972))); Williams v. ,Vorth Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 LEd. 279 (I 942) ("The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of [the] commanding problems...."). In short, government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by State law.
*35 In his dissent in Goodridge, Judge Cordy summarized well many of the public purposes of traditional marriage, and, therefore, why traditional marriage is a rational state policy:

Having discarded several candidates for what aspect of

marriage is so fundamental that it warrants constitutional

protection-age, consanguinity, sex, or love-we are

left with the characteristic that has remained unchanged

throughout history: marriage has always been between

members of the opposite sex. The obvious reason for

this immutable· characteristic is nature. Men and women

complement each other biologically and socially. Perhaps

even more obvious, the sexual union between men and

women (often) produces children. 32 Marriage demonstrably

channels the results of sex between members of the opposite

sex-procreation-in a socially advantageous manner. 33 It

creates the family, the institution that is almost universally

acknowledged to be the building block of society at large

because it provides the optimum environment for defming the

responsibilities ofparents and for raising children to become

productive members of society. See, e.g., Lehr v. Robertson,

463 U.S. 248, 256-57. 103 S.C!. 2985. 77 L.Ed.2d 614 ( 1983)

("The institution of marriage has played a critical role both

in defining the legal entitlements of family members and

in developing the decentralized structure of our democratic

society.... [A]s part of their general overarching concern

for serving the best interests of children, state laws almost

universally express an appropriate preference for the formal

family."); Smith r. Organization of Foster Families For

Equal. & Reform. 431 U.S. 816, 843--44, 97 S.O. 2094,

53 L.Ed.2d 14 (I

("[T]he importance of the familial

relationship, to the individuals involved and to the society,

stems from the emotional attachments that derive from the

intimacy of daily association, and from the role it plays

in 'promot(ing) a way of life' through the instruction of

children.") (quoting Wisconsin v. Yoder. 406 U.S. 205. 23i-

"Civil marriage is the institutional mechanism by which

societies have sanctioned and recognized particular family

structures, and the institution of marriage has existed

as one of the fundamental organizing principles of

human society. See C.N. Degler, The Emergence of

the Modem American Family, in The American Family

in Social-Historical Perspective 61 (3d ed.l983); A.J.

Hawkins, Introduction, in Revitalizing the Institution of

Marriage for the Twenty-First Century: An Agenda for

Strengthening Marriage xiv (2002); C. Lasch, Social

Pathologists and the Socialization of Reproduction, in

The American Family in Social-Historical Perspective,

[61,] at 80 [ (3d ed.1983) ]; W.J. O'Donnell & D.A

Jones, Marriage and Marital Alternatives 1 (1982);.

L. Saxton, The Individual, Marriage, and the Family

229-230, 260 (1968); M.A. Schwartz & B.M. Scott,

Marriages and Families: Diversity and Change 4 (1994);

Wardle, 'Multip!v cmd Replenish'.· Considering Same--Sex

Marriage in Light o(State li1terests in Marital Procreation.

24 Harv. J.L. & Pub.

771, 777780 (2001); J.Q.

Wilson, The Marriage Problem: How Our Culture Has

Weakened Families 28, 40, 66-67 (2002). Marriage has

not been merely a contractual arrangement for legally

defining the private relationship between two individuals

(although that is certainly part of any marriage). Rather,

on an institutional level, marriage is the 'very basis

of the whole fabric of civilized society,' J.P. Bishop,

Commentaries on the Law of Marriage and Divorce, and

Evidence in Matrimonial Suits § 32 (1852), and it serves

many important political, economic, social, educational,

procreational, and personal functions.

Ex parte State ex rei. Alabama Policy Institute,--- So.3d •••• {2015)

"Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. See Mi(ford v. Worcester. 7 Mass. 48, 52 (1810) (civil marriage 'intended to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species'). See alsoP. Blumstein & P. Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra at 61; G. Douglas, Marriage, Cohabitation, and Parenthood-From Contract to Status?, in Cross Currents: Family Law and Policy in the United States and England 223 (2000); S.L. Nock, The Social Costs of De-Institutionalizing Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage, supra at 7; L. Saxton, supra at 239-240, 242; M.A. Schwartz & B.M. Scott, supraat4-6; Wardle, supra at 781--796; J.Q. Wilson, supra at 23-32. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modem age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.
*36 "The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. See G.L. c. 209C, § 6 ('a man is presumed to be the father of a child ... if he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce'). Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of

fatherhood. See J.Q. Wilson, supra at 23-32. See also P. Blumstein & P. Schwartz, supra at 29; C.N. Degler, supra at 61; G. Douglas, supra at 223; S.L. Nock, supra at 7; L. Saxton, supra at 239-240, 242; M.A. Schwartz & B.M. Scott, supra at 4-6; Wardle, supra at 781-796. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.
"The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. SeeP. Blumstein & P. Schwartz, supra at 26; C.N. Degler, supra at 61; S.L. Nock, supra at 2-3; C. Lasch, supra at 81; M.A. Schwartz & B.M. Scott, supra at 6-7. More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. See M. Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America 10 (1985); C. Lasch, supra; L. Saxton, supra at 260; J.Q. Wilson, supra at 221."
Goodridge. 440 Tvlass. at 381 -84, 798 N.E.2d at 995--96 (Cordy, J., dissenting) (footnote omitted). 34
Ultimately, these are the purposes of marriage that relate to government. Govermnent is concerned with public effects, not private wishes. The new definition ofmarriage centers on the private concerns of adults, while the traditional definition focuses on the benefits to society from the special relationship that exists between a man and a woman, i.e., the effects for care ofchildren, the control ofpassions, the division ofwealth in society, and so on.
*37 The federal district court and other courts that have struck down traditional marriage laws have stated that states cannot distinguish traditional marriage on the basis of procreation and the beneficial effects the institution provides to children because some married couples cannot or do not have children, and yet govermnent recognizes their marriages. This argument is nothing more than an attempt

Ex parte State ex rei. Alabama Policy Institute,-·· So.3d ---- (2015)

to use the exception to disprove the rule. 35 The fact that many people do not vote in elections does not invalidate the value of using elections to allow people to chose their government leaders. "Marriage laws are not aimed at making all married sex procreative but only seek to encourage that all man-woman sex occurs in marriage, as a protection for when such sex is procreative-a protection for the baby, the often vulnerable mother, and society generally." Stewart, 3! Harv. J.L. & Pub. Pol'y at 344-45. 36
The federal district court's memorandum opinion in Searcy I states that "[t]he 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." But " 'the relevant inquiry here is not whether excluding same-sex couples from marriage furthers [the state's] interest in steering man-woman couples into marriage.' Rather, the relevant inquiry is whether also recognizing same-sex marriages would further [the state's] interests." Bostic, 760 F.3cl at 394 (Niemeyer, J., dissenting) (quoting state-appellant's brief). In other words, the state simply has to show that recognizing and encouraging marriage between men and women promotes responsible procreation, not that excluding same-sex couples from marriage encourages heterosexuals to marry. Even ifpreventing homosexuals from marrying will . not increase the likelihood that children are born in wedlock, this does not address the fact that offering marriage solely to heterosexuals indisputably serves as a tool to prevent out-ofwedlock pregnancies. Moreover, the state's policy need only advance a rational goal; it does not need to demonstrate that it is the only way to advance the goal or even that it is the best way to do so. "[R]ational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges." DeBoer, 772 F.3d at 405.
[19] Under United States Supreme Court precedent, another potential method of finding traditional man·iagc unconstitutional is the notion that Alabama's limitation of marriage to heterosexual unions is based solely on animus toward homosexuals and that, therefore, the laws violate both the Equal Protection Clause and the Due Process Clause. The federal district court did not expressly articulate this position, but doing so would require reliance upon Romer Evans, 517 U.S. 620, 116 S.Ct. 1620, i 34 LEd.2d 855 (l996),Lawrence, and Windsor.

*38 In Romer, the Supreme Court struck down an amendment to the Colorado Constitution that ''prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect" the status of persons based on their " 'homosexual, lesbian or bisexual orientation, conduct, practices or relationships.'" 517 U.S. at 624, 116 S.Ct. 1620. The Court did so because the amendment "singl[ed] out a certain class of citizens for disfavored legal status," 517 U.S. at 633, 116 S.Ct. 1620, and "raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class ofpersons affected." 517 U.S. at 634, 116 S.Ct. 1620. In short, the amendment "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else." 517 U.S. at 635, !16 S.Ct. 1620.
In Lawrence, the Court struck down a Texas law criminalizing sodomy because, it said, homosexuals "are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." 539 U.S. at 578, 123 S.Ct. 2472.
In Windsor, the Court struck down a portion of the Federal Defense of Marriage Act ("DOMA") because Congress's intrusion into a traditional state-law area demonstrated that DOMA Was "motived by an improper animus."-- U.S. at ---, 133 S.Ct. at 2693. The Court explained that DOMA's aim was to "interfere[ ] with the equal dignity of same-sex marriages" conferred by New York's laws on marriage. !d. The Court added that "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequaL The principal purpose is to impose inequality, not for other reasons like governmental efficiency."- U.S. at--, Id at 2694. In short, "the principal purpose and the necessary effect of [DOMA] are to demean those persons who are in a lawful same-sex marriage."- U.S. at--, !d. at 2695. 37
The theme from Romer, Lawrence, and Windsor that government cannot single out a group for disfavored treatment solely on the basis of hatred for that particular group does not apply to Alabama's marriage laws. Although Alabama's limitation of marriage to opposite-sex couples prevents homosexual couples from receiving marriage licenses, the laws do not do so for the purpose of singling out same-sex partners for disfavored status. As we have already seen, the marriage laws undeniably have several purposes that have absolutely nothing to do with attempting to treat a

Ex parte State ex rei. Alabama Policy Institute, --- So.3d --·- (2015)

particular group in an unequal fashion. The laws attempt to protect children produced in opposite-sex relationships; they fashion a system for parental legal responsibilities; and they encourage family structure and enable formative education and socialization of children. The lin1itation of marriage to opposite-sex couples has so long existed in law that ascribing its existence solely to hatred toward homosexuals is simply absurd on its face. See Lawrence, 539 U.S. at 570, 123 S.Ct. 2472 ("American laws targeting same-sex couples did not develop until the last third of the 20th century."). Even Alabama's marriage amendment, which is of a more recent

in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence. 539 U.S. 558, 123 S.Ct. 2472, and whose relationship the State has sought to dignifY."

Windsor. U.S. at

l 33 S.Ct. at 2692, 2694; see also

-U.S. at

133 S.Ct. at 2693 ("The history ofDOMA's

enactment and its own text demonstrate that interference with

the equal dignity of same-sex marriages, a dignity conferred

by the States in the exercise of their sovereign power, was

more than an incidental effect of the federal statute.").

vintage,

*39 "codified a long-existing, widely held social norm already reflected in state law. '[MJarriage between a man and a woman,' as the Court reminded us just last year, 'had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.' Windsor. 133 S.Ct. at 2689."

Several courts that have declared state marriage laws

unconstitutional have relied on Windsor's "equal dignity"

language. See, e.g., Baskin v. Bogan, 766 F.3d 648, 671

(7th Cir.2014) (emphasizing Windsor's statement that" 'no

legitimate purpose overcomes the purpose and effect to

disparage and injure those whom the State, by its marriage

laws, sought to protect in personhood and dignity'" (quoting

Windwr.

U.S. at

i33 S.O. at 2696; further

DeBoer, 772 F.3d at 408. Alabama's longstanding and continued embrace of traditional marriage is not due to be struck down on an animus rationale.

citation omitted)); lGtchen v. Her/Jert, 755 F.3d 1!93, 12!3 (1Oth Cir.20 14) (stating that "freedoms [such as marriage] support the dignity of each person, a factor emphasized by the Windsor Court"); Garde11 State Equal. v. Dow, 434

If Alabama's marriage laws do not violate the Equal Protection Clause or the fundamental right to marry under the Due Process Clause, and if they are not solely the product of animus toward homosexuals, then Supreme Court precedent provides only one other course to justifY the conclusion

N.J.Super. 163,206,82 A. 3d 336,361 (Ch.Div.2013) (relying

on Windsor's language that a" '[s]tate's decision to give this

class of persons the right to marry conferred upon them a

dignity and status of immense import' " (quoting Windsor,

U.S. at

133 S.Ct. at 2705)).

reached by the federal district court: The notion that marriage confers a certain dignity on its participants that the law cannot deprive individuals of simply because they desire to marry a person of the same sex. This line of reasoning comes from Windsor. In Windsor, the Court stated:

*40 Windsor's "equal dignity" rationale contains several problems. First, there is no "equal dignity" provision in the text of the United States Constitution. Instead, what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual

"Here [New York's] decision to give this class ofpersons constitutional infirmity exists. 38 Since the notion is not

the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and

textual, it is at least incumbent upon federal courts employing it to strike down state-marriage laws to describe in concrete

essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the

terms what "dignity" state-sanctioned marriage confers and therefore exactly what same-sex couples are deprived of by

recognition, dignity, and protection ofthe class in their own community.

traditional

marriage

laws.

10
J>

But

those

courts

merely

repeat

the generalized language of Windsor. Does a paper license

that publicly recognizes the relationship confer "dignity"

upon those who obtain it? Is it the fact that government

"... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being

recognition of same-sex relationships declares them to be "the same as" opposite-sex relationships that confers dignity? The United States Supreme Court has held that damage to reputation is not a cognizable interest protected by the Fourteenth Amendment. See Paul v. Davis. 424 U.S. 693.

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- {2015)

712, 96 S.Ct. !155, 47 L.Ed.2d 405 (1976) (holding that "the interest in reputation ... is neither 'liberty' nor 'property' guaranteed against state deprivation without due process of law"). So presumably this notion must be something more than reputation, but it is apparently too difficult for the judges relying on it to describe what it is. If the notion of "equal dignity" is a backdoor way of according fundamental-right status to the new definition of marriage, it utterly fails to cabin that right in any meaningful way.
Furthermore, emphasizing the "dignity" of the public recognition of a marriage places the focus on the adult relationship, again assuming the conclusion as a premise for the question. It constitutes an implicit adoption, without acknowledgment, of the new defmition of marriage based solely on a special relationship between two adults-as opposed to the traditional defmition of marriage, which aligns with the historically recognized purpose relating to procreation and the "rights and obligations between the couple and any children the union may produce." Maggie Gallagher, What Is Marriage for? The Public Pwposes of' Marriage Law. 62 La. L.Rev. 773, 781 (2002).
"Plaintiffs seek to bring the right to marry the person of their choosing regardless of gender within the protection of the well-recognized fundamental right to marry (see Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673 [ (1978) ]; Loving v. Virginia, 388 U.S. l, 87 S.Ct. 1817 [ (1967) ]; Skinner v. Oklahoma ex ref. 1-Vi/liamson, 316 U.S. 535, 541. 62 S.Ct. Ill 0, 86 L.Ed. !655 [ (1942)] ). However, wefind merit in defendants' assertion that this case is not simply about the right to marry the person of one's choice, but represents a significant expansion into new territory which is, in reality, a redefinition ofmarriage. The cornerstone cases acknowledging marriage as a jitndamental right are laced with language referring to the ancient recognized nature of that institution, specifically tying part of its critical importance to its role in procreation and, thus, to the union ofa woman and a man. ... "
*41 Samuels v. State Dep't Of Heait!i, 29 .A..D.3d 9, 14~ 15.811 N.Y.S.2d 136, 140--41 (N.Y.App.Div.2006) (footnote omitted), affd sub nom., Hemande: v. Robfes, 7 N. Y.3d 338, 855 N.E.2d l. 821 N.Y.S.2d 770 (2006).
Related to the fact that Windsor implicitly adopts the new definition of marriage is the fact that Windsor's "equal dignity" rationale necessarily makes a moral judgment about adult sexual relationships, even though the Supreme Court in Lawrence and lower courts addressing the marriage issue

have purported to disclaim ascribing any merit to moral or religious considerations. 40 By asserting that denying samesex couples the status ofmarriage deprives them of"a dignity and status of immense import,"-- U.S. at--, 133 S.Ct. at 2692, the Windsor Court made a moral judgment that a
married couple has more dignity than an unmarried couple. 41 Many people would agree with such an assessment, but it is not, strictly speaking, a legal judgment-at least according to several courts that have invalidated traditional marriage laws. 42 It seems at least disingenuous to find a constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions. See Charles P. Kindregan, Jr., Same-Sex Marriage: The Cultural Ww:s· and the Lessons of Legal Hi.\'fOIJ!, 38 Fam. L.Q. 427, 428 (2004) (detailing the intertwining history ofreligious and civil maniage in America and stating that "[t]he Western concept of marriage has been strongly influenced by JudeoChristian theology"). Moreover, because the Windsor Court's moral judgment is (one must assume) not based on religion, then it must be asked what standard is being used to judge that
marriage is better than nonmarrlage, that it cont~ins some
kind of higher dignity than other relationships? 43 Because the notion is not contained in the Constitution, one may
question whether it is nothing more than intuitions. 44 At any rate, it is not a legal basis for striking down a validly enacted law.
In the end, however, even ifone were to accept that marriage carries with it a "dignity" that compels its availability to all, would we not meet ourselves coming? Under that construct, such dignity no doubt would be something gained from the very nature of traditional marriage, the foundation for the family unit within which children may be born and have imparted to them by a mother and father the values needed for responsible citizenship and the furtherance of society.
"To remove from 'marriage' a definitional component of that institution (i.e., one woman, one man) which long predates the constitutions of this country and state (see e.g. Griswold v. Connecticut, 38 [ U.S. 479, 486[, 85 S.Ct. 1678, 14 l.Ed.2d 510] [1965] ) would, to a certain extent, extract some of the 'deep{]

Ex parte State ex rei. Alabama Policy Institute, ••• So.3d ---- (2015}

root[s}' that support its elevation to a fUndamental right."
*42 Samuels v. State Dep't ofHealth, supra.

Finally, an open question exists as to whether Windsor's

"equal dignity" notion works in the same direction toward

state laws concerning marriage as it did toward DOMA.

The Windsor Court stated that "[t]he history of DOMA's

enactment and its own text demonstrate that interference with

the equal dignity ofsame-sex marriages, a dignity conferred

by the States in the exercise of their sovereign power, was

more than an incidental effect ofthe federal statute." Windsor.

-~ U.S. at--. 133 S.Ct. at 2693. In Windsor, New York's

law allowed same-sex couples to obtain marriage licenses.

Thus, the "dignity" was conferred by the state's own choice,

a choice that was "without doubt a proper exercise of its

sovereign authority within our federal system, all in the way

that the Framers of the Constitution intended." U.S. at

133 S.Ct. at 2692. The problem with DOMA was that

it interfered with New York's "sovereign" choice. Alabama

"used its historic and essential authority to define the marital

relation" and made a different "sovereign" choice than New

York. Id If New York was free to make that choice, it would

seem inconsistent to say that Alabama is not free to make its

own choice, especially given that "[t]he recognition of civil

marriages is central to state domestic relations law applicable

to its residents and citizens."-- U.S. at

133 S.Ct. at

2691.

To all of this, proponents of same-sex marriage often retort that there is no reason both the traditional definition and the new defmition of marriage cannot coexist. On one level, that argument makes the erroneous assumption that the two definitions are not making different claims as to why marriage exists. On another level, it simply assumes that the definitions are not mutually exclusive. 45

Redefining marriage by definition implies that the traditional definition is inaccurate. In point offact, we are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other.

Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage. Some other states, like New York, have more recently chosen the new definition.

The United States Constitution does not require one defmition or the other because, as the Windsor Court noted, "[b]y history and tradition," and one should add. by the text of the Constitution, "the defmition and regulation of marriage ... has been treated as being within the authority and realm of the separate States."- U.S. at--, 133 S.Ct. at 2689~90. That fact does not change simply because the new defmition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary. 46
*43 As it has done for approximately two centuries, Alabama law allows for "marriage" only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.
IV. Order
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion.
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
PETITION GRANTED; WRIT ISSUED.

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

STIJART, BOLIN, PARKER, MURDOCK, WISE, and BRYAN, JJ., concur.
MAIN, J., concurs in part and concurs in the result.
SHAW, J., dissents.
MAIN, Justice (concurring in part and concurring in the result). I concur fully in the main opinion except for Part II.B. As to Part II.B., I concur in the result only. Consistent with my dissent from the Court's earlier decision to order answer and briefs in this matter, I continue to harbor concerns regarding some of the procedural aspects of this highly unusual case. Nevertheless, given the unique facts of this case and the intervention of Probate Judge John Enslen, I am persuaded that Judge Enslen has a sufficient interest in these proceedings to satisfY the criteria necessary for standing.
SHAW, Justice (dissenting). *43 I do not believe that this case can be filed in this Court at this time; as discussed below, I do not believe that this Court yet has jurisdiction.

1. This Court does not have jurisdiction in this case.
Normally, this Court hears appeals from lower court decisions. Here, public-interest groups have filed a petition directly with this Court in an attempt to invoke its "original" jurisdiction, which is rare. "Original jurisdiction" is "[a] court's power to hear and decide a matter before any other court can review the matter." Black's Law Dictionary 982 (lOth ed.2014).
This Court's original jurisdiction is described in the Constitution: "The supreme court shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction...." Ala. Const.l901, Art. VI,~ 140(b)(2) (emphasis added). Alabama Code 1975, § 12-27(2), states that this Court has authority to exercise "original jurisdiction" in determining and issuing writs of mandamus in matters where "no other court has jurisdiction." So, if another court has jurisdiction over this mandamus petition, the plain language of§ !2-2-7(2) provides that this Court cam10t exercise original jurisdiction. Circuit courts are courts of general jurisdiction whose judgments may be appealed to this Court and that, under§ !2-2-7(2), cannot be bypassed. This Court is applying a different rule in this case.

It is unfortunate that the federal judiciary has refused to stay the order striking down Alabama's marriage-protection laws until the Supreme Court ofthe United States can conclusively rule on the issue within the next few months. The federal district court's order did nothing less than change the very definition of the institution of marriage in Alabama. Such a drastic change in Alabama law warranted the granting of a stay. The lack of a stay has resulted in much unnecessary confusion and costly litigation. Because I do not believe the case before this Court is properly filed, I cannot, at this time, express my opinion as to whether the federal court's decision was correct.

This Court routinely hears petitions challenging a lower court's decision in a pending case; this does not constitute hearing a matter "before another court" gets that opportunity and is not an exercise of original jurisdiction. Alabama Code 1975, § 12--2-7(3), states that this Court has authority to issue "remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction." There is no indication in the plain language of this Code section that the reference to "original writs" encompasses "original jurisdiction"; rather, the language refers to writs that review interlocutory decisions of the lower courts:

*44 Against this backdrop, I write to express my concem that, in an attempt to reduce confusion and to restore order, the main opinion has deviated from certain principles oflaw that undermine its rationale for assuming jurisdiction of, and extending relief to, the petitioners here. This deviation from the law, I fear, will have unforeseen consequences in future cases. For that reason, I cannot join the main opinion. My concerns are as follows:

"Other procedures by which decisions of a supervised court are brought to a supervising court for review are provided by the writs of certiorari, mandamus, and prohibition. Known variously as 'prerogative writs,' 'peremptory writs,' 'extraordinary writs,' 'supervisory writs,' and 'original writs,' these writs are not, when appropriately employed,

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

alternatives to appeal, but lie under circumstances in which an appeal does not lie. One or another of these writs can, under prescribed circumstances, be used to invoke supervisory review of interlocutory decisions that could not be appealed."
*45 Jerome A. Hoffman, Alabama Appellate Courts: Jurisdiction in Civil Cases, 46 Ala. L.Rev. 843, 852 (Spring 1995).
Advising a probatejudge how to issue government marriage licenses is not "superintendence and control" of an inferior court 's performance of a judicial function. Instead, it is instructing a State official acting in a nonjudicial capacity on how to perform a ministerial act. Specifically, probate courts are courts of limited jurisdiction. 47 The jurisdiction of those courts is specified in A!a.Codc 1975, § !2-13- l, which lists the types of cases and controversies the courts may hear. Issuing marriage licenses is not a function of the court or ofits judicial power-the court has nojudicial power to issue a marriage license. 48 Instead, it is something the legislature has instructed that probate judges "may" do. 49 Ala.Cocle J975, § 30-1-9; Ashley v. State, 109 Ala. 48, 49, 19 So. 9 I 7, 918 (1896) ("The issuance of a marriage license by a judge of probate is a ministerial and not a judicial act."). There is no exercise of a probate court's jurisdiction when a probate judge issues a marriage license because the source of the probate judge's authority to issue such a license does not stem from the jurisdiction of the court. By acting in this case, this Court is not correcting a legal mistake by a judicial officer; it is not supervising or correcting a court. Section 140(b), Ala. Const.l901, and§ 12--2-7(3), Ala.Code 1975, are simply inapplicable in this case.

notes that Alabama Textile involved a review of a ''judicial action" of "an inferior tribunal vested with judicial or quasi judicial power," and is thus also so limited Id In other words, Alabama Textile does not provide this Court with original jurisdiction to supervise the nonjudicial functions ofprobate judges. See also Russo v. Alabama Dep't o(Corr.. 149 So.3d 1079, 1081 (Ala.2014) ("This Comt does not have original jurisdiction to issue writs against State officers and employees other than to the lower courts."), and Ex parte Anderson, 112 So.3d 31, 35 (Ala.2012) (on application for rehearing) (Murdock, J., concurring specially) ("In her application for rehearing, Anderson ... [argues] that her petition to this Court did not seek a writ directed to the circuit court requiring it to enforce its original orders but, instead, was a petition asking this Court to issue a writ directly to the State comptroller. I am not persuaded that such a petition is within the original jurisdiction of this Court...."). 51 This Court is applying a different rule in this case.
2. The public-interest groups cannot sue in the State's name.
*46 The public-interest groups here are attempting to pursue this case "in tl1e name of the State." Citizens can sometimes sue in the name of the State to compel a public officer to perfonn a legal duty in which the public has an interest. But they cannot do this when "the matter concerns the sovereign rights ofthe State...." Morrison v. Morris. 273 Ala. 390, 392, 141 So.2d 169, 170 (1962). 52 I must respectfully disagree with the conclusion that this case does not concern the sovereign rights of this State. The relief requested and the reliefgranted touch directly on Alabama's sovereign authority to define the institution of marriage. This Court is applying a different rule in this case.

Furthermore, the decision in Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303 (1942), provides no exception. In that case, this Court purported to hear the petition under what is now § 12--2-7(3) and not § t2-27(2). A subsequent decision, State r. Albritton, 251 Ata. 422. 424, 37 So.2d 640, 642 (1948), notes that § 12--2-7(3) 50 allows the Court to supervise only the exercise of judicial power: "It is clear from [§ !2-2-7(3) ] that the justices of the supreme court are limited in the issuance of these extraordinary writs as necessary to give general superintendence and control of inferior jurisdictions. That is, to supervise persons and bodies clothed with judicial power in the exercise thereof" (Emphasis added.) It further

3. The public-interest groups do not have standing.

Not just anyone can file a lawsuit; the person or entity

filing the action must have "standing," meaning the person

or entity must have a sufficient stake in the controversy

to be allowed to file the case. 53 The legal test this Court

would normally use to determine whether "standing" exists

is found in

1'

ol

504 U.S. 555.

l! 2 S.Ct. 2130, t !9 L.Ed.2d 35 l (1992), which this Court

has adopted. 54 In Lujan, certain environmental groups

alleged that the Secretary of the Interior was not correctly

applying the law, and they wanted the courts to order

Ex parte State ex rei. Alabama Policy Institute, ••• So.3d -·-· (2015)

the Secretary to apply the law in a different way. The Supreme Court of the United States held, among other things, that, in order for those interest groups to sue, they must have been "injured": "the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or "hypothetical." ' " 504 U.S. at 560, 112 S. Ct. 2130 (footnote and citations omitted). The injury suffered must impact the plaintiff "in a personal and individual way." 504 U.S. at 560 n. 1, 112 S.Ct. 2130. Using this logic, this Court has held in the following cases that groups of interested people claiming that they have been broadly or generally harmed by allegedly unconstitutional or unauthorized governmental acts did not show the required injury: Ex parte King, 50 So.3d 1056 (Aia.2010); Town of Cedar Blzdfv. Citizens Caring.for Children, 904 So.2d 1253 (Ala.2004); and Kid:, Care, Inc. v. Alabama Dep'r of'Human

another court's records. Green Ti·ee-AL LLC v. Vfhite, 55 So.3d l! 86, 1193 (Ala.20 10). We are in a position similar to that of a circuit court hearing an original petition filed in that court. Those courts, however, have the benefit of Ala.Code 1975, § 6-6--640(a), which requires mandamus
petitions to be "verified by affidavit." 55 Thus, the publicinterest groups have provided us with no competent evidence upon which we can determine whether they have proven their case. E<: parte Ocwen Fed Bank, FSB, 872 So.2d 810, 814 n. 6 (Ala.2003) ("The petitioner has the responsibility of supplying the Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition."). Normally, this Court would not grant relief in such a situation. Ex parte A!lianz Life Ins. Co.
ol North America, 25 So.3d 411 (Ala.2008). This Court is
applying a different rule in this case.

Res., 843 So.2d 164 (Ala.2002). The public-interest groups'

alleged injuries in this case are not personal or individual in nature. Their injuries are no different than the injuries alleged in the above cases, where standing was rejected by this Court. Their disagreement with the probate judges, alone, does not provide sufficient standing. Government officials cannot be sued simply because a person thinks the officials are doing something wrong; the thing they are doing must result in "concrete and particularized" and "actual or imminent" harm to the person seeking judicial relief.

5. This Court is addressing issues not presented.
The public-interest groups have not asked this Court to rule on the constitutionality of Alabama's marriage-protection laws. Van Voorst v. Federal Express Cmp., 16 So.3d 86, 9293 (Ala.2008) (noting that issues not briefed are waived). They have not presented an argument as to that issue. See Rule 2 !(a)(l )(C), Ala. R.App. P. (providing that a mandamus petition shall contain a statement of the issues presented and the relief sought). The briefs of the respondents appear to

This Court is applying a different rule in this case. Here; the Court is recognizing an exception to Lujan when a party simply claims that it is acting on behalf of a public interest. If such recitation in the complaint is all that is required to

operate on the assumption that the constitutionality of the marriage-protection laws will not be addressed. Indeed, our order for answers and briefs may have misled them to believe that no argument as to this issue was required:

avoid running afoul ofLujan, then Lujan is meaningless. The implications of such a holding are troublesome.

"The respondents are ordered to file answers and, if they choose to do

so, briefs, addressing issues raised by

4. This mandamus petition is procedurally deficient.
*47 "When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents." Ex parte Guarantv Pest Control, Inc.. 21 So.3d 1222. 1228 (Ala.2009). When a party seeks mandamus review of a lower

the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court's subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition."

court decision, it must attach to the petition "[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 2l(a)(l)(E), Ala. R.App. P. There is no record below in this case because there is no lower court proceeding. Although the petition includes various documents issued by the federal district court, we cannot take judicial notice of

(Emphasis added.) The petition does not demonstrate "a clear legal right" to relief as to this issue because it does not even argue it. This Court would normally not perform a party's legal research. Dykes v. Lane Trucking, Inc.. 652 So.2d 248, 251 (Ala. !994) ("[I]t is not the function of this Court to do a party's legal research...."). This Court is applying a different

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

rule in this case, and, for all practical purposes, is issuing an advisory opinion on this issue to two public-interest groups. Again, this is something that this Court has held it cannot do. Stamps v. Jefferson Cnty. Bd. ofEduc., 642 So.2d 941, 944 (Ala.1994).
*48 For the foregoing reasons, I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and ofgreat public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an

issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into uncharted waters and potentially unsettling established principles of law. Therefore, I must respectfully dissent.
All Citations
--- So.3d ----, 2015 WL 892752

Footnotes

1

The petition notes that API

"is a 501(c)(3) non-partisan, non-profit research and education organization with thousands of constituents throughout Alabama, dedicated to influencing public policy in the interest of the preservation of free markets, rule of law, limited government, and strong families, which are indispensable to a prosperous society. API achieves these objectives through in-depth research and policy analysis communicated through published writings and studies which are circulated and cited throughout the state and nation. Over the years, API has published a number of studies showing the great benefits to families of marriage between one man and one woman and the detriments associated with divorce, cohabitation, and same-sex unions, particularly when children are involved. API has consistently cautioned against the gradual shift toward sanctioning same-sex marriage on this basis. API was a leading proponent of both the ... Act, passed in 1998, and the ... Amendment, which was approved by 81% of Alabama voters in 2006."
The petition notes that ACAP

"is a non-profit 501 (c)(4) organization with thousands of constituents throughout Alabama, which

exists to promote pro-life, pro-family and pro-moral issues in [Alabama]. In addition to lobbying

the Alabama Legislature on behalf of churches and individuals who desire a family-friendly

environment in Alabama, [ACAP] provides a communication link between Alabama legislators

and their constituents. After passage ofthe ... Act, [ACAP] vigorously promoted passage of the ...

Amendment to both legislators and citizens, making [ACAP] instrumental in the resulting 81%

vote approving the ... Amendment in 2006."

2

Realignment of the parties in civil actions in Alabama is not uncommon. See, e.g., Richards v. lzzi, 819 So.2d 25,

28 (Aia.2001) ( "Jefferson County, although originally a defendant, was realigned as a plaintiff."). Realignment is not uncommon, even when the jurisdiction of the court is called into question. Indeed, when cases are removed to federal

court based on diversity jurisdiction, federal courts allow post-removal realignment of parties in order to create diversity.

See Lott v. Scottsdale Ins. Co., 811 F.Supp.2d '1220, 1223 (E.D.Va.2011) (noting that "[t]he first question presented-

whether post-removal party realignment to create diversity is permissible-is easily answered in the affirmative based on

settled authority in this circuit and elsewhere" and providing footnote citing multiple authorities). In this regard, the United

States Court of Appeals for the Eleventh Circuit has observed:

"[F]ederal courts are required to realign the parties in an action to reflect their interests in the litigation. The parties

themselves cannot confer diversity jurisdiction upon the federal courts by their own designation of plaintiffs and

defendants. City of Indianapolis v. Chase Nat'! Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941 ). This Court

concludes that the converse of this principle-that parties cannot avoid diversity by their designation of the parties

-is also true. Rather it is the 'duty ... of the lower federal courts[] to look beyond the pleadings and arrange the

parties according to their sides in the dispute,' No;thbrook Nat'! Ins. Co. v. Brewer. 493 U.S. 6, 16 n. 5, 110 S.Ct.

! j

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

3 4
5 6 7

297, 302 n. 5, 107 L.Ed.2d 223 (1989) (citations and quotations omitted), as determined by 'the principal purpose of the suit' and 'the primary and controlling matter in dispute,' City of Indianapolis, 314 U.S. at 69, 62 S.Ct. 15." City of Vestavia i-Ii/Is v. General Fid. Ins. Co., 676 F.3d 1310, 1313-14 (11th Cir.2012) (emphasis omitted}. As the Eleventh Circuit explained, it is a court's duty to align the parties on their proper sides without regard to the effect of the realignment on jurisdiction. By doing so, we merely " ' "look beyond the [nomenclature of the] pleadings and arrange the parties according to their sides in the dispute." · " Northbrook Nat'/ Ins. Co. v. Brewer, 493 U.S. 6, 16 n. 5, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989) (quoting other cases).
"For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world."
DeBoer v. Snyder, 772 F.3d 388, 395-96 (6th Cir.2014). As Blackstone stated: "[TJhe most universal relation in nature" is that between a parent and child, and that relationship proceeds from the first natural relation, that between husband and wife." 1 William Blackstone, Commentaries *446. The "main end and design of marriage" is "to ascertain and fix upon some certain person, to whom the care, protection, the maintenance, and the education of the children should belong." /d. at *455. And those duties are duties of natural law. /d. at *447-50.
The history of the. Searcy litigation appears to be yet another manifestation of the confusion that has been generated by this matter. According to the complaint in Searcy I, the plaintiffs, C.D.S. and K.M., a same-sex couple, had been married in California, and K.S. was K.M.'s biological son. In December 2011, C.D.S. filed a petition in the Mobile Probate Court seeking to adopt K.S. under a provision of Alabama's adoption code that allows a person to adopt a "spouse's child." § 26-iOA-27, Ala.Code 1975.
In April 2012, the Mobile Probate Court, acting through Judge Don Davis, entered a final judgment denying C.D.S.'s petition for adoption as a matter of law based on the Amendment and the Act. C.D.S. appealed, and the Court of Civil Appeals affirmed the April 2012 judgment. See fn re K.R.S., 109 So.3d 176 (Aia.Civ.App.2012). C.D.S. did not seek further appellate relief.
In May 2014, C.D.S. and K.M. filed their complaint in Searcy I; the defendants included .Attorney General Strange and Mobile Probate Judge Davis, among others. The complaint sought an order requiring, among other things, that the defendants grant- the adoption of K.S. by C.D.S. The claims against Judge Davis were subsequently dismissed with prejudice. It is unclear to this Court whether the claims against Judge Davis were dismissed because he would function as a court of law, rather than as an executive minister of the law, in relation to any petition within the state judicial system seeking an adoption. (Alternatively, it is unclear whether the claims against Judge Davis were dismissed because the final judgment he entered in April 2012, based as it was on a matter of law, represented a res judicata bar to the relief being sought in the federal court in Searcy/.) By the same token, it is unclear on what basis a "case or controversy" existed between the plaintiffs in Searcy I and the Attorney General given the Attorney General's lack of authority to affect the actions of the court of law responsible for adjudicating adoption cases. See also note 16, infra. The opinion in Alabama Textile did note that the parties agreed that it was necessary to complete relief that the Court act, but as discussed below, that agreement was considered by the Court only in making the discretionary determination delegated by law to the Court with respect to whether action by it was necessary to provide the relief needed. Ultimately, and most importantly as to this point, the Court was quite clear in its conclusion that such consent is neither necessary nor sufficient to such a determination. In Ex parte Jim Walter Resources, tnc., 91 So.3d 50 (Aia.2012), the Court considered the question whether it had original jurisdiction over an original petition filed in this Court seeking a writ of mandamus to direct a probate judge to record a mortgage document. The Tuscaloosa County Probate Court had refused to record the mortgage documents filed by Jim Walter Resources ("JWR") unless a recordation tax was first paid. See§ 40-22-2, Ala.Code 1975. We explained that "imposing the recordation tax on a mortgage recorded in a county is part of the administrative duties of the probate judge of the county and, as such, is a ministerial function," and that "[aJ writ of mandamus will lie to compel a court to perform ministerial duties." Jim Walter, 91 So.3d at 53. Further, we explained our ability to exercise our original jurisdiction over the petition filed with us by explaining that a circuit court's appellate jurisdiction over probate matters is limited under § 12-22-21, A!a.Code 1975, and did not include the taxing issue involved in that case. /d. Rarely, if ever, could a party attempt to bring a viable public-interest action in the name of the state for the purpose of challenging the state's laws, because the state normally would have no interest in such an action. Thus, public-interest standing generally is limited to cases in which a relator seeks on behalf of the state to secure the enforcement of the

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

state's laws. See discussion of cases below. Where a party seeks to halt enforcement of a duty otherwise owed to the

public, as is common in an action seeking to invalidate a state statute, he or she generally must be able to show a

private interest to be vindicated. See, e.g., Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d at 1256 (action

seeking to invalidate a state statute) (noting that "[i]n Jones v. Black, 48 Ala. 540 (1872), this Court first articulated a test

for determining whether a party has the necessary standing," and explaining that" '[a] party who seeks to have an act

of the legislature declared unconstitutional, must ... show that he is, or will be injured by it'" (quoting Jones, 48 Ala. at

543)); Alabama Alcohoiic Beverage Control Board v. Henri-Duval Winety, L.L.C., 890-So.2d at 74 (stating that "[a] party

establishes standing to bring a challenge" to a state statute when it demonstrates the Lujan v. Defenders of Wildlife, 504

U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), elements). Compare, e.g., State ex rei. Highsmith v. Brown Serv.

Funeral Co., 236 Ala. 249, 251, 182 So. 18, 19 (1938) (allowing the suit to go forward on other grounds, but agreeing

with the defendants' general assertion that "relator shows no interest in the controversy, and that one without interest

cannot attack an act of the Legislature because it is unconstitutional, which is the attack here made").

8

See also State ex rei. Bronster v. Yoshina, 84 Hawai'i 179, 185, 932 P.2d 316, 322 (1997) ("[S]tanding barriers should

not serve to bar cases of public interest under our jurisdiction. More specifically, 'federal justiciability standards are

inapplicable in state court declaratory judgment actions involving matters ofgreat public importance.' " (citation omitted));

State ex rei. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo.1992) ("The threshold requirement for

standing is extremely low where mandamus is brought to enforce a nondiscretionary duty allegedly required of a public

official.... Even a private citizen was held to have 'the sesame which unlocks the gates of mandatory authority whenever

an officer whose functions are purely ministerial refuses to perform his office.' " (citation omitted)); and State ex rei. Sego

v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974) ("[l]t has been clearly and firmly established that even though

a private party may not have standing to invoke the power of this Court to resolve constitutional questions and enforce

constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest

in cases presenting issues of great public importance." (emphasis added}).

9

Though it may appear that the duty involved in Rodgers was one owed to the government, i.e., to the circuit clerk, the

purpose of requiring the sheriff to file the reports was because the public had an interest in knowing who had been

committed to and discharged from the prisons.

10 The fact that two of the relators here are public-interest, nonprofit corporate entities rather than natural persons does not

disqualify them as plaintiffs. See, e.g., Marone, 967 N.Y.S.2d at 589, 39 Misc.3d at 1041 ("The public interest standing

of a citizen has been extended to corporations as well as other organizations."); Save the Plastic Bag Coalition v. City

of Manhattan Beach, 52 Cal.4th 155, 168, 127 Cai.Rptr.3d 710, 720, 254 P.3d 1005, 1013 (2011) ("[C]orporate entities

should be as free as natural persons to litigate in the public interest."); Stat? ex ref. Ohio Motorist§ Ass'n v. Masten, 8

Ohio App.3d 123, 129,456 N.E.2d 567, 573 n. 4 (1982) ("We are persuaded that an Ohio corporation may have as great

an interest as a natural person in seeking the just enforcement of state laws, and may be considered to be a citizen of

the state of Ohio entitled to institute an action in mandamus."); cf. Jackson Sec. & fnv. Co. v. State, 241 Ala. 288, 292, 2

So.2d 760, 764 (1941) ("The general rule is recognized everywhere that a corporation is a citizen, resident or inhabitant

of the state under whose laws it was created."); and§ "lOA-1-2.11, Ala.Code 1975 ("[W]hether or not expressly stated in

its governing documents, a domestic entity has the same powers as an individual to take action necessary or convenient

to carry out its business and affairs.").

11 In a different sense of the public's "interest," the intensity of the public's interest in preserving the

institution of marriage as it has always been understood, a union between one man and one woman,

is evidenced by the ratification of the Amendment in 2006 by 81% of Alabama voters. Certification of

Constitutional Amendment Election Results (June 6, 2006), http://www.alabamavotes.gov/downloads/election/2006/

primary/ProposedAmendments-Officia1ResultsCertification-06-28-2006.pdf (last visited March 2, 2015; a copy of the

Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court).
12 Other matters that arguably fall into the category of a state's sovereign rights include the power of eminent domain, see

West River Bridge Co. v. Dix, 47 U.S. 507, 533, 6 How. 507, 12 L.Ed. 535 (1848) (recognizing that "the power [of eminent

domain] ... remains with the States to the full extent in which it inheres in every sovereign government, to be exercised

by them in that degree that shall be ... deemed commensurate with public necessity"), and the power to enforce criminal

laws, see United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (observing that both the

federal and state governments had "the power, inherent in any sovereign, independently to determine what shall be an

offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that

of the other'") (quoting United States v. Lanza, 260 U.S. 377, 382,43 S.Ct. 141, 67 LEd. 314 (1922)).

Ex parte State ex rei. Alabama Policy Institute,··· So.3d ---- (2015)

13 14

Even Lujan itself, at least on its facts, is not inconsistent with the understanding that a private right is needed when one seeks to assert a claim based on a duty owed to the government as such. Clearly, Lujan is not easily assessed, and some have questioned the consistency of application of the principles expressed therein, even in federal cases. See, e.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 641-42, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Souter, J., dissenting) (stating that " 'the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,' leaving it impossible 'to make application of the constitutional standing requirement a mechanical exercise.'" (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), abrogated on other grounds by Lexmark tnt'/, Inc. v. Static Control Components, Inc.,- U.S.--, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014))); Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L.Rev. 301, 302-04 (2002) (observing that Lujan's "easily-stated formula hides much of the complexity of modern case or controversy analysis). (Of course, a state is free to reject or modify Lujan as it may see fit. See, e.g., ASARCO, Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) ("[T]he state judiciary here chose a different path, as was their right, and took no account of federal standing rules in letting the case go to final judgment in the Arizona courts.").) One possible explanation for the seemingly disparate results achieved is that some cases, including Lujan and the cases upon which it relies, may be understood as involving attempts by private litigants to state a cause of action by relying upon duties actually owed to a governmental unit, commonly by another governmental unit, whereas others involve what may be understood as seeking to enforce a duty more directly owed to the public. Compare Lujan; Fairchild v. Hughes, 258 U.S. ·126, 42 S.Ct. 274, 66 L.Ed. 499 (1922); Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 LEd. 493 (1937}; Schlesinger v. Rese1vists Comm. to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (abrogated on other grounds by Lexmark lnt'f, Inc. v. Static Control Components, Inc.,- U.S.--, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014)); Va/fey Forge Christian Col!. v. Americans United for Separation of Church 8, State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); and Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d
135 (1990) (duty sued upon was owed to a person other than the plaintiff), with Federal Election Comm'n v. Akins, 524
U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs. (TOG), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(seeking to require compliance with anti-pollution laws); and Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (recognizing standing in several environmental groups seeking to enforce a duty imposed on the EPA to regulate certain carbon-dioxide emissions). See generally Union Pac. R.R. v. Hall, 91 U.S. 343, 23 L.Ed. 428 (1875) (holding that a member of the public may bring a mandamus petition to
enforce a public duty and need not possess a particularized interest in the duty).
Mooring v. State, 207 Ala. 34, 91 So. 869 (1921), and Tarver v. Commissioners' Cowt, 17 Ala. 527, 531 (1850), are
among the examples of cases implicating the State's sovereign right of taxation in which a private party was permitted to bring a mandamus petition to force a government entity to collect a tax precisely because the party had a private interest in the tax collected. At issue in Tarver was a statute that provided:
"That it shall be lawful for the commissioners' court of roads and revenue of the county of Tallapoosa to impose such tax in addition to the tax levied for county purposes, as may be necessary to pay any amount of money that the courthouse commissioners of said county may be liable to pay for building the court-house and jail.' Under the authority of these several acts, [Tarver] with the other commissioners contracted with Cameron & Mitchell for the erection of the county buildings, agreeing to pay them $18,000. The buildings were completed and were received and used by the county. The [Commissioners Court of Tallapoosa County] paid from the proceeds of the sale of the lots the amount agreed on, less the sum of thirty-five hundred dollars. This amount they declined paying on the ground that the work was not completed according to contract. A suit was instituted against [Tarver and the other commissioners] and a judgment finally rendered for twenty-five hundred dollars. The commissioners' court has levied a tax and paid a part of this judgment, but refuses to pay any more or to levy a tax for that purpose.''
17 Ala. at 531. All the commissioners besides Tarver at the time the contract was executed died or left the State, and consequently execution of the judgment was made solely against Tarver. Tarver brought a mandamus petition under the authority of the statute to force the current Commissioners of the Court of Tallapoosa County to levy a tax to pay the judgment against him. The circuit court dismissed the petition. On appeal, this Court granted the petition, stating:

"We think it very clear that it is the duty of the commissioners' court under these facts to levy and collect a tax sufficient to pay the amount of the judgment still unpaid, as well as such amount as may be justly due to the petitioner, and that he has the legal right to demand of them the performance of this duty."

17 Ala. at 531.

j;

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

15 16 17

Nor would it be of any import for purposes of this proceeding that it was initiated only by the associationa! relators and not also Judge Enslen. Judge Enslen is a proper party before this Court and has been properly realigned as a relator on behalf of petitioner State of Alabama. Under the circumstances presented, we are clear to the conclusion that, to the extent our precedents applicable to actions filed in trial courts require their dismissal if filed by a party without standing, those precedents have no application here. Our supervisory authority is sufficient to enable us to effect that realignment and accept jurisdiction over the resulting adversarial proceeding in furtherance of our responsibility to restore and maintain order within our judicial system, particularly where as here the State was originally named petitioner and continues as the petitioner and the realignment of Judge Enslen would, at most, effect merely a substitution of the relating person to speak on its behalf.
That is, a lower federal court, which has no appellate authority over any state court judge acting in a judicial capacity, has no authority or jurisdiction over a state court's rulings as to cases before that state court judge acting in his or her judicial capacity, including as to questions of law. That would be the case, for example, as to a probate judge handling an adoption case or an estate-administration case, as opposed to acting in a ministerial capacity to record a deed or to issue a license. The proper avenue, indeed the only avenue, for appellate review of a final trial court judgment in such a case is "upward" through the coordinate state court system, of which that trial court is a part, followed thereafter by a petition for a writ of certiorari to the United States Supreme Court if necessary. By way of example, the plaintiff in Searcy I filed at least one previous petition seeking approval of the adoption of the child at issue. As has been noted, in April 2012, Mobile Probate Judge Davis entered a final trial court order denying that petition on the ground that the requested adoption was not permitted under the Amendment and the Act. C.D.S., as was the proper course, sought relief within the appellate courts of this state. See tn re K.R.S., 109 So.3d i76 (Aia.Civ.App.2012).
" '[R]egulation of domestic relations' is 'an area that has long been regarded as a virtually exclusive province of the
States.' " United States v. Windsor, - U.S. at--, 133 S.Ct. at 269i (quoting Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553,42 l.Ed.2d 532 (1975)). The Windsor Court also observed that" '[e]ach state as a sovereign has a rightful and
legitimate concern in the marital status of persons domiciled within its borders.'"- U.S. a t - - , 133 S.Ct. at 2691
(quoting Williams v. North Carolina, 317 U.S. 287,298, 63 S.Ct. 207,87 L.Ed. 279 (1942)).

We note that Windsor's acknowledgment of the states' sovereign authority over marriage refers to the powers of the states vis-a-vis the federal government. Our discussion in Part 11.8 of this opinion notes that marriage is a duty owed to the public rather than what on-relation cases such as Kendrick have described as "sovereign rights of the state," which are duties "owed to the government as such." The fact that, as between the federal government and the states, the Jaw of marriage falls within the sovereign powers of the states does not affect whether marriage licensing is a duty owed to the public rather than one owed to the government as such.
18 Laws that include the concept of marriage as the union of one man and one woman, however, predate the inception
of Alabama as a state in 1819. In 1805,-when Alabama was still a part of the Mississippi Territory-the legislature of the Mississippi Territory passed an act imbuing orphans' courts with the power to grant and issue marriage licenses. H. Toulmin, Digest ofthe Laws ofAlabama, tit. 42, ch. 1, § 4 (1823). That act remained in force after the creation of Alabama as a state in 1819 and contained language referring to persons joined together as "man and wife." See H. Toulmin, Digest ofthe Laws of Alabama, tit. 42, ch. 1, § 6 (1823). Furthermore, in 1805, the plain, ordinary, and commonly understood meaning of the word "marriage" was "the act of joining: man and woman." Webster, A Compendious Dictionary of the English Language, 185 (1806). Following Alabama's becoming a state in 1819, Alabama law continued to include the concept of marriage as the union of one man and one woman. See Hunterv. Whitworth, 9 Ala. 965,968 (1846) ("Marriage

is considered by all civilized nations as the source of legitimacy; the qualities of husband and wife must be possessed by the parents in order to make the offspring legitimate, where the municipal law does not otherwise provide." (emphasis added)). In 1850, the Alabama Legislature conferred the power to issue marriage licenses to the newly created probate courts. 1850 Ala. Laws 26. This power was officially codified in 1852. See Ala.Code 1852, § 1949.
19 Few courts that have ordered the issuance of marriage licenses to same-sex couples appear to have contemplated
this issue. The alternative, however, appears to allow the judiciary to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken, all contrary to well established state and federal principles of judicial review. As we observed in King v. Campbell, 988 So.2d 969, 981-83 (Aia.2007):

"This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa, 25'1 Ala. 209, 2! 7,

36 So.2d 487, 493 (1948):

" '... The act "ought not to be held wholly void unless the invalid porlion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)
legislature had perceived the invalidity of the patt so held to be unconstitutional." A. Bertofla & Sons v. State, 247 Ala. 269, 271, 24 So.2d 23, 25 [ (1945) ]; Union Bank & Trust Co. v. 8/an, 229 Ala. 180, 155 So. 612 [ (1934) ]; 6 R.C.L. 125, § 123.'
"(Emphasis added.)
" '... It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid patts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent.'
"[Springer v. State ex ref. Williams, 229 Ala. 339,] 342-43, 157 So. [219,}222 (1934) (emphasis added). See also City of Birmingham v. Smith, 507 So.2d 1312, 1317 (A!a.1987), describing the test as whether the legislature would have enacted the statute without the void provision."
(Final Emphasis added.) See also Robert L. Stern, Separability and Separability Clauses in the Supreme Court. 51 Harv. L.Rev. 76, 76 (1937), explaining that
"the United States Supreme Court, the state courts, and secondary authorities all appear to agree that the test for whether the invalidity of part of a law or of some of its applications will not affect the remainder is '(1) if the valid provisions or applications are capable of being given legal effect standing alone, and (2) if the legislature would have intended them to stand with the invalid provisions stricken out.' "
20 For that matter, it has existed in history since ancient times. See, e.g., Charles P. Kindregan, Jr., Same-Sex Marriage:
The Cultural Wars and the Lessons ofLegal History, 38 Fam. L.Q. 427, 428 (2004) (noting that "[t]he Code of Hammurabi, 1780 B.C., provided that 'if a man take a wife and does not arrange with her the proper contracts, that woman is not his legal wife' ").
2'1 The issue in Lofton was whether a Florida statute prohibiting adoption by practicing homosexuals violated the equal-
protection and due-process rights of homosexual persons desiring to adopt. The United States Court of Appeals for the Eleventh Circuit determined that no fundamental right to private sexual intimacy existed and, thus, that the Florida statute was subject to rational-basis analysis. It was significant to the Eleventh Circuit in Lofton that "the involved actors are not only consenting adults, but minors as well." 358 F.3d at 817. Such is the case with the underlying action before the Mobile Probate Court.
22 Compare DeBoer, 772 F.3d at 400 (observing that "[o]nly the Supreme Court may overrule its own precedents, and we
remain bound even by its summary decisions 'until such time as the Court informs [us] that [we] are not'" and that "[t]he Court has yet to inform us that we are not" to follow Baker), with Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir.2014) (stating that "Romer v. Evans, 517 U.S. 620, 634-36, 116 S.Ct 1620, 134 L.Ed.2d 855 (1996); Lawrence v. Texas, 539 U.S. 558, 577-79, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative").
23 The Searcy I plaintiffs might respond that defining marriage inherently as available only to members of the opposite sex
is also circular, but that argument ignores the fact that millennia of practice stand behind the traditional definition. Such a mistake is similar to an employee's complaining that his boss cannot tell him what to do because no one informed him that being an employee meant that he would have to do what someone else told him to do. To state that being an employee means that a person works for someone else is not circular reasoning: it is just describing the nature of an "employee." Likewise, as will be explained more fully in the text below, to state that being married involves two people of the opposite sex joining in a special relationship is not circular: it merely describes the nature of being "married." This not-so-subtle redefinition of "marriage" is an example of what Jaw professor Steven D. Smith calls "smuggling," which "implies that an argument is tacitly importing something that is left hidden or unacknowledged-some undisclosed assumption or premise." Steven D. Smith, The Disenchantment of Secular Discourse 35 (2010). Smith goes on to explain that such a tactic is "illicit" when making the undisclosed premise
"explicit would be controversial: you would have to defend the premise, and you don't want to do that. Or your premise might be illicit because you yourself do not believe it: you like your conclusion, maybe, but you don't actually believe what would be necessary to support this particular argument for that conclusion. Perhaps, if you were to make your unstated premise explicit, you would be convicted of inconsistency, because you have contradicted that premise

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)
on other occasions. Or your premise might be illicit because the conventions of the discourse you are engaging in purport to exclude it."
!d. at 36.
In this instance, the frrst two reasons Smith offers for "smuggling" are the most likely to apply. Proponents of the new definition of marriage do not want to have to defend the premise behind their change of definition because doing so would necessarily require the introduction of legislation to effect the change rather than a court order. Also, as is explained in note 31 and the accompanying text, the new definition of marriage put forward by proponents of samesex marriage carries implications that proponents themselves either do not believe or do not want explicitly revealed at this time because they know that a large majority of the populace is not ready to accept those implications.
25 See also Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 365-66, 798 N.E.2d 941, 984 (2003) (Cordy, J., dissenting):
"This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man and a woman is merely 'conclusory' ..., rather than the basis on which the 'right' to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry.'"
The Bostic Court, among others, asserted that "G!ucksberg 's analysis applies only when courts consider whether to recognize new fundamental rights" and that inCluding same-sex couples in the right to marry does not create a new right, and so, conveniently, it did not matter that there is no historical tradition of same-sex marriage. 760 F.3d at 376. The Bostic Court noted that the Supreme Court did not contend that it was creating a new fundamental right to interracial marriage when it struck down Virginia's miscegenation statute as unconstitutional in Loving. /d. at 376-77. This point ignores the fact that the Loving Court did not need to create a new fundamental right in order to subject Virginia's statute to strict-scrutiny analysis because the statute discriminated on the basis of race, which is an express suspect classification in the Fourteenth Amendment.
27 In contrast to the assertion that marriage is "wholly secular," plaintiffs in some actions seeking to nullify state laws limiting
marriage to its traditional understanding have contended that those Jaws violate the Establishment Clause of the First Amendment to the United States Constitution. See, e.g., Love v. Beshear, 989 F.Supp.2d 536, 541 (W.D.Ky.2014); Brenner v. Scott, 999 F.Supp.2d 1278, 1284 (N.D.Fia.2014); Love v. Pence, (No. 4:14-CV-00015-RLY..:..TA, Sept. 16, 2014)- F.Supp.3d - - (S.D.Ind.2014).
So which is it? Is marriage a purely civil institution or is it a hybrid of religious and civil acknowledgments of a relationship? So far no court has declared that Jaws recognizing that marriage exists only between a husband and wife violate the Establishment Clause. Presumably; the issue thus far has been avoided at least in part because the notion that traditional marriage Jaws violate the Establishment Clause borders on the absurd. Just recently, the United States Supreme Court concluded that the practice of opening legislative meetings with prayer does not violate the Establishment Clause solely because the same practice occurred during the period the First Amendment was framed and ratified. See Town of Greece v. Galloway,- U.S.--, 134 S.Ct. 1811, 188 LEd.2d 835 (2014).1tseems safe to assume that the Founders similarly perceived no Establishment Clause problem with state marriage laws. Regardless of the chance of succeeding on such a claim on its merits today, the fact that some proponents of samesex marriage now contend that traditional marriage laws violate the Establishment Clause suggests that some of the same precepts upon which the proponents rely in the current debate may be renewed in arguments over successive issues yet to come.
28 As has been noted, the United States Supreme Court stated in Maynard v. !-fill, 125 U.S. 190, 8 S.Ct. 723, 31 LEd. 654
(1888), that marriage is "the most important relation in life," id. at 205, 8 S.Ct. 723, and that it is "the foundation of the family and of society, without which there would be neither civilization nor progress," icl. at 211, 8 S.Ct. 723. Judge Cordy in his dissenting opinion in Goodridge observed:
"Casting the right to civil marriage as a 'fundamental right' in the constitutional sense is somewhat peculiar. It is not referred to as such in either the State or Federal Constitution, and unlike other recognized fundamental rights (such as the right to procreate, the right to be free of government restraint, or the right to refuse medical treatment), civil marriage is wholly a creature of State statute. If by enacting a civil marriage statutory scheme [a state] has created a fundamental right, then it could never repeal its own statute without violating the fundamental rights of its inhabitants."

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

440 Mass. at 366 n. 3, 798 N.E.2d at 985 n. 3 (Cordy, J., dissenting).

The DeBoer Court provided an extensive explanation as to why categorizing the right to marry as fundamental in the constitutional sense

"makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L.Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny.

"Consider also the number of people eligible to marry. As late as the eighteenth century, '[t]he predominance of monogamy was by no means a foregone conclusion,' and '[m]ost of the peoples and cultures around the globe' had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage's fabric. Beginning in the nineteenth century, the federal government 'encouraged or forced' Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. !d. at 26; see Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?

"Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L.Rev. 1817, 1824-32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed 'desirable in many parts of the world'; indeed, around '1 0 percent of marriages worldwide are between people who are second cousins or closer.' Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009).... Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when Kansas-followed by seven other States-enacted the first ban. See Diane B. Paul & Hamish G. Spencer, 'It's Ok, We're Not Cousins by Blood': The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Gi1assemi v. Ghassemi, 998 So.2d 731, 749 (La.Ct.App.2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so."

DeBoer v. Snyder, 772 F.3d 388, 412-13 (6th Cir.2014){emphasis omitted}.

These observations take issue with the United States Supreme Court's designation of marriage as a fundamental constitutional right. Perhaps the strongest recommendation for this view is the simple fact that the United States Constitution does not mention marriage. Indeed, the Supreme Court has observed that "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." 1-taddock v. Haddock, 201 U.S. 562,575, 26 S.Ct. 525, 50 L.Ed. 867 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (i942).

Saying that marriage is not a fundamental constitutional right would not demean its importance because "something can be fundamentally important without being a fundamental right under the Constitution." DeBoer. 772 F.3d at 4i '!. It would simply mean that the Constitution does not dictate policy on the matter.

See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472 {"The case does involve two adults who, with full and mutual consent

from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect

for their private lives. The State cannot demean their existence or control their destiny by making their private sexual

conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct

without intervention of the government.").

3 i

For that matter, if love is the defining criterion for marriage, then why must it be limited to marriage between two persons

who are both adults, or for that matter between two persons? Where is the definitional limitation in such a criterion? What

other limitations that we assume will continue to be true of marriage would logically yield to this criterion?
32 See DeBoer, 772 F.3d at 404 ("One starts from the premise that governments got into the business of defining marriage,

and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended

and unintended effects of male-female intercourse.").

Ex parte State ex rei. Alabama Policy Institute, -·· So.3d ---- (2015)

33
34
35

One need only consider paternity to name one obvious example of the ways in which marriage organizes social relations. See, e.g., Lehr v. Robertson, 463 U.S. 248, 263, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (noting that "[t]he most effective protection of the putative father's opportunity to develop a relationship with his child is provided by the laws that authorize formal marriage and govern its consequences").
In a footnote of its opinion, the federal district court rejected several of these purposes of traditional marriage laws -the history and tradition of marriage, encouraging responsible procreation, promoting optimal child-rearing-as not constituting "compelling" state interests by simply citing Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014). Bostic sidelined the importance of these purposes of marriage by taking the view that marriage is not just about procreation; rather it is concerned with the happiness of a relationship between two adults. See Bostic, 760 F.3d 352, 380 ("[Dhe Supreme Court rejected the view that marriage is about only procreation in Griswold v. Connecticut, in which it upheld married couples' right not to procreate and articulated a view of marriage that has nothing to do with children."). There are at least three problems with this tactic.
First, no one is saying that "marriage is about only procreation." Bostic, 760 F.3d at 380 (emphasis added). The State
is simply stating that a primary public purpose of marriage concerns procreation and that this is sufficient justification to make a distinction in law as to the types of couples who can marry. The fact that marriage encompasses more than procreation does not by itself invalidate procreation as an interest in the State's marriage policy. Second, the decision in Griswold was not based on a "right to marry"; it was based on a right to privacy. See Griswold, 381 U.S. at 486, 85 S.Ct. 1678 ("We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system.") As with the discussion above about Lawrence, the problem in Griswold was government's interference with an intimate aspect of an existing relationship, in which the Griswold Court clearly was referring to the traditional marriage relationship. {Why else would contraception even be an issue?) The issue here concerns the government's public recognition of a relationship that until 2002 was unknown in history as being categorized as "marriage."
Third, the Bostic Court's cavalier rejection of the purposes of traditional marriage fails to acknowledge that the Court made a moral judgment that the new definition of marriage is superior to the traditional view. As Steven Smith has noted:
"[H]ow can we argue about the desirability or justice of restrictions on abortion, or marriage, or drug use, without somehow drawing upon our larger vision of the good life, and upon the religious or philosophical assumptions that give rise to and inform those visions? It is a large question. But the short answer, it seems, is that we cannot."
Steven D. Smith, Disenchantment, at 105. The Bostic Court's opinion is replete with moral assertions made as statements of fact
"[S]ame-sex couples [arguably] want access to marriage so that they can take advantage of its hallmarks, including faithfulness and permanence, and that allowing loving, committed samesex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage."
760 F.3d at 381.
"[T]he Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry."
I d.
"[B]y preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm the children of same-sex couples by stigmatizing their families...."
!d. at 383.
Regardless of whether one agrees or disagrees with these assertions, the fact remains that they represent the imposition of the Bostic (and Searcy I) Court's moral views upon the State under the guise of legal reasoning. It is not reasoning of "a" plus "b" equals "c"; it is the declaration of social policy through judicial fiat under the guise of constitutional law.
"Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation

Ex parte State ex rei. Alabama Policy Institute, ••• So.3d •••• {2015)

between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman."

Sevcik v. Sandoval, 9"11 F.Supp.2d 996, 1015 (D.Nev.2012).
36 The DeBoer Court noted:

"Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-yearolds swim/bike/run triathlons), why doesn't a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don't have kids and many gay couples do)?"

37
38
39
41

DeBoer, 772 F.3d at 407.
One commentator characterizes the Court's approach in these cases as amounting to name-calling on a scholarly level: "Typically, judicial decisions invalidating challenged laws ultimately boil down to peremptory assertions by judges that the law in question has no 'rational basis' or is the product of prejudice or 'animus.' Thus, citing 'a substantial number of Supreme Court decisions, involving a range of legal subjects, that condemn public enactments as being expressions of prejudice or irrationality or invidiousness,' Robert Nagel shows how 'to a remarkable extent, our courts have become places where the name-calling and exaggeration that mark the lower depths of our political debate are simply given more acceptable, authoritative form.' "
Steven D. Smith, The Disenchantment of Secular Discourse, 9 (2010) (quoting Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Northwestern Univ. L.Rev. 193, 199 (1993)).
This is what one law professor has deftly labeled " The Not-Nice School of Constitutional Law,' " by which he meant that "the Constitution is taken simply to prohibit any state or federal action that is not nice. Whatever the text may actually provide, this school transforms it into an engine of political wish-fulfillment. What we don't like in government, the Constitution outlaws." Craig A Stern, Things Not Nice: An Essay on Civil Government, 8 Regent U.L.Rev. 1, 2 (1997). See also Robicheaux v. Caldwell, 2 F.Supp.3d 910, 925 (E.D. La. 2014) ("The feder<'.ll court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of Justice Scalia in a different context in Bond v. United States, -U.S.--·,--, 134 S.Ct. 2077, 2094, 189 L.Ed.2d 1 (2014) (concurring opinion), appear to have assumed the mantle of a legislative body.").
As already noted, the Supreme Court's substantive-due-process cases require "a 'careful description' of the asserted fundamental liberty interest." G!ucksberg, 521 U.S. at 720-21, 1'1"1 S.Ct. 2258 (quoting Reno, 507 U.S. at 302, 113 S.Ct. 1439).
The Lawrence Court stated that "this Court's obligation is to define the liberty of all, not to mandate its own moral code." Lawrence, 539 U.S. at 559, 123 S.Ct. 2472. Interestingly, in her special writing in Lawrence, Justice O'Connor stated: "Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.'' Lawrence, 539 U.S. at 585, 123 S.Ct. 2472 (O'Connor, J., concurring in the judgment)(emphasis added).
The Windsor Court also stated that DOMA "places same-sex couples in an unstable position of being in a second-tier
marriage."- U.S. a t - - , 133 S.Ct. at 2694. Justice Scalia responded:

"It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here -when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will 'confine' the Court's holding is its sense of what it can get away with."

--U.S. - - , '133 S.Ct. at 2709 (Scalia, J., dissenting, joined by Thomas, J.).
42 Several courts have inveighed that people's moral or religious views of marriage can have nothing to do with the legality of
the institution. See, e.g., Baskin v. Bogan, 766 F.3d 648,669 (7th Cir.2014} ('To be the basis of legal or moral concern ...
the harm must be tangible, secular, material-physical or financial, or, if emotional, focused and direct-rather than moral or spiritual.... Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-

Ex parte State ex rei. Alabama Policy Institute, --- So.3d ---- (2015)

sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of."); Varnum v. Brien, 763 N.W.2d 862, 905 (Iowa 2009} ("State government can have no religious views, either directly or indirectly, expressed through its legislation.... As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals."); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 251, 957 A.2d 407, 475 (2008) ("Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage."); Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 312, 798 N.E.2d 941, 948 (2003} ("Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us.").
This divorce of moral and religious ideas from legal debate is now common:

"In [the classical] view, the function of moral reasoning is to determine what actions, or what kind of life, conform to a normative order inherent in nature itself.... A good deal of thinking about suicide, and about moral questions generally, still operates on some such assumption. In much public discourse, however, and especially in academic and legal contexts, explicit appeals to normative dimensions in nature are typically deemed inadm'rssible. Moral reasoning is supposed to operate without reliance on religious or metaphysical premises."

Smith, Disenchantment, at 60.

43 "The secular philosophical tradition speaks of inalienable rights, inalienable human dignity and of persons as ends in

themselves. These are, I believe, ways of whistling in the dark, ways of trying to make secure to reason what reason

cannot finally underwrite." Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice 5 (Routledge

2000) (1998).

44

"[T]here is no apparent reason why anyone should be persuaded [by intuitions]. After all, what credentials can these

intuitions claim? Whether intuitions are reliable is, of course, always a question, but in this case the problem goes

deeper: it is not at all clear exactly what the intuitions are even about. Suppose I do have a 'moral' intuition (whatever

that is) that, say, polygamous relationships are 'wrong' (whatever that means). So what? I may also harbor an

obsessive fear of traveling on airplanes, or an abiding premonition that something horrible will happen if I leave the

house on Friday the thirteenth, or a sense of profound disgust when I look down at my plate and see that the peas

have gotten mixed with the potatoes. Unless these feelings, intimations, or intuitions are grounded in something

rational and objectively real; the proper response in each case, it seems, would be therapeutic in nature; it would be

a response calculated to help me and anyone else subject to such debilitating feels and intuitions 'Get over it!'

"Conversely, insofar as contemporary deontological thinkers forego therapeutic response and instead treat such

intuitions with utmost respect, it is hard to resist the suspicion that they are acting on lingering assumptions-their

own, possibly, or perhaps those of the people whose intuitions provide them with their material-about an intrinsic

normative order."

Smith, Disenchantment, at 66 (footnotes omitted).
"Acceptance of the broad description requires rejection of two salient aspects of the narrow description of marriage. First, it requires rejecting the notion that marriage is no more than what the narrow model describes. Although genderless marriage proponents rarely, if ever, expressly state that notion of 'no more than,' the notion is always implicit in their arguments. 103 Second, the broad description also requires rejecting the idea that children are not 'the sine qua non of civil marriage' and that 'marriage and children are not really connected.' The broad description portrays marriage as primarily a child-protective and child-centered institution, with most of the institution's social goods pertaining to the quality of child-rearing. Conversely, the narrow model describes an adultcentered 'partnership entered into for its own sake, which lasts only as long as both partners are satisfied with the rewards (mostly intimacy and love) that they get from it.'

" 103 ... This phenomenon merits close examination for two reasons. First, the notion itself goes to the heart of the veracity of the narrow and broad descriptions; if the 'no more than' notion is factually accurate, it must follow that what the broad description depicts beyond the narrow description's scope is factually false. Conversely, if the 'no more than' notion is erroneous as a matter of fact, that error would be established by the validation of the broad description's additional depictions. Second, if-as demonstrated elsewhere-the 'no more than' notion is always

J;

Ex parte State ex rei. Alabama Policy Institute,--- So.3d ---- (2015)

46
4 7
48
49
51
52
53
54
55

or nearly always implicit and therefore not expressly stated and defended, that aspect is also important. /d. It is important because it constitutes probative evidence about how defensible the 'no more than' notion is." Monte Neil Stewart, Marriage Facts, 31 HaN. J.L. & Pub. Pol'y 313, 337-38 (2008} (mostfootnotes omitted; emphasis omitted).
According to the National Conference of State Legislatures, only 11 states have accepted same-sex marriage as a result of choices made by the people or their elected representatives. The 26 other states that, to any extent, now have samesex marriage do so because it has been imposed on them by court order (21 of these by federal courts). See http:// www.ncsl.org/research/human-seNices/same-sex-marriage-laws.aspx# 1 (last visited March 2, 2015; a copy of the Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court). The jurisdiction of probate courts is limited to matters provided by statute. AltaPointe Health Sys., Inc. v. Davis, 90 So.3d 139, 154 (Aia.2012).
See Alabama Power Co. v. Citizens of State, 740 So.2d 371, 381 (Aia.1999) (defining "judicial power" vested by the Constitution as "the special competence to decide discrete cases and controversies involving particular parties and specific facts").
Probate judges are entrusted with performing numerous nonjudicial tasks, such as maintaining corporate records, A!a.Code 1975, § iOA-1-4.02; issuing driver's licenses, Ala.Code 1975, § 32-6-4; and, in some counties, seNing as the chairperson of the county commission, Ala. Code 1975, § 11-3-i(c). I submit that this Court would not, pursuant to its original jurisdiction, attempt to review a probate judge's performance of any of these tasks. Albritton discusses the predecessor statute to what is now§ 12-2-7(3).
I am not stating that a probate judge's decision to issue a marriage license can never be challenged in the Alabama Supreme Court. I am stating that the case must first be filed in circuit court and then appealed to this Court, where our decision would then have statewide application.
See also Ala.Code 1975, § 36-15--21 ("All litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General.").
This Court has held that standing must exist at the commencement of the litigation and cannot be cured by subsequently adding to the case a party that has the requisite standing. Cadle Co. v. Shabani, 4 So.3d 460, 462-63 (A!a.2008). Therefore, this Court's recognition and alignment of additional petitioners after the case was commenced cannot cure the standing problem.
I have argued in the past that Lujan does not apply in Alabama in certain circumstances; this Court has not agreed with me. See McDaniel v. Ezell, [Ms. 1130372, January 30, 2015]- So.3d - - (Aia.2015) (Shaw, J., dissenting), and Ex parte Alabama Educ. Television Comm'n, 151 So.3d 283 (Aia.2013) (Shaw, J., dissenting). Nevertheless, even I agree that Lujan applies in a case such as this: "I believe that in ... general challenges to government action, the Lujan analysis is helpful." Ex parte Alabama Educ. Television, '!51 So.3d at 294 n. 11 (Shaw, J., dissenting). That Code section, we have held, does not apply to mandamus petitions governed by the Alabama Rules of Appellate Procedure. See Ex parte Johnson, 485 So.2d 1098 (Aia.1986). The plain language of the Code section does not contain such a restriction. I question whether Ex parte Johnson excuses the filing of an unverified petition when this Court's original, and not appellate, jurisdiction is invoked, but I see no need to belabor that issue at this point.

End of Document

© 2016 Thomson Reuters. 1\lo claim to original U.S. Government Works.

Strawser v. Strange, 307 F.R.D. 604 (2015)

l

::::·7""=--:-=-:::~~~-~~~~-~-~--~-~~~~~--~~~~-~

EXHIBIT
L

KeyCite Blue Flag- Appeal Notification Appeal Filed by TIM RUSSELL v. JAMES STRAWSER. ET AL Cir., June 4, 2015

Motion granted.
lith

307 F.R.D. 604 United States District Court,
S.D. Alabama, Southern Division.
James N. STRAWSERet al., Plaintiffs, v.
Luther STRANGE, et al., Defendants.

West Headnotes (26)
[f! Federal Civil Procedure
Discretion of court Whether to certifY a class is a matter within the discretion of the district court. Fed.Rules Civ.Proc.Rule 23. 28 U.S.C.A.

Civil Action No. 14-0424-CG-C.
I
Signed May 21, 2015.
Synopsis Background: Persons in Alabama who wished to obtain a marriage license in order to marry a person of the same sex filed putative class action against county probate judges who were enforcing Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages, seeking declaratory judgment striking down Alabama's laws banning same-sex marriage and an injunction barring their enforcement. Plaintiffs moved for class certification.

Holdings: The District Court, Callie V.S. that:

J., held

[ l Jplaintiff class was sufficiently numerous;

(2] plaintiff class was ascertainable;

(3] defendant class was sufficiently ascertainable;

[4] plaintiff class met commonality requirement;

[5] defendant class met commonality requirement;

f6] plaintiff class met typicality requirement;

[7] defendant class met typicality requirement; and

[8] single county probate judge was adequate to represent defendant class.

Cases thai cite this headnote
Fedenil Civil Procedure Evidence: pleadings and supplementary
material The initial burden of proof to establish the propriety of class certification rests with the advocate of the class. Fed. Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
Cases that cite this headnote
!31 Fedet·al Civil Procedure
Class Actions Chief among the justifications for class certification is its efficiency; adjudication of a properly-constituted class action generally has res judicata effect and saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion. Fed.Rules Civ .Proc.Rulc 23(a). 28 U .S.C.A.
Cases that cite this headnote
Civil Impracticability ofjoining a!i members of dass; numerosity While no bright-line test exists for determining numerosity, as required for class action certification, and although the dete1mination rests on the court's practical judgment in light of the facts of the case, generally less than 21 is inadequate, more than 40 adequate, with

Strawser v. Strange, 307 F.R.D. 604 (2015)

numbers between varying according to other factors. Fed.Rules Civ.Proc.Rule 23(a)(l), 28 U.S.C.A.
Cases that cite this headnote

[51 Federal Civil Procedure Impracticability ofjoining all members of
class; numerosity
To meet numerosity requirement for class action certification, plaintiff need not show the precise number ofmembers in the class; rather, estimates as to the size of the proposed class are sufficient for a class action to proceed. Fed.Rules Civ.Proe.Rule 23(a)(l), 28 U.S.C.A.
Cases that cite this headnote

Clivi! Procedure ImpracticabUity ofjoining all members of class: numerosity On motion for class action, court may make common sense assumptions to support a fmding of numerosity. Fed.Rules Civ.Proc.Rule 23(a) (1), 28 U.S.C.A.
Cases that cite this headnote

lF'edcnl! Civil Procedure impracticability
clnss; numerosity

all members of

When the numerosity question is a close one on motion for class action certification, a balance should be struck in favor of a finding of numerosity, since the court has the option to later decertify the class. Fed.Rules Civ .Proc.Ru!e 23(a)(l ), (c)(l ), 28 U.S.C.A.

Cases tim~ cite this headnote

Representative or class actions
Federal Civil Procedm·e Particular Classes Represented
Even ifcensus data estimating that Alabama was home to approximately 6,582 same-sex couples was off by an order of magnitude, numerosity

requirement for class action certification was still plainly met in suit brought against county probate judges by gay and lesbian individuals seeking declaratory judgment striking down Alabama's laws banning same-sex marriage and injunction barring their enforcement. Fed. Rules Civ.Proc.Rule 23(a)(l ), 28 U.S. C. A.
Cases that cite this headnote
[9j Declaratory Judgment Representative or class actions
F'ederal Civil Procedure Particular Classes Represented
Proposed class of gay and lesbian individuals who wished to obtain a marriage license in order to marry a person of the same sex was ascertainable, as required for certification oftheir class action against Alabama's county probate judges seeking declaratory and injunctive relief striking down Alabama laws banning samesex marriage, since any same-sex couples who attempted to apply for a marriage license plainly would qualify as members of the proposed class; identification of class members would not require any individualized fact-fmding, nor was it based on unknowable or unascertainable information. Fed.Ru!es Civ.Proc.Rulc 23(a). 2S li.S.C.A.
I Cuscs that cite this headnote
Federal Civil Procedure Impracticability ofjoining aH members of
class; numerosity Federal Civil Procedure
Identification of ciass; subciasses The fact that class members are not specifically identifiable supports rather than bars the bringing of a class action, because joinder is impracticable. Fed.Rules Civ.Proc.Rule 23. 21)
S.C. A.
Cases that cite this headnote
[Hj Representative or class actions
Fcden1i Civil Procedure

Strawser v. Strange, 307 F.R.D. 604 (2015)
9Tf=ed~R..serv.3cns15~·-~~-
Particular Classes Represented
Defendant class of Alabama county probate judges was sufficiently numerous, and thus, certifiable on this basis, in class action brought against the judges by gay and lesbian individuals seeking declaratory judgment striking down Alabama's laws banning same-sex marriage and injunction barring their enforcement; putative defendant class of 68 judges was readily identifiable, joinder of all judges was impractical, and class adjudication would save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
Cases that cite this headnote

Federal Civil Procedure Common interest in subject matter.
questions and relief; damages issues
Commonality, as required for class action certification, requires that there be at least · one issue whose resolution will affect all or a significant number of the putative class members; common contention must be of such a nature that it is capable of_classwide resolution, which means that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in one stroke. Fed.Ru!es Civ.Proc.Rule 23(a)(2), 28 tJ.S.C.A.
Cases that cite this headnote

Federal Civil Procedun~ Common interest in subject matter.
questions and relief; damages issues

Commonality, as required for class action

certification, does not require that the class have

all the same issues in common; rather, claims

actually litigated in the suit must simply be

those fairly represented by the named plaintiffs.

Fed.Rules Civ.Proc.Rulc

28 ti.S.C.A.

Cases that cite this headnote

[14}

\. 'I

Representative or class actions
Federal Civil Procedun' Particular Classes Represented
Questions of law or fact were common to class, and adjudication would clearly resolve claims class-wide, in one stroke, as required for certification of class action brought against county probate judges by gay and lesbian individuals seeking declaratoryjudgment striking down Alabama's laws banning samesex marriage and injunction barring their enforcement; even though some class members had already been issued same-sex marriage licenses and others were waiting to do so, common question involved the validity of samesex marriage licenses, in general, and the state's recognition of rights stemming from these licenses. Fed.Rules Civ.Proc.Rule 23(a}(2), 28 lJ.S.C.A.
( 'ascs thnl ci1c this headnote

Federal Civill'rocedure Particular Classes Represented

Questions of law or fact were common to

defendant class, as required for certification

of class action bro_ught against county probate

judges by gay and lesbian individuals seeking

declaratory judgment striking down Alabama's

laws banning same-sex marriage and injunction

barring their enforcement; question common to

the entire 68-member defendant class of judges

was whether their enforcement of Alabama's

laws barring same-sex couples from marriage

violated the Due Process and Equal Protection

Clauses of the Fourteenth Amendment, and

resolution of this question would resolve

the claims against all of judges in one

stroke. U.S.C.A.

14·; Fed.Rules

Civ. Proc .Ruk

('ases that cite headnote

Federal Civil P>ocedure Representation of class; lypicaliry:
standing in general

Strawser v. Strange, 307 F.R.D. 604 (2015)
91~.3d 15~15-"--~-,--~~-,-~~"~~~--M<<- --·-~"~"~~~,
Federal Civil Procedun~ Common interest in subject matter,
questions and relief damages issues Although the issues of commonality and typicality are separate, the proof required for each tends to merge on motion for certification of a class. Fed. Rules Civ .Proc.Ru!c 23(a)(2, 3), 28 U.S.C.A.
Cases that cite this headnote
[1/j Federal Civil Procedure Representation of class; typicality:
standing in general Federal Civil Procedure
Common interest in subject matter. questions and relief: damages issues In context of class actions, traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class. Fcd.Ru!cs Civ.Proc.Rulc 23(a)(2, 28 U.S.C.A.
Cases thal cite Jbis headnote
[18] Fedend Civil Procedure Representation of class:. typicality:
standing in general The claim of a class representative is typical, as required for certification of class action, if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. Fed.Rulcs Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
Cases that cite this headnote
('lasses Represen1ed Claims of class representatives were typical of those of class, as required for certification of class action brought against Alabama county probate judges by gay and lesbian individuals

seeking declaratory judgment striking down Alabama's laws banning same-sex marriage and injunction barring their enforcement; proposed class representatives and class members all sought to marry or have their marriages recognized, but had been refused because they were of the same sex, and their inability to be married or have their marriages recognized arose from the same event or pattern or practice of events occurring before county probate judges. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
Cases that cite this headnote
Federal Civil Proccdun: Particular Classes Represented
Defendant class representatives had typical defenses to class action claims, as required for certification of class action brought against Alabama county probate judges by gay and lesbian individuals seeking declaratoryjudgment striking down Alabama's laws banning samesex marriage and injunction barring their enforcement; judges all operated under the same statutory framework, they had the same ministerial duties, their defenses arose from the same course of events involving nonissuance of marriage licenses or non-recognition of prior marriages, and each defendant class member would make the same legal arguments to defend against plaintiffs' allegations. Fcd.Rules Civ.Proc.Ruie 23(a)(3), 28 UXC.A.
Cases that cite this headnote
[2 R} Fedcrafi Ch·i! Procedure Representation of dass; typicality: in general
The adequacy of representation requirement for class action certification encompasses two inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class, and (2) whether the representatives will adequately prosecute the action. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.

i, l

Strawser v. Strange, 307 F.R.D. 604 (2015)
Cases that cite this headnote
!221 Declaratory Judgment
Representative or class actions Federal Civil Procedure
Particular Classes Represented Single Alabama county probate judge was adequate to represent defendant class of 68 judges, as required for certification of class action brought against Alabama county probate judges by gay and lesbian individuals seeking declaratory judgment striking down Alabama's laws banning same-sex marriage and injunction barring their enforcement; any perceived weaknesses in defendant class representative's status stemming from his professed neutrality was offset by the inclusion of Alabama's Attorney General as an additional named defendant who was defending the statutes' constitutionality, and whatever their personal positions were on the constitutionality of Alabama's marriage laws, it was their common obligation to carry out their ministerial duties that gave rise to a common defense. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
Cases that cite this headnote
Federal Civil Pr·ocedure Factors, grounds. objections. and
considerations in general I<ederal Civil Procedure
Common interest in subject matter. questions and relief; damages issues Because the risk that judicial action will create incompatible standards of conduct is low when a party seeks compensatory damages, only actions seeking declaratory or injunctive relief can be certified under provision of class action rule providing for class adjudication where there is a risk that inconsistent or varying judgments in separate lawsuits would establish incompatible standards of conduct for the party opposing the class. Fed.Rules Civ.Proc.Rule 23(b)(I)(A), 28 U.S.C.A.
__'t) 1(·1 f!ifl!

Cases that cite this headnote
[241 Representative or class actions
Federal Civil Procedure Pmticular Classes Represented
Certification of class action brought against county probate judges by gay and lesbian individuals seeking declaratory judgment striking down Alabama's laws banning samesex marriage and injunction barring their enforcement was proper under provision of federal class action rule providing for class adjudication where there is a risk that inconsistent or varying judgments in separate lawsuits would establish incompatible standards of conduct for the party opposing the class; plaintiffs did not seek compensatory damages, and the prosecution of separate actions by these individuals created a high risk of inconsistent decisions by county probate judges who had been interpreting the law differently. Fed.Rules Civ.Proc.Rule 23(b)(l )(A), 28 U.S.C.A.
Cases that cite this headnote
Federal Civill'rocedu.re Particular Classes
Certification of class action brought against county probate judges by gay and lesbian individuals seeking declaratory judgment striking down Alabama's laws banning samesex marriage and injw1ction barring their enforcement was proper under provision of federal class action rule providing for class adjudication where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; defendants' actions in refusing to issue samesex marriage licenses was directed against all plaintiffs, it was uniform in its application, all plaintiffs had been harmed by either being denied the ability of obtaining a marriage license or

Strawser v. Strange, 307 F.R.D. 604 (2015)

failure of probate judges to recognize samesex marriage, and their injury could be properly addressed by class-wide injunctive or equitable relief. Fed.Ru!es Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
l Cases that cite this headnote

Chelsea, AL, John David \Vhetstone, Gulf Shores, AL, for Defendants.
ORDER CALLIE V.S. GRANADE, District Judge.

[26] Decl:u·atory Judgment Representative or class actions
Federal Civil Procedure Common interest in subject matter,
questions and relief; damages issues
For class certification under provision of federal class action rule providing for class adjudication where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole, two basic requirements must be met: (I) the class members must have been harmed in essentially the same way by the defendant's acts, and (2) the common injury may properly be addressed by classwide injunctive or equitable remedies. Fed. Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
Cases that cite this headnote

Attorneys and Law Firms

*608 Christopher F. Stoll, San Francisco, CA, Randall

C. Marshall, ACLU of Alabama Foundation, Inc., David

Dinielli, Scott D. McCoy, Montgomery, AL, Heather Rene

Fann, Boyd, Femambucq, Dunn & Fann, P.C., Birmingham,

AL, Shannon P. Minter,

Khan, Zacbary Alan Dieterl,

Washington, DC, for Plaintiffs.

James W.

Office of the Attorney General, Laura

Elizabeth

Andrew L. Brasher, Jamie Helen Kidd,

Kendrick E. Webb, Webb & Eley, P.C., Montgomery, AL,

Joseph Michaei Druhan, Jr., Johnston Druhan, LLP, Harry V.

Satterwhite, Satterwhite & Tyler, LLC, Lee L. Ha!e, Hale and

Hughes, Mobile, AL, Mark S. Boardman, Boardman, Carr,

Bennett, Watkins, Hill & Gamble, P.C., Clay Richard Carr,

Boardman, Carr & Hutcheson, P.C., Teresa Bearden Petelos,

This matter is before the Court on Plaintiffs' motion for class certification (Doc. 76), opposition filed by Defendants Luther Strange (Docs. 78, 99) and Judge Don Davis (Doc. 90), and Plaintiffs' reply (Doc. 100). For the reasons explained below, the Court fmds that Plaintiffs' motion for class certification should be granted.
DISCUSSION
Plaintiffs move for class cettification ofa PlaintiffClass and a Defendant Class in this matter. The Plaintiff Class is defined as:
All persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to samesex couples and barring recognition of their marriages.
The proposed Defendant Class is defined as: "All Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance ofmarriage licenses to same-sex couples and refusing to recognize their marriages."
[1] [2] [3] Whether to certify a class is a matter within the discretion of the court. :\foon! 1'. Am. Fed'n & Radio Artists, 216 F.3d 1236, 241 (! lth Cir.2000), cert. denied, 533 U.S. 950. 12! S.Cl. 2592. !50 L.Ec1.2d 75! (2001 ). "The initial burden of proofto establish the propriety of class certification rests with the advocate of the class." Rutstcinr. AFis Rent-A-Car Svs.. Inc., 2I l F.3d 1228, !233 (llth Cir.2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1354. 149 L.Ed.2d 285 (200i). Chief among the justifications for class certification is its efficiency: adjudication of a properly-constituted class action generally has res judicata

Strawser v. Strange, 307 F.R.D. 604 (2015)

effect and "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." Califano \1• Yamasaki, *609 442 U.S. 682, 701, 99 S.Ct. 2545, 61 LEd.2d 176 (1979). For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must satisfY all four of the threshold requirements set forth in Federal Rule of Civil Procedure 23(a) and then show that the action is maintainable under at least one of the three provisions of Rule 23(b). Amchem Prods.. Inc. v. Windsor. 521 U.S. 591, 613-14, 117 S.Ct.

925, 930 (11th Cir.l983). "Estimates as to the size of the proposed class are sufficient for a class action to proceed." Wright, 201 F.R.D. at 537 (citation omitted). "Furthermore, this Court may make common sense assumptions to support a finding of numerosity." Dujanovic v. MortgageAmerica, Inc., i85 F.R.D. 660, 666 Q'>i.D.AJa.1999) (citations and internal quotations omitted). "[W]here the numerosity question is a close one, a balance should be struck in favor of a fmding of numerosity, since the court has the option to decertifY pursuant to Rule 23(c)(l)." Evans. 696 F.2d at 930 (citations omitted).

223 I, 138 L.Ed.2d 689 (1997); Turner v. Beneficial Corp.,

242 F.3d 1023. 1025 (11th Cir.200l) (en bane), cert. denied, 534 U.S. 820, 122 S.Ct. 51, 151 L.Ed.2d 21 (2001). The four threshold requirements are (I) numerosity: "the class is so numerous that joinder of all members is impractical;" (2) commonality: "there are questions of law or fact common to the class;" (3) typicality: "the claims or defenses of the representative parties are typical of the claims or defenses of the class; and" (4) adequacy: "the representative parties will fairly and adequately protect the interests of the class." FED.R.CIV.P. 23(a); Turner, 242 F.3d at 1025 n. 3; Pickett v. Iowa Bee_{Processors, 209 F.3d 1276, 1279 (11th Cir.2000). Rule 23(b) requires a party to show that either (I) prosecution by separate actions would create a risk of inconsistent results; or (2) defendants have acted in ways generally applicable to the class, making declaratory or injunctive relief appropriate; or (3) common questions of law or fact predominate over individual issues. Moor!?, 2!6 F.3d at !241.

[8] To support their numerosity claim with regard to the proposed Plaintiff Class, Plaintiffs cite to census data from 20 I 0 indicating that Alabama is home to approximately 6,582 same-sex couples. (Doc. 76-2). Hundreds of gays and lesbians married statewide in Alabama following entry of this Court's previous orders and the experience of other states indicates that when they are allowed to do so, many same-sex couples will continue to marry well after their right to do so was fust recognized. M.V. Lee Badgett & Christy Mallory, The Windsor Effect on Marriages by Same-Sex Couples, The Williams Institute, I (Dec. 20I4), http:bit.ly/I Cx57w6 (reporting that despite the fact that same-. sex marriage had been available in these states since at least 20 I 0, in Connecticut there were 668 same-sex marriages in 2012 and I355 same-sex marriages in 3013, in New Hampshire there were 389 same-sex marriages in 2012 and 566 same-sex marriages in 2013, and in Vermont there

were 472 same-sex marriages in 20I2 and 980 same-sex

A.

marriages in 20 I3). When presented with similar evidence the District Court for the Western District of Virginia found that

1. Numerosity

numerosity had plainly been met, explaining as follows:

[4] [5] [6] [7] For a class to meet the first requirement *610 Plaintiffs here ground their good faith estimate

of Rule 23(a), it must be "so numerous that joinder of all

on the 20IO United States Census, which reported over

members is impracticable." FED.R.CIV.P. 23(a)(i). "[N]o

15,000 same-sex households in the Commonwealth. Br.

bright-line test for determining numerosity" exists and the

in Supp. re Mot. to CertifY Class, Dkt. No. 27, at 5.

"determination rests on the Court's practical judgment in

While defendants question the reliability of the census

light of the facts of the case." Wright 1'. Circuit Citv Stores.

data cited by plaintiffs, there can be little doubt that the

Inc.. 201 F.R.D. 526. 537 (N.D.Aia.200l) (citations omitted).

numerosity requirement is satisfied. Defendants' argument

However, it has been held that "generally less than twenty-

is akin to the one rejected by the Court in Thomas v.

one is inadequate, more than forty adequate, with numbers

Louisiana--Pacific

246 f.R.D. 505

.2007).

between varying according to other factors." Cox 1· American

"Although Defendants contest numerosity, Defendants in

Cast fro11 Pipe Co., 7S4 F.2d 546, 1553 !ll th Cir.

substance simply argue Plaintiffs' estimate is incorrect.

see also LaBaun: 1·. Olin Corp.. 231 F.R.D. 632, 665

Even assuming the accuracy of Defendants' estimates, the

(S.D.Ala.2005) (''Numerosity is generally presumed when

numerosity requirement is satisfied[.]" Id at 509. The

a proposed class exceeds 40 members." citations omitted).

same is true in this case. Even if the census data is off

"[A] plaintiff need not show the precise number of members

by an order of magnitude, the numerosity requirement is

in the class." Evans l'. U.S. Pipe & Foundt:F Co.. 696 F.2d

plainly met. See, e.g., Gunnells v. Healthplan Servs.. Inc..

Strawser v. Strange, 307 F.R.D. 604 (2015)

348 F.3d 417, 425 (4th Cir.2003) (noting with approval the district Court's observation that "I400 employees plus their families" "easily" satisfied Rule 23(a)( I)'s numerosity requirement). Recent experience in Utah makes this point clear. In an article posted on January 8, 2014, CNN reported that"[o]fficials say more than a thousand marriage licenses between gay and lesbian couples were issued in the 17 days between the initial ruling and the high court's Monday order blocking enforcement." Bill Mears, Utah Will Not Recognize Same-Sex Marriages Peiformed Before High Court Stay, CNN Political Ticker (Jan. 8, 20I4, I: I7 PM), http://politicalticker.blogs.cnn.com/2014/01/08/utah-willnot-recognize-same-sex-marriages-performed-beforehigh-court-stay/. The 2010 census data, coupled with the actual experience in Utah, amply supports the conclusion that the number of same-sex couples in Virginia seeking to be married under the laws of the Commonwealth far exceeds any number which would be practical for joinder. Plaintiffs' good faith estimate meets the numerosity requirement.
Harris v. Rainey, 299 F.R.D. 486, 490 (W.D.Va.20l4). Although the estimated number of same-sex households in Alabama is considerably less than in Virginia, the number estimated in Alabama still far exceeds the amount needed to satisfy the numerosity requirement. The Court is also aware ofthe considerable confusion that followed this Court's entry of orders finding that Alabama's laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages were unconstitutional. Although hundreds of same-sex couples were reportedly able to obtain marriage licenses, there were many more, like the new named Plaintiffs in this case, that were denied marriage licenses or did not attempt to apply for a license for fear of being turned away or because it was difficult to make firm wedding plans not knowing if they could obtain a marriage license. As reported above, the number of samesex couples that sought marriage licenses well after the initial allowance of such man·iages in Connecticut, New Hampshire and Vermont-states with smaller populations than Alabama, far exceeded any number that would be practical for joinder. Thus, even ifthere had been no confusion over the issuance of marriage licenses in Alabama, the experience of these other states indicates that the number of same-sex couples who would seek marriage licenses in the coming years ifthey were permitted to do so would far exceed the number that would be practical for joinder. Accordingly, this Court finds that the 20IO census data coupled with the actual experience in other states amply supports the conclusion that the number ofsame-

sex couples in Alabama seeking to be married far exceeds any number which would be practical for joinder.
[9] Defendants contend that the Plaintiff Class is too vague because it is based on subjective standards-whether a couple desires a marriage license. However, as Plaintiffs point out, probate judges would have no difficulty identifying those affected by the requested injunction since any samesex couples who attempt to apply for a marriage license plainly qualify as members of the proposed class. In a similar case, the Western District of Virginia was presented with a similar objection to a proposed class and found that the potential plaintiffs' application *611 for a marriage license was observable and objective. Ha1Tis. 299 F.R.D. at 496--497 ("Here, observable and objective actions determine whether couples fall within the class definition by virtue of their application for a marriage license or request for recognition of an out-of-state marriage."). As in Harris, the proposed class definition here "will not require any individualized fact-finding, nor is it based on unknowable or unascertainable information. As such, it meets the requirement of ascertainability." Id at 497.
[10] The fact that the class members "are not specifically identifiable supports rather than bars the bringing of a class action, because joinder is impracticable." Doe v. Charleston Area Med Ctr.. Inc.. 529 F.2d 638, 645 (4th Cir.l975); see also Mever v. Citizens and Southern Nat. Bank. 106 F.R.D. 356, 360 (M.D.Ga.l985) ("Difficulty in identifying class members makes joinder more impractical and certification more desirable." citing Charleston Area Med Ctr., Inc. supra and Jack v. American Linen Supp(l' Co., 498 F.2d 122, 124 (5th Cir.l974)). Nor is it a problem that seeking to obtain a marriage license involves an element of choice. As Plaintiff correctly points out, courts have routinely certified classes defined by characteristics of choice. See e.g. Pederson v. Louisiana State University, 213 F.3d 858. 865 (5th Cir.2000) (class consists of female students who seek to participate in varsity intercollegiate athletics); Carpenterv. Davis, 424 F.2d 257, 260 (5th Cir.l970) (class includes all who wish or expect to write for, publish, sell or distribute the newspaper in the future); Charleston Area Med. Ctr., Inc., 529 F.2d at 645 (class consists of persons seeking abortions).
[11] As to the proposed Defendant Class, Plaintiffs seek to certify as defendants, all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages. There are

Strawser v. Strange, 307 F.R.D. 604 (2015)

91 Fed.R.Serv.3d 1515·~-

·-~-~~-·--··~·-~-~·~···--············~·-········~··-··

68 probate judges in Alabama, all of which have refused, or stroke." Wal-~-MartStores, Inc. v. Dukes, U.S.

131

may in the future refuse, to issue marriage licenses to samesex couples based on Alabama's laws. As discussed above, "[n]umerosity is generally presumed when a proposed class exceeds 40 members." LaBauve, 231 F.R.D. at 665. Although the members of the Defendant Class are readily identifiable, the Court finds that joinder of all of them is impractical. As stated previously, one of the primary reasons for certifYing a class is its efficiency. Adjudication of this case as to all 68 probate judges "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." Califano, 442 U.S. at 701, 99 S.Ct. 2545. Plaintiffs identify many courts that have certified defendant classes of local or county-level official in cases that challenge a law executed at a local level. See e.g. Callahan v. Wallace. 466 F.2d 59 (5th Cir.l972) (defendant class of justices of the peace, sheriffs and state troopers); !lfonaco F. Stone. !87 F.R.D. 50 (E.D.N.Y.l999) (local criminal court judges); Ragsdale 1'. Tumock, 734 F.Supp. 1457 (N.D.Ili.l990) (all State Attorneys), affd, 941 F.2d 501 (7th Cir.l99l ); A!mm Ctr.for

S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). In this case, only same-sex couples who seek a marriage license and to have that marriage recognized under Alabama law are included as members of the Plaintiff Class. Judge Davis contends that commonality is not met because some of the named plaintiffs have already obtained pmiial relief in that they were issued marriage licenses in Alabama. Judge Davis's argument seems to be more a question of standing, which this Court has previously addressed. Commonality does not require that the class have all the same issues in common. "The claims actually litigated in the suit must simply be those fairly represented by the named plaintiffs." Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.l986). The validity of the marriage licenses that have been issued to same-sex couples in Alabama is still at issue. If probate judges view Plaintiffs' marriage documents as invalid or void, probate Court records could reflect that the Plaintiffs who have received marriage licenses are not validly married. Additionally, if probate judges refuse to recognize same-sex marriages the plaintiffs' rights will be

Reprod. Health v. Rosen, 110 F.R.D. 576 (N.D.Obio 1986) affected when petitioning for adoption or when their estates

(state prosecutors); Harris v. Graddick, 593 F.Supp. 128 are being probated. Plaintiffs' claims are based on the same

(M.D.A!a.l984) (county officials responsible for appointing poll officials). Courts in Alabama have even certified the same defendant class requested in this case--all Alabama

legal theories as those of the absent class members. Whatever factual nuances may exist among putative class members, the legal relief sought is the same: a declaratory judgment

probate judges. See e.g. Hadnott v. Amos, 295 F.Supp. 1003, 1005 (M.D.Aia.l968) rev'd on other grds., 394 U.S. 358,

striking down Alabama's laws banning same-sex marriage and an injunction barring their enforcement. Such relief rests

89 S.Ct. J !01, 22 L.Ed.2d 336 (1969) (certifying a class of on identical questions of law and would clearly resolve the

defendants composed of the Judges ofProbate of all counties claims class-wide and in one stroke.

in Alabama); Sims 1'. Fril1k, 20f\ F.Supp. 43 l

l962)

affd, sub nom.,

v. Sims, 377 US 533. 1\4 S.Ct. [15] Similarly, there are common questions of law that

1362. 12 L.Ed.2d 506 (l

(same). The Court finds that would be resolved as to all of the members of the proposed

while all 68 probate judges are known, it is impracticable to join them all and their inclusion in the class will serve the

Defendant Class. The proposed Defendant Class consists of 68 probate judges who are enforcing Alabama's laws barring

interests ofjudicial economy.

same-sex couples from marrying. The question common to

the entire Defendant Class is whether their enforcement of

Alabama's laws barring same-sex couples from marriage

2. Commonality

violates the Due Process and Equal Protection Clauses of the

[12] [13] [14] Commonality requires the presence of Fourteenth Amendment. The resolution of this question will

questions oflaw or fact common to the class. FED.R.CIV.P.

23(a)(2). Commonality requires "that there be at least one

issue whose resolution will affect all or a significant number

of the putative class members." *612

\' Afacon

resolve the claims against all of members of the class in one stroke. Thus, the Court finds that the Defendant Class meets the commonality requirement of Rule

County

Inc.. 562

782, 78g (ll th

Cir.2014) (citation and internal quotations omitted). "That 3. Typicality

common contention, moreover, must be of such a nature [16] [17] [18] [19] [20] Typicality requires that "the

that it is capable of classwide resolution-which means that claims or defenses of the representative parties [be] typical

determination of its truth or falsity will resolve an issue that of the claims or defenses ofthe class." FED.R.CIV.P. 23(a)

is central to the validity of each one of the claims in one (3). Although the issues of commonality and typicality are

'.' I •

Strawser v. Strange, 307 F.R.D. 604 (2015)

separate, the proof required for each tends to merge. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (lith Cir.l996) (citation omitted). "Traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class." Piazza v. Ebsco Industries, Inc., 273 F. 3d !341, 1346 (11th Cir.200 1) (citation omitted). "The claim of a class representative is typical if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory." Williams v. Mohawk Indus.. Inc., 568 F.3d 1350, 1357 (lith Cir.2009). In the instant case, Plaintiffs ask this Court to appoint Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Holloway Pigg III, Gary Wayne Wright II and Brandon Mabrey as class representatives. The proposed class representatives seek to marry and have their matTiages recognized, but have been refused a marriage license because they are of the same sex. Their inability to be married and have their marriages recognized because they are of the same sex is shared by all members of the proposed Plaintiff Class and arises from the same event or pattern or practice of events. Similarly, the Defendant class representatives have typical defenses to *613 those claims. The Defendants all operate under the same statutory framework and have the same ministerial duties. Their defenses arise from the same course of events and each class member may make the same legal arguments to defend against the Plaintiffs' allegations. Because the injuries, claims and defenses of the named Plaintiffs and Defendants in this case are typical. of the injuries, claims of the entire proposed classes, the typicality requirement of Rule 23(a) is met.
4. Adequacy [21] Adequacy of representation reqmres that "the representative parties will fairly and adequately protect the interests of the class." FED.R.CIVP. 23(a)(4). The adequacy of representation requirement encompasses two inquiries: "(1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action." Valier Drug Co. 1'. Genem Pharm., Inc., 350 F.3d ll8L 189 ( lllh Cir.2003) (citation omitted). Defendants do not seriously challenge the assertion that the named Plaintiffs and their counsel will vigorously prosecute this action. Additionally, because the Court has determined that the named Plaintiffs and the putative class share commonality and typicality, it follows, that "the named plaintiffis'] claim[s] and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected

in their absence." Dukes, 131 S.Ct. at 2551 n. 5 (noting that commonality and typicality determinations tend to merge with the adequacy-or-representation requirement); see also Amchem Prock, Inc., 52! U.S. at 620, 117 S.Ct. 2231 ("The adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." citations omitted). The Court finds that Plaintiffs have no substantial conflict of interest with the class and that Plaintiffs will adequately prosecute this action on behalf of the Plaintiff Class.

[22] As to the Defendant Class adequacy of representation,

Defendant Davis asserts that he cannot be an effective class

representative because there is no unified position of the 68

probate judges on the constitutionality of denying marriage

licenses to same-sex couples and because he has never made

public statements or taken a public stance on the matter.

However, the issuance of marriage licenses is a purely

ministerial act. See Ex parte State ex ref. Alabama Policy

fnstitute,

So.3d

2015 WL 892752, *8

(Ala., March 3, 20 15) (discussing and referring to the probate

judges' "ministerial act of licensing marriages"). None of

the Defendant Class members are charged with discretion or

judgment in carrying out this ministerial duty. Whatever their

personal positions are on the constitutionality of Alabama's

marriage laws, it is their common obligation to carry out their

ministerial duties that give rise to a common defense. See

Sherman r?X rei. Sherman\'. Tmmship High School Dist.. 540

F.Supp.2d

992 (N.D.Hl.2008) ("Whatever the position

of any individual school district on the constitutionality of

the Act, the common obligation to implement it gives rise

to a common defense."); see also National Broadcasting

Co.. fnc. ''·Cleland, 697 F.Supp. !204, 1217 (N.D.Ga.l988)

("Because the Fulton County Board has the same duties

and responsibilities as all other county Superintendents of

Elections, the Fulton County Board, as class representative,

can fairly and adequately protect the interests ofthe defendant

class of Superintendents."). "Rule 23(a)(4) does not require

a willing representative, [but] merely an adequate one."

697 F.Supp. at 1217. Additionally, "any perceived

weaknesses in [Judge Davis's] status as class representative

stemming from [his] professed neutrality" "are offset by

the inclusion of [Attorney General Strange] as a named

defendant" who is defending the statutes constitutionality.

Sherman, 540 F.Supp.2d at 992; see also Redhai! v.

Strawser v. Strange, 307 F.R.D. 604 (2015)

Zablocki, 418 F.Supp. l06I, 1066 (D.C.Wis.l976) ("Not class as a whole." FED.R.CIV.P. 23(b)(2). "The 'generally

only is defendant Zablocki's interest identical to that of the other county clerks, but the attorney representing him is from *614 the Milwaukee County Corporation Counsel's

applicable' language signifies 'that the party opposing the class does not have to act directly against each member of the class.'" Han·is. 299 F.R.D. at 494 (quoting WRIGHT &

office which is experienced in conducting federal litigation. MILLER§ 1775). "Instead, '[t]he key is whether the party's

Furthermore, the Attorney General ofWisconsin has taken an actions would affect all persons similarly situated so that

active part in this action, urging that the challenged statute be upheld."). In light of the foregoing reasons, the Court finds that each of the four Rule 23(a) requirements is satisfied for both the proposed Plaintiff and Defendant Classes.

those acts apply generally to the whole class.' "Id (citations omitted). For class certification under 23(b)(2), "[t]wo basic requirements must be met: (1) the class members must have been harmed in essentially the same way by the defendant's

acts; and (2) the common injury may properly be addressed by

B. Rule 23(b) In addition to meeting the requirements of Rule 23(a), a class must also qualif'y under one of the three "types" of classes set forth in Rule 23(b). Plaintiffs contend certification under both 23(b)(l)(A) and 23(b)(2) are proper.

class-wide injunctive or equitable remedies." Williams v. Nat. Sec. Ins. Co., 237 F.R.D. 685, 693 (M.D.Ala.2006) (citing Holmes v. Cominental Can Co.. 706 F.2d l 144. ll55 (11th Cir. I 983 )). Defendants' alleged conduct is directed against a specific class of people, same-sex couples, and is uniform in its application. All Plaintiff Class members have been

harmed by being denied the ability of obtaining a marriage [23] [24] Federal Rule of Civil Procedure 23(b)(l)(A) license and their injury can be properly addressed by class-
provides for class adjudication where there is a risk that wide injunctive relief. Thus, this case falls squarely within the inconsistent or varyingjudgments in separate lawsuits "would ambit ofRule 23(b)(2). establish incompatible standards of conduct for the party

opposing the class." FED.R.CIV.P. 23(b)(l)(A). Because the

risk that judicial action will create incompatible standards of conduct is low when a party seeks compensatory damages,

CONCLUSION

only actions seeking declaratory or injunctive relief can be certified under Rule 23(b)( 1)(A). Inre Dennis Greenman Sec.

For the reasons explained above:

Litig., 829 F.2d 1539, 1545 (lith Cir.l987). In the instant case, Plaintiffs do not seek compensatory damages and it is clear that the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications. Defendants' only real argument against certification under 23(b)(l)(a) is that the issues will only really be resolved when the United States Supreme Court has the fmal say on these inconsistencies. This Court has already considered Defendants' requests to stay this case pending the Supreme

1. Plaintiffs' motion to certif'y a Plaintiff Class consisting of all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to samesex couples and barring recognition of their marriages is GRANTED.

Court's mling and has denied said requests. A class-wide mling by this Court would definitively determine the issues
as to all of the Plaintiffs' claims against all 68 probate judges
n1 Alabama. This Court is aware that the Supreme Court of
the United States will ultimately have the final say on these

*615 2. The Court APPOINTS Kristi Ogle and Jennifer Ogle, Keith Ingram and Albert Holloway Pigg III, Gary Wayne Wright II and Brandon Mabrey as Lead Plaintiffs and Plaintiff Class representatives.

issues, but until that time this Court must consider the claims and rights of the parties before this Court. The Court finds certification is proper under Rule 23(b)( 1)(A).

3. The Court APPOINTS the National Center for Lesbian Rights, Americans United for Separation ofChurch and State, the Southern Poverty Law Center, and ACLU Foundation

[25] [26] The Court also finds that certification is proper under Rule 23(b)(2). Rule 23(b)(2) applies when "the party

of Alabama as Co-Lead Counsel for Lead Plaintiffs and the Plaintiff Class.

opposing the class has acted or refused to act on grounds that apply generally to the class, so that fmal injunctive relief or corresponding declaratory relief is appropriate respecting the

4. Plaintiffs' motion to certif'y a Defendant Class consisting of all Alabama county probate judges who are enforcing or in

Strawser v. Strange, 307 F.R.D. 604 (2015} 91 Fed.R":serv.3d 1515-

the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages is GRANTED.
5. The Court APPOINTS Judge Don Davis and Judge Tim Russell as Lead Defendants and Defendant Class representatives.

6. The Court APPOINTS Lee L. Hale, Satterwhite, Druhan, Gaillard & Tyler, LLC, and Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C. as Co-Lead Counsel for Lead Defendants and the Defendant Class.
All Citations
307 F.R.D. 604, 91 Fed.R.Serv.3d 1515

End of Document

© 20'16 Thomson Reuters No claim to ong1nai US Government Works

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~Str~aw~se~rv~. S~tra~ng~e,·10-5 -F.S~up-p.~3d~13-23~(2~01-5)--···--~-~---~-----~~~~~

EXHIBIT
M

KeyCite Blue Flag- Appeal Notification Appeal Filed by JAMES STRAWSER. ET AL v TIM RUSSELL 11th Cir., June 4, 2015

105 F.Supp.3d 1323 United States District Court,
S.D. Alabama, Southern Division.

James N. STRAWSER, et al., Plaintiffs,

V.

[2!

Luther STRANGE, in his official capacity as Attorney

General for the State ofAlabama, et al., Defendants.

Court may grant preliminary inju~n-lllliii!Wifllrjlllllllllllllllllllllllllillll
plaintiff demonstrates: (I) substantial likelihood of success on merits; (2) substantial threat that irreparable injury will occur absent issuance of injunction; (3) that threatened injury outweighs potential damage requested injunction may cause non-moving parties; and (4) that injunction would not be adverse to public interest.
Cases that cite this headnote
Injunction Maniage and divorce

Civil Action No. 14-0424-CG-C.
I
Signed May 21, 2015. Synopsis Background: Same-sex couples filed class action against state and county officials alleging that Alabama laws prohibiting and refusing to recognize same-sex marriage violated their constitutional rights. Plaintiffs moved to preliminary injunction.
Holdings: The District Court, Callie V.S. Granade, J., held that:
[!] plaintiffs were entitled to class-wide preliminary injunction against enforcement of state marriage laws prohibiting same-sex marriage;
[2] Rooker-Feldman doctrine did not bar action; and
[3] state supreme court decision upholding state's prohibition against same-sex marriage did not preclude district court from entering preliminary injunction.
Motion granted.
West Headnotes (5)

Unions
Same-sex couples were likely to prevail on merits of their claim that Alabama laws prohibiting and refusing to recognize same-sex marriage violated their equal protection and due process rights and their inability to exercise their fundamental right to marry caused them irreparable harm that outweighed any injury to state and county officials, and thus were entitled to class-wide preliminary injunction against enforcement of state marriage laws prohibiting same-sex marriage. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
Courts Constitutional questions, civii rights. and
discrimination in general
Rooker-Feldman doctrine did not bar same-sex couples' class action challenging constitutionality of Alabama laws prohibiting and refusing to recognize same-sex marriage, even though state court mandamus proceeding was pending in state court to enforce challenged statute, where couples were not party to state court action, and court's finding that Alabama's marriage sanctity laws were unconstitutional predated state court mandamus action.
Cases that cite this headnote

Grounds in general: multiple facrors

Courts

Strawser v. Strange, 105 F.Supp.3d 1323 (2015)

Assumption and exercise of conflicting jurisdiction in general In,iunction
Marriage and divorce Alabama Supreme Court decision upholding state's prohibition against same-sex marriage did not preclude federal district court from entering preliminary injunction barring state and county officials from enforcing Alabama laws prohibiting or failing to recognize same-sex marriage, based on its determination that laws likely violated Equal Protection and Due Process Clauses. U.S.C.A. Const. Art. 6, cl. 2; Ala.Code 1975, § 30-1--19.
Cases that cite this headnote
Constitutional Law Marriage and divorce in general
Constitutional Law Same-sex marriage
Maniage Power to regulate and control
Marriage Same-Sex and Other Non-Traditional
Unions Alabama's Sanctity ofMarriage Amendment and Alabama Marriage Protection Act violated Due Process Clause and Equal Protection Clause. U.S.C.A. Const.Amend. !4; Ala.Const. Art. I,§ 36.03; Ala.Code 1975, § 30-! -19.
Cases that cite this headnote
West Codenotes
Held Unconstitutional AJa.Code 1975. § 30--i- l9; Ala.Const. Art. I,§ 36.03
Attorneys and Law Firms
*1324 Christopher F. Stoll, San Francisco, CA, David Dinielli, Scott D. IVfcCoy, Randall C. Marshall, ACLU of Alabama Foundation, Inc., Montgomery, AL, Heather Rene Fann, Boyd, Femambucq, Dunn & Fann, P.C., Birmingham, AL, Shannon P. Minter, Ayesha Khan, Zachary Alan Dietert, Washington, DC, for Plaintiffs.

James W. Davis, Office of the Attorney General, Laura Elizabeth Howell, Andrew L. Brasher, Jamie Helen Kidd, Kendrick E. Webb, Webb & Eley, P.C., Montgomery, AL, Joseph Michael Drohan, Jr., Johnston Drohan, LLP, Harry V. Satterwhite, Satterwhite & Tyler, LLC, Lee L. Hale, Hale and Hughes, Mobile, AL, Teresa Bearden Petelos, Mark S. Boardman, Clay Richard Carr, Boardman, Carr & Hutcheson, P.C., Chelsea, AL, John David Whetstone, Gulf Shores, AL, for Defendants.
ORDER
CALLIE V.S. GRANADE, District Judge.
This matter is before the court on Plaintiffs' motion for preliminary injunction (Doc. 76), opposition thereto filed by Attorney General Strange (Doc. 78, 99) and Judge Don Davis (Doc. 90), and Plaintiffs' reply (Doc I00). For the reasons explained below, the Court finds that Plaintiffs' motion for preliminary injunction should be granted, but stayed pending the ruling of the U.S. Supreme Court in Obergefell v. Hodges and related cases.
[1] The decision to grant or deny a preliminary injunction "is within the sound discretion of the district court ..." Palmer v. Braw1, 287 F.3d l 325, l 329 ( ll th Cir.2002). This court may grant a preliminary injunction only if the plaintiff demonstrates each of the following prerequisites: (I) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the required injunction may cause the nonmoving parties; and (4) the injunction would not be adverse to the public interest. *1325 !d., 287 F.3d at 1329; see also McDonald~~ Corp. v. Robertson, 147 F.3d 1301, 1306 (lith Cir.1998). "In this Circuit, "[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the 'burden of persuasion'" as to the four requisites." McDonald\· Corp., !47 F.3d at 1306; All Care Nm~~ing Service. Inc v. Bethesda Memorial Hospital, .Tnc.. 887 F.2d 1535, 1537 (lith Cir.l989)(a preliminary injunction is issued only when "drastic relief' is necessary.)
The claims in this case are brought by persons in Alabama who wish to marry a person of the same-sex and to have that marriage recognized under Alabama law. This court previously issued preliminary injunctions in this case prohibiting the Alabama Attorney General, Probate

Strawserv. Strange, 105 F.Supp.3d 1323 (2015)

Judge Don Davis, and their "officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage" from enforcing the Alabama laws which prohibit same-sex marriage. (Docs. 29, 55). The frrstpreliminary injunction against Attorney General Luther Strange, was initially stayed, but went into effect on Monday, February 9, 20I5, after the Eleventh Circuit Court ofAppeals and the Supreme Court ofthe United States denied Attorney General Strange's request to extend the stay. (Doc. 40, Exh. 1; Doc. 43, p. 2). This Court also denied subsequent requests by Defendants to stay. (Doc. 88). The Court allowed Plaintiffs to amend their complaint to add both named parties

undiagnosed illness. (Doc. 76-4, ~ 3). Ingram and Pigg drove to the probate office in Houston County on February 9, 20I5 to obtain a marriage license, but were told by the clerk that the probate judge, Judge Patrick Davenport, would not issue them a *1326 marriage license. (Doc. 76-4, ~ 4). They drove to the Houston County Probate Office again on February I7, 20 I5 and were again informed that Judge Davenport would not issue them a marriage license. (Doc. 76-4, ~ 5). On March 5, 2015, Ingram called the office of Baldwin County Probate Judge Tim Russell and asked if they could get a marriage license, but was informed that Judge Russell's office was only issuing marriage licenses to "traditional" different-sex couples. (Doc. 76-4, ~ 6).

and class claims (Doc. 92), and has today certified both a

Plaintiff Class and a Defendant Class. Plaintiffs now seek a third preliminary injunction that would apply to the new named parties and both Plaintiff and Defendant Classes.

Plaintiffs Gary Wayne Wright II and Brandon Mabrey have lived together in Alabama for six years and have been in a committed, loving relationship for eighteen years. (Doc.

The named Plaintiffs report that they are all over the age of I9 and want to get married and feel demeaned and humiliated by Alabama's refusal to treat them on a basis equal to that of opposite sex couples. (Doc. 76-3, ~~ 1, 3; Doc. 76-4, ~~ I, 3; Doc. 76-5, ~~ I, 5). Plaintiffs Kristie Ogle and Jennifer Ogle have been in a committed, loving relationship for 22 years and have a child who was born in 2002 in Alabama. (Doc. 76-3, ~ 2). Kristie and Jennifer Ogle want to provide their son and their family with the stability and legal protections that marriage provides. (Doc. 76-3, ~ e). They experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 76-3, ~ 3). Kristie and Jennifer Ogle went to Mobile County Probate Court to obtain a marriage license on March 4, 20I5, but the Probate Office was not issuing licenses and they were unable to obtain one. (Doc. 76-3, ~ 4). On March 5, 2015 Kristie Ogle called the Baldwin County Probate Judge's office and was told that while they are issuing marriage licenses to opposite-sex couples, they are not issuing licenses to same-sex couples. (Doc. 76-3, ~ 4).

76-5, ~~ I, 2). Wright was honorably discharged from the U.S. Navy in 199I after I7 years of service for being gay. (Doc. 76-5, ~ 3). Wright has a muscular disorder that leaves him dependent on a wheelchair. (Doc. 76-5, ~ 4). Wright receives less veteran's benefits and coverage than he would if he were married. (Doc. 76-5, ~ 4). Wright and Mabrey want to get married to make their family legal and to declare their commitment to each other before their loved ones and community. (Doc. 76-5, ~ 5). Each day that they are not permitted to marry, they experience uncertainty about whether they will be treated as family members in the event of an emergency and they want to receive the legal protections and responsibilities that marriage provides. (Doc. 76-5, ~ 5). On February I2, 20I5, Mabrey called the Marshall County Probate Office, but was told that the office was not issuing marriage licenses to anyone. (Doc. 76~5, ~ 6). Wright sent an email to Marshal County Probate Judge, Tim Mitchell, on February I8, 2015, requesting that his office issue marriage licenses to same-sex couples, but received no response. (Doc. 76~5, ~ 7). On March 2, 20I5, Wright went to the Marshall County Probate Office to obtain a marriage license and the

Plaintiffs Keith Ingram and Albert Holloway Pigg III have been in a committed, loving relationship for approximately one year. (Doc. 76-4, ~ 2). Ingram and Pigg want to marry to make their family legal and to declare their commitment for each other before their loved ones and their community. (Doc.

clerk told him that the probate judge would not issue marriage licenses to anyone. (Doc. 76-5, ~ 8). On March 5, 2015, they called the Baldwin County Probate Office to ask if they could obtain a marriage license, but were told that the Baldwin County Probate Office was issuing licenses only to "traditional" different-sex couples. (Doc. 76-5, ~ 9).

76-4, ~ 3). Each day that they are not permitted to be married,

they experience uncertainty about whether they will be treated as family members in the event of an emergency. (Doc. 76-4, ~ 3). They are particularly anxious because Ingram has seen many doctors over the past several months for an

Plaintiffs contend that Alabama's laws prohibiting samesex marriage 1 violate their rights under the United States Constitution *1327 to Due Process and Equal Protection. This Court determined, in another case, Searn· v. Strange, 81

:_;(1; rli!

\tl

Strawserv. Strange, 105 F.Supp.3d 1323 (2015)

F.Supp.3d 1285, 2015 WL 328728 (S.D.Ala. Jan. 23, 2015), that Alabama's marriage laws prohibiting and refusing to recognize same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Searcy, this Court found that those laws restrict the Plaintiffs' fundamental marriage right and do not serve a compelling state interest.

690 (8th Cir.2008). The Court fmds that Defendants have not shown why these conclusions should not apply to all of the named parties as well as the Plaintiff and Defendant Classes. The named Plaintiffs' claims are representative of the claims of the entire Plaintiff Class and the newly added Defendant and Defendant Class have the same defenses as Judge Davis.

Although the Plaintiffs in this case seek to marry in Alabama, rather than have their marriage in another state recognized in Alabama, the Court, as it previously did in issuing the preliminary injunctions against Attorney General Strange and Judge Don Davis, adopts the reasoning expressed in the Searcy case and finds that Alabama's laws violate the Plaintiffs' rights for the same reasons. Alabama's marriage sanctity laws violate Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by prohibiting same-sex marriage. Because this Court has continued to find that said laws are unconstitutional, the Court also fmds that the new named Plaintiffs and the Plaintiff Class are likely to succeed on the merits of their claims.

[3] Defendant Strange urges this Court to avoid unnecessary conflict. Strange concedes that this case may not fit squarely within the Rooker-Feldman doctrine because the plaintiffs are not parties to the state court proceedings, but argues that this Court, in its discretion, could abstain to avoid tension between state and federal courts. However, as Strange notes, Plaintiffs were not party to the state-court mandamus proceeding. As such, Plaintiffs are not bound by the conclusions ofthe Alabama Supreme Court. A mandamus proceeding in a state court against state officials to enforce a challenged statute does not bar injunctive relief in a United States district court. Hale v. Bimco Trading. 306 U.S. 375. 377-378, 59 S.Ct. 526, 527, 83 L.Ed. 771 (1939). Actions attacking the constitutionality of such statutes can be brought

Although Davis contends that he is entitled to qualified immunity and Eleventh Amendment Iml)1unity, such immunities do not shield Davis from official capacity

by parties who are strangers to the state court action. ld The Hale Court held that strangers to a state court proceeding are not barted by the Anti-Injunction Statute, which was a precursor of the Anti-Injunction Act, from challenging the

suits seeking deClaratory and injunctive relief 2 *1328 constitutionality of a statute in federal court when the statute

Accordingly, Davis's immunity claims do not alter this courts conclusion that the Plaintiffs are likely to succeed on the

is also under litigation in the state courts. Courts since then have agreed. See e.g. Chezem v. Beverly Ente17Jrises-Texas,

merits of their claims.

Inc., 66 F.3d 741, 742 (5th Cir.1995) ("As the Supreme Court

has taught, the Anti-Injunction Act has no application herein

[2] After considering the circumstances of this case and because Carriage House and its residents were neither parties

in light of the finding that the laws in question are unconstitutional, the Court finds that Plaintiffs have met

nor privies of parties to the state court action."); Pelfh:snc v.
Village ol Williams Bal', 917 F.2d !OJ 7. l020 (7th Cir.l990)

the preliminary injunction factors. Entry of an additional ("Only a party, or, what amounts to the same thing in

preliminary injunction order against the new Defendant and contemplation of the law, one who is in privity with a party,

Defendant Class is warranted for the same reasons that is barred by the Anti-Injunction Act." Citations omitted);

the Court granted the previous preliminary injunctions. The named Plaintiffs are likely to prevail and their inability to

Munoz v. Imperia! County. 667 F.2d 811 (9th Cir.!982) (holding that federal plaintiffs were strangers to state-court

exercise their fundamental right to marry has caused them proceedings and affirming entry of injunction against county

irreparable harm that outweighs any injury to defendant. See officials). Defendants have not shown that any abstention

E!rodv. Bums, 427 U.S. 347,373.96 S.Ct. 2673.49 L.Ed.2d doctrine applies to this case. Moreover, this court's fmding

547 (1976) (holding that deprivation of constitutional rights that Alabama's marriage sanctity laws were unconstitutional

"unquestionably constitutes itTeparable harm."). Because the predates the state court mandamus action.

issuance ofmarriage licenses is a purely ministerial act, Judge

Davis, Judge Russell and the members ofthe Defendant Class have only a ministerial interest in issuing marriage licenses and would suffer little if any actual harm from the injunction. Additionally, "it is always in the public interest to protect

*1329 [4] Davis also argues that an additional preliminary injunction would be in direct contradiction to the order issued by the Alabama Supreme Court in Ex parte State, --- So.3d -----, 2015 WL 892752 (A.la. March 3, 2015).

constitutional rights." Phelps--Roper v. Nixon. 545 F.3d 685. It is true that if this Court grants the preliminary injunction

Strawser v. Strange, 105 F.Supp.3d 1323 (2015)

the probate judges will be faced with complying with either Alabama's marriage laws that prohibit same-sex marriage as they have been directed by the Alabama Supreme Court or with complying with the United States Constitution as directed by this Court. 3 However, the choice should be simple. Under the Supremacy Clause, the laws of the United States are "the supreme Law ofthe Land." U.S. CONST. art. V1, cl. 2. As the Supreme Court very recently explained:
It is apparent that this Clause creates a rule of decision: Courts "shall" regard the "Constitution," and all laws "made in Pursuance thereof," as "the supreme Law of the Land." They must not give effect to state laws that conflict with federal laws. Gibbons v. Ogden, 9 Wheat. l. 210 [6 L.Ed. 23] (1824).
***
For once a case or controversy properly comes before a court, judges are bound by federal law. Thus, a court may not convict a criminal defendant ofviolating a state law that federal law prohibits. See, e.g., PeJms)'!vania v. Nelson. 350 U.S. 497, 499, 509 [76 S.Ct. 477, J00 LEd. 640] (1956). Similarly, a court may not hold a civil defendant liable under state law for conduct federal law requires. See e.g., Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. - - , - - ---, [133 S.Ct. 2466, 2476-77, 186 L.Ed.2d 607] (2013) (slip op., at 13-14). And, as we have long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted. Ex parte Young, 209 U.S. 123. 155--156 [28 S.Ct. 441. 52 L.Ed. 714] (1908).
* * *
It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. See, e.g., Osborn F. Bal7k of Uliifed Stat<?s, 9 Wheat. 738,838--839.844 [6 L.Ed. 204] (!824); Erparte Young, supm, at 150-lSl [28 S.Ct. 441] (citing Davis v. Gro.v. 16 WalL 220 [2 1 L.Ed. 447] (i 873)).
* * *

The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history ofjudicial review ofillegal executive action, tracing back to England. See Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956).
Armstrong v. Exceptional Child Center, Inc., U.S.----·. 135 S.Ct. 1378, 1383, 1384, 191 L.Ed.2d 471 (2015). Judge Davis and the other probate judges cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution.
Defendant Strange argues that the members of the Defendant Class should be provided notice and an opportunity to respond *1330 before the Court considers issuing a preliminary injunction against them. However, when monetary damages are not sought, notice is discretionary to classes certified under Rule 23(b)(1) or (b)(2), like the classes in this case. See FED.R.CIV.P. 23(c)(2)(A); Penson v. Terminal Ti·ansport Co., Inc., 634 F.2d 989, 993 (5th Cir.l98l). Courts in this District and others have previously issued a preliminary injunction concurrently with certifying a class or even prior to fully certifying a class. See e.g. Harris v. Graddick, 593 F.Supp. !28 (M.D.Aia.l984) (certifying a plaintiff and defendant class concurrently with issuing a preliminary injunction); Kaiser v. Count)! of' Sacramento, 780 F.Supp. 1309, !312 (E.D.Cal.J99J) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants class certification arguments); Thomas v. Johnston, 557 F.Supp. 879. 916 n. 29 (W.D.Tex.J983) ("It appears to be settled ... that a district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers."). Here, Plaintiffs are not seeking monetary damages and the court has given Attomey General Strange and Judge Davis ample opportunity to address the preliminary injunction issues. The Comi fmds that no further briefmg or evidentiary materials are necessary. Plaintiffs have clearly met their burden for issuance of a class-wide preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marrtage.

What our cases demonstrate is that, "in a proper case, relief may be given in a court of equity ... to prevent an injurious act by a public officer." Carro!! v. Safford, 3 How. 441, 463!1 l LEd. 671] (1845).

Accordingly, the Court makes the following declaration:
* [5] It is ORDERED and DECLARED that ALA. CONST.
art. I, § 36.03 (2006) and ALA.CODE 1975 30- l 19

Strawser v. Strange, 105 F.Supp.3d 1323 (2015)

are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

any of the members of the Defendant Class who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

Plaintiffs' motion for preliminary injunction (Doc 76) is GRANTED and Judge Don Davis, Judge Tim Russell and the members of the Defendant Class are hereby ENJOINED from enforcing the Alabama laws which prohibit or fail to recognize same-sex marriage. If the named Plaintiffs or any members of the Plaintiff Class take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Don Davis, Judge Tim Russell and the members of the Defendant Class may not deny them a license on the ground that they are same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order, including any injunction issued by the Alabama Supreme Court pertaining to same-sex marriage. This injunction binds all the officers, agents, servants and employees, and others in active concert or participation with Judge Don Davis, Judge Tim Russell or

Plaintiffs are ORDERED to provide notice of this order and the order granting class certification to each member of the Defendant Class by mailing copies ofboth orders by certified mail to each class member at his or her office. 4 The notices *1331 should be mailed on or before May 26,2015.
It is FURTHER ORDERED that because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases 5 , the above preliminary injunction is STAYED until the Supreme Court issues its ruling.
All Citations
l05 F.Supp.3d 1323

Footnotes

1

The Alabama Sanctity of Marriage Amendment to the Alabama Constitution provides the following:

(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. (f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex. (g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.

ALA. CONST. ART. I, § 36.03 (2006).

The Alabama Marriage Protection Act provides:

(a) This section shall be known and may be cited as the "Alabama Marriage Protection Act."

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the

same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

Strawser v. Strange, 105 F.Supp.3d 1323 (2015)

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was

alleged to have occurred as a result of the Jaw of any jurisdiction regardless of whether a marriage license was issued.

ALA.CODE § 30-1-19.

2

Plaintiffs deny that Judge Davis is entitled to qualified immunity. Regardless, even if Judge Davis is entitled to qualified

immunity, qualified immunity does not bar declaratory or injunctive relief. D'Aguanno v. Gallagher, 50 F.3d 877, 879 (11th

Cir.1995) (citing Fortnerv. Thomas, 983 F.2d 1024, 1029 (11th Cir.1993)). Eleventh Amendment Immunity also does not

protect Judge Davis from claims for "prospective injunctive relief in order to end a continuing violation of federal law."

Tindol v. Alabama Dept. of Revenue, 2015 WL 350623, *10 (M.D.Aia. Jan. 23, 2015) (quoting Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)); see also Ex parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908) (holding that the Eleventh Amendment does not bar prospective injunctive relief against a state

officer (as distinct from the State itself) on the theory that a state official engaged in unconstitutional actions is stripped of

his official representative capacity.); Welch v. Estes, 2014 WL 7369424, *3 (N.D.Aia. Dec. 29, 2014) ("Although Eleventh

Amendment immunity protects state officials from suits for money damages, actions against a state official for prospective

injunctive relief are outside the protection offered by the Eleventh Amendment." citations omitted).

3

Probate Judges also have a third choice: they could choose to issue no marriage licenses and comply with both orders,

as Judge Davis has reportedly done.

4

While the court is confident that all of the probate judges will be notified almost immediately of this order through the

news media and other avenues, the Court finds formal notice to be prudent. Notice does not need to be mailed to Judge

Davis or Judge Russell as they will receive electronic notice of these orders.

5

These cases were argued on April 28, 2015, and a decision is expected by the end of this term.

End of Document

2016 Thomson Reuters. No claim to anginal U Government Works

()

Obergefell v. Hodges, 135 S.Ct. 2584 (2015)

N

plaintiffs' favor, and state appealed. Sar~-~II!Pv!!Pv••~

·~ KeyCt.te Yellow Flag- Negative Treatment
DeciJDed to Extend by Morris v. Brandenburg,
2015

N.M.App.,

135 S.Ct. 2584 Supreme Court ofthe United States

James OBERGEFELL, et al., Petitioners v.
Richard HODGES, Director, Ohio Department of Health, et al.;
Valeria Tanco, et al., Petitioners v.
Bill Haslam, Governor of Tennessee, et al.; April DeBoer, et al., Petitioners v ..

married outside Kentucky brought § 1983 actions challenging constitutionality of Kentucky's marriage-licensing law and August 11· dem"al of recogni.ti.on .~10r val"1d same-sex marn.ages. The United States District Court for the Western District of Kentucky, John G. Heyburn If, J., 996 F.Supp.2d 542, entered judgment in couples' favor, and state appealed. Same-sex couples who were legally married in other states before moving to Tennessee brought action challenging constitutionality ofTennessee's laws that voided and rendered unenforceable in Tennessee any marriage prohibited in state. The United States District Court for the Middle District of Tennessee, Aleta Arthur Trauger, J., 7 F.Supp.3d 759, granted couples' motion for preliminary injunction, and state appealed. The United States Court of Appeals for the Sixth Circuit, Sutton, Circuit Judge, 772 F.3d 388, reversed. Cases were consolidated and certiorari was granted.

Rick Snyder, Governor of Michigan, et al.; and

Gregory Bourke, et al., Petitioners
v.

Holdings: The Supreme Court, Justice Kennedy, held that:

Steve Beshear, Governor of Kentucky.
Nos. 14-556, 14-562, 14-571, 14-574.
1'
,. Argued April28, 2015.
Decided June 26, 2015.
Synopsis Background: Same-sex couple brought action alleging that voter-approved Michigan Marriage Amendment (MMA), which prohibited same-sex marriage, violated Equal Protection and Due Process Clauses. The United States District Court for the Eastern District of Michigan, Bernard A. Friedman, J., 973 F.Supp.2d 757, entered judgment in

[ 1] The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived ofthat right and that liberty, overruling Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65, and abrogating Citizens for Equal Protection v.
Bruning, 455 F.3d 859, Adams v. Howerton, 673 F.2d 1036, . and other cases, and
[2] States must recognize lawful same-sex marriages performed in other States.
Reversed.

couple's favor, and state appealed. Same-sex couples married in jurisdictions that provided for such marriages brought actions alleging that Ohio's ban on same-sex man·iages

Chief Justice Robet1s filed a dissenting opinion, in which Justices Scalia and Thomas joined.

violated Fourteenth Amendment. The United States District Court for the Southem District of Ohio, Timothy S. Black, J., 14 F.Supp.3d 1036, entered judgment in couples' favor, and state appealed. Same-sex spouses, who entered legal same-sex marriages in Maryland and Delaware, and Ohio funeral director sued Ohio officials responsible for death certificates that denied recognition ofspouses' same-sex legal marriages after death of their partners, seeking declaratory judgment and permanent injunction. The United States District Court for the Southern District of Ohio, Timothy S. Black, J., 962 F.Supp.2d 968, entered judgment in

Justice Scalia filed a dissenting opinion, in which Justice Thomas joined.
Justice Thomas filed a dissenting opinion, in which Justice Scalia joined.
Justice Alito filed a dissenting opinion, in which Justices Scalia and TI10mas joined.

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WestHeadnotes (22)
[t I Constitutional Law
..,. Bill of Rights in general Constitutional Law ~ Liberties and liberty interests The fundamental liberties protected by the Due Process Clause of the Fourteenth Amendment include most of the rights enumerated in the Bill of Rights, and in addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that defme personal identity and beliefs. U.S.C.A. Const.Amend. 14.
I Cases that cite this headnote
[2] Constitutional Law
e- Fundamental rights
The identification and protection offundamental rights is an enduring part of the judicial duty to interpret the Constitution, but that responsibility has not been reduced to any formula; rather, it requires courts to exercise reasoned judgment in identifYing interests of the person so fundamental that the State must accord them its respect.
I Cases that cite this headnote

i= Fourteenth Amendment in general Constitutional Law ~ Personal liberty The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning; when new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. U.S.C.A. Const.Amend. 14.
l Cases that cite this headnote
lSI Marriage
t- Nature of the obligation Marriage is one of the vital personal rights essential to the orderly pursuit of happiness by freemen.
l Cases that cite this headnote
Constitutional Law .,_ Marital Relationship The right to marry is fundamental under the Due Process Clause. U .S.C'.A. Const.Amend. 14.
9 Cases that cite this headnote

f3J Constitutional Law
IF Fundamentaliights History and tradition guide and discipline courts when identifying interests of the person so fundamental that the State must accord them its respect, but do not set its outer boundaries; that method respects our history and learns from it without allowing the past alone to rule the present
2 Cases that cite th is headnote
[4] Constitutional Law ~ Bill of Rights or Declaration of Rights
Constitutional Law

[7) Marriage ~ Nature of the obligation
The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
1 Cases that cite this headnote
[8} Marriage ~ Nature of the obligation Marriage F Same-Sex and Other Ntlll-Traditional
Unions The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy,

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c c

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, 115 A.F.T.R.2d 2015-2309...

and spirituality, and this is true for all persons, whatever their sexual orientation.
2 Cases that cite this headnote
[9) Marriage
e=> Nature of the obligation The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

not always co-extensive, yet in some instances each may be instructive as to the meaning and reach ofthe other, and in any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. U.S.C.A. Const.Amend. 14.
1 Cases that cite this headnote

2 Cases that cite this headnote
[101 Constitutional Law &=> Intimate association; dating relationships in
general Same-sex couples have the same right as opposite-sex couples to enjoy intimate association.
42 Cases that cite this headnote
1111 Marriage .,... Nature of the obligation
Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
2 Cases that cite this headnote
[12] Constitutional Law .,_. Fundamental rights If fundamental rights were defined by who
exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.
2 Cases that cite this headnote

[141 Constitutional Law
e= Marriage and divorce in general
The Equal Protection Clause can help to
identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution. U.S.C.A. Const.Amend. 14 .
Cases t11at cite this headnote
[151 Constitutional Law t=> Marriage and civil unions Constitutional Law ~ Same-sex marriage
Marriage .._ Same-Sex and Other Non-Traditional Unions
The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples ofthe same-sex may not be deprived ofthat right and that liberty; overruling Baker v. Nelson, 409 U.S. 810. 93 S.Ct. 37, 34 L.Ed.2d 65, and abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859, Adams v. Howerton , 613 F.2d 1036, and other cases. U.S.C.A. Const. Amend. 14.
19 Cases that cite this headnote

[131 Constitutional Law
e= Relationship to equal protection guarantee
The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles; rights implicit in liberty and rights secured by equal protection may rest on different precepts and are

[16] Constitutional Law ..,. Fundamental rights
The Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.

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Obergefell v. Hodges, 135 S.Ct. 2584 (2015) 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, 115A.F.T.R.2d 2015-2309...

3 Cases that cite this headnote

Cases that cite this headnote

[17] Constitutional Law ..,.. Constitutional Rights in General Constitutional Law i= Right of access to the comts and a remedy
for injuries in general The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power; thus, when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decisionmaking, and this holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.
3 Cases that cite this headnote
[18] Constitutional Law ..,. Persons Entitled to Raise Constitutional Questions; Standing Constitutional Law i- Requirement that complainant be injured
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right; the Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter, and an individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
Cases that cite this headnote
f19J Constitutional Law
i= Purposes of constitutions
The idea of the Constitution was to withdraw certain subjects from the vicissitudes ofpolitical controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.

[20) Constitutional Law oj=> Fundamental rights
Fundamental rights may not be submitted to a vote; they depend on the outcome ofno elections.
Cases that cite this headnote
[21] Constitutional Law
e= Marriage; bigamy
Religions, and those who adhere to religious doctrines, may advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned; the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. U.S.C.A. Const.Amend. I.
5 Cases that cite this headnote
[22] Marriage ~ Effect of foreign union There is no lawful basis for a State to refuse to
recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
24 Cases that cite this headnote
West Codenotes
Held Unconstitutional Ky.Const § 233A; KRS 402.005, *2588 402.020{1)(d), 402.040(2), 402.045; M .C'.L.A. Const. ArL 1, § 25; M.C'.L.A. §§ 551.1 , 551.271, 551.272; Ohio Const. Art. 15, § II; Ohio R.C. § 3 10 1.01; T.C'. A. Const. Art. 11, § 18; T.C.A. § 36-3-1 13.
Recognized as Unconstitutional I U.S.C. A. § 7

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SyHabus *
Michigan, Kentucky, Ohio, and Tennessee defme marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners' favor, but the Sixth Circuit consolidated the cases and reversed
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outof-State. Pp. 2593 - 2608.

public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime "demea[n] the lives ofhomosexual persons." *2589 Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U.S. - - , 133 S.Ct. 2675, 186 L.Ed.2d 808. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 2595-2598.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 2597 2607.

(a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 2593 - 2598.
(l) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect-and need-for its privileges and responsibilities, as illustrated by the petitioners' own experiences. Pp. 2593 - 2595.

(1) The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate. choices defining persopal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U .S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349; Griswoldv. Connecticut, 381 U.S. 479,484486, 85· S.Ct. 1678, 14 L.Ed.2d 510. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.

(2) The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed Wlderstandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving 1'. Virginia, 388 U.S . l, 12,87 S.Ct. 1817, 18 L.Ed.2d 1010, invalidated bans on interracial unions, and Tumer v. Sajlev.
that 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64, held
prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, a one-line summary decision issued in 1972

This dynamic can be seen in the Nation's experience holding that the exclusion ofsame-sex couples from marriag;

with gay and lesbian rights. Well into the 20th century, did not present a substantial federal question. But other, more

many States condemned same-sex intimacy as immoral, instructive precedents have expressed broader principles. See,

0

and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-

e.g., Lmvrence. supra, at 574, 123 S.Ct. 2472. I9 assessing whether the force and rationale of its cases apply to same-

sex couples to lead more open and public lives. Extensive sex couples, the Court must respect the basic reasons why the

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right to marry has been long protected See, e.g., Eisenstadt, supra, at 453-454, 92 S.Ct. 1029. 1bis analysis compels the

Finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of the Nation's social order.

conclusion that same-sex couples may exercise the right to See Maynardv. Hill, 125 U .S. 190,211,8 S.Ct. 723,31 L.Ed.

marry. Pp. 2597- 2599.

654. States have contributed to the fundamental character of

marriage by placing it at the center of many facets of the

(2) Four principles and traditions demonstrate that the reasons legal and social order. There is no difference between same-

marriage is fundamental under the Constitution apply with and opposite-sex couples with respect to this principle_, yet

equal force to same-sex couples. The first premise of this same-sex couples are denied the constellation of benefits that

Court's relevant precedents is that the right to personal choice the States have linked to marriage and are consigned to an

regarding marriage is inherent in the concept of individual instability many opposite-sex couples would find intolerable.

autonomy. 1bis abiding connection between marriage and It is demeaning to lock same-sex couples out of a central

liberty is why Loving invalidated interracial marriage bans institution of the Nation's society, for they too may aspire to

under the Due Process Clause. See 388 U.S., at 12, 87 S.Ct. the transcendent purposes of marriage.

1817. Decisions about marriage are among the most intimate

that an individual can make. See Larvrence, supra, at 574, 123 The limitation of marriage to opposite-sex couples may long

S. Ct. 2472. 1bis is true for all persons, whatever their sexual have seemed natural and just, but its inconsistency with the

orientation.

central meaning of the fundamental right to marry is now

manifest Pp. 2598 - 2602.

A second principle in this Court's jurisprudence is that the

right to marry is fundamental because it supports a two-person (3) The right of same-sex couples to marry is also derived

union unlike any other in its importance to the committed from the Fourteenth Amendment's guarantee of equal

individuals. The intimate association protected by this right protection. The Due Process Clause and the Equal Protection

was central to Griswold v. Connecticut, which held the Clause are connected in a profound way. Rights implicit

Constitution protects th~ right of married couples to use in liberty and rights secured by equal protection may rest

contraception, 381 U.S:, at 485, 85 S.Ct. i678, and was on different precepts and are not always co-extensive, yet

acknowledged in Turner, supra, at 95, 107 S.Ct. 2254. Same- each may be instructive as to the meaning and reach of

sex couples have the same right as opposite~sex couples to the other. This dynamic is reflected in Loving, where the

enjoy intimate association, a right extending beyond mere Court invoked both the Equal Protection Clause and the Due

freedom from laws making same-sex intimacy a criminal Process Clause; and in Zablocki v. Redhail, 434 U.S. 374,

offense. See Larvrence, supra, at 567, 123 S.Ct. 2472.

98 S.Ct. 673, 54 L.Ed.2d 618, where the Court invalidated

*2590 A third basis for protecting the right to marry

a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and

is that it safeguards children and families and thus draws societal understandings can reveal unjustified inequality

meaning from related rights of childrearing, procreation, and within fundamental institutions that once passed unnoticed

education. See, e.g., Pierce v. Socie(l' qf Sisters, 268 U.S. and unchallenged, this Court has invoked equal protection

510, 45 S.Ct. 571, 69 L.Ed. 1070. Without the recognition, principles to invalidate laws imposing sex-based inequality

stability, and predictability marriage offers, children suffer on marriage, see, e.g., Kirchberg v. Feenstra. 450 U.S. 455,

the stigma of knowing their families are somehow lesser. 460-461, I0 I S.Ct. 1195, 67 L.Ed.2d 428, and confirmed

They also suffer the significant material costs ·of being raised the relation between liberty and equality, see, e.g., ML.B. v.

by unmarried parents, relegated to a more difficult and S.L.J. , 519 U.S. 102, 120--121, 117 S.Ct. 555. 136 L.Ed.2d

uncertain family life. The marriage laws at issue thus harm 473.

and humiliate the children ofsame-sex couples. See Windsor.

supra, at - -, 133 S.Ct., at 2694-2695. This does not mean The Court has acknowledged the interlocking nature ofthese

that the right to marry is less meaningful for those who do constitutional safeguards in the context of the legal treatment

not or cannot have children. Precedent protects the right of a of gays and lesbians. See Lawrence. 539 U.S., at 575. 123

married couple not to procreate, so the right to marry cannot S.Ct. 2472. This dynamic also applies to same-sex marriage.

0

be conditioned on the capacity or commitment to procreate.

The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage

laws at issue are in essence unequal: Same-sex couples are

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denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial *2591 works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 2602 2605.
(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 2604-2605.

another State on the ground of its same-sex character. Pp. 2607-2608.
772 F.3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C.J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. AUTO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
Attorneys and Law Firms
Mary L Bonauto, for the petitioners.

(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding ofthe issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and
...l..e..sbians a fundamental right. Though it was eventually
repudiated, men and women suffere~ pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners' stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents' argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples' decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 2605- 2607.
(c) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in

Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave ofthe Court, supporting the petitioners.
John J. Bursch, Grand Rapids, MI, for the respondents.
Douglas Hallward-Driemeier, Washington, DC, for the petitioners.
Susan L. Sommer, M. Currey Cook, Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY, for Henry Petitioners.
*2592 James D. Esseks, Steven R. Shapiro, Joshua A. Block, Chase B. Strangio, Ria Tabacco Mar, Louise Melling, American Civil Liberties, Union Foundation, New York, NY, for ObergefeJI Petitioners.
Alphonse A. Gerl1ardstein, Counsel of Record, Jennifer L Branch, Jacklyn Gonzales Martin, Adam Gingold Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Jon W. Davidson, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Paul D. Castillo, Lambda Legal Defense a.J?.d Education Fund, Inc., Dallas, TX, Camilla B. Taylor, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Ellen Essig Katz, Greenberger & Norton, LLP, Cincinnati, OH, for Henry Petitioners.
Freda J. Levenson, Drew S. Dennis, ACLU of Ohio, Inc., Cleveland, OH, for Obergefell Petitioners.
Lisa T. Meeks, Newman & Meeks Co., LPA, Cincinnati, OH, for All Petitioners.

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Michael Dewine, Attorney General of Ohio, Eric E. Murphy, Counsel ofRecord, State Solicitor, Stephen P. Carney, Peter T. Reed, Deputy Solicitors, Columbus, OH, for Respondent.
Abby R. Rubenfeld, Rubenfeld Law Office, PC, Nashville, TN, William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, Sqenard & Roe, PLC, Nashville, TN, Maureen T. Holland, Holland & Assoc., PC, Memphis, TN, Regina M. Lambert, Knoxville, TN, Douglas HallwardDriemeier, Counsel of Record, Ropes & Gray LLP, Washington, DC, Christopher Thomas Brown, Justin G. Florence, Ropes & Gray LLP, Boston, MA, Shannon P. Minter, David C. Codell, Christopher F. Stoll, Amy Whelan, AsafOrr, National Center for Lesbian Rights, San Francisco, CA, PaulS. Kellogg, Ropes & Gray LLP, New York, NY, Samira A. Omerovic, Emerson A. Siegle, John T. Dey, Ropes & Gray LLP, Washington, DC, Joshua E. Goldstein, Ropes & Gray LLP, Boston, MA, for Valeria Tanco, et al., Petitioners.

Louisville, KY, for Gregory Bourke, et al., and Timothy Love, et al., Petitioners.
*2593 Leigh Gross Latherow, Counsel of Record, Wilham H. Jones, Jr., Gregory L. Monge, VanAntwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, KY, for Steve Beshear, in His Official Capacity as Governor of Kentucky, Respondent
Opinion
Justice KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

Herbert H. Slatery ITI, Attorney General, State of Tennessee, Joseph F. Whalen, Associate Solicitor General, Counsel of Record, Martha A. Campbell, Kevin G. Steiling, Deputy Attorneys General, Alexander S. Rieger, Assistant Attorney General, Office of the Attorney General, Nashville, TN, for William Haslam, et al., Respondents.
Kenneth M. Mogill, Mogill, Posner & Cohen, Lake Orion, MI, Dana M. Nessel, Nessel & Kessel Law, Detroit, MI, Mary L. Bonauto, Gay & Lesbian Adv~tes & Defenders, Boston, MA, Carole M. Stanyar, Coun8el of Record, Ann Arbor, MI, Robert A. Sedler, Wayne State University Law School, Detroit, MI, for April Deboer, et al., Petitioners.
Bill Schuette, Michigan Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, Ann Shennan, Assistant Solicitor General, John J. Bursch, Special Assistant Attorney General, Counsel ofRecord, Lansing, MI, for Richard Snyder, Governor, State of Michigan, in his official capacity, et al., Respondents.
James D. Esseks, Steven R. Shapiro, Joshua A. Block, Chase B. Strangio, Leslie Cooper, Louise Melling, American Civil Liberties, New York, NY, Jeffrey L. Fisher, Brian Wolfman, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, KY, Daniel J. Canon, Counsel of Record, Laura E. Landenwich, L. Joe Dunman, Clay Daniel Walton Adams, PLC, Louisville, KY, Shannon Fauver, Dawn Elliott, Fauver Law Office, PLLC,

I
These cases _come from Michigan, Kentucky, Ohio, and Tennessee, Stai:es that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, § 25; Ky. Const. § 233A; Ohio Rev.Code Ann.§ 3101.01 (Lexis 2008); Tenn. Const., Art. XI,§ 18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snvder. 772 F.3d 388 (201 4). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U.S. - -, - S.Ct. - -. - L.Ed.2d - - (2015). The first, presented by the cases

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from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second. presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union ofman and woman. This view long has been held-and continues to be held-in good faith by reasonable and sincere people here and throughout the world.

n
Before addressing the principles and precedents that govern these cases, it is appropriate to note the history ofthe subject now before the Court.
A
From their beginning to their most recent page, the annals of human history *2594 reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their rel~gions an9 offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life thatcould not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our ·most profoun,d_hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, "The frrst bond of society is marriage; next, children; and then the family." See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect-and need-for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners' cause from their perspective. Petitioner James ObergefeU, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing_a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral scl~rosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago,
ObergefeU and Arthur decided to commit to one another,
resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-
sex marriage was legal. It was difficult for Arthur to move,
and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur's death certificate. By statute, they must remain strangers even in death, a stateimposed separation Obergefell deems "hurtful for *2595 the rest of time." App. in No. 14-556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur's death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and

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abandoned by his biological mother, required around-theclock care. The next year, a baby girl with special needsjoined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.

the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians ofMarriage et al. as Amici Curiae 16-19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. *2596 Hartog, Man & Wife in America: A History (2000).

Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Mghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time

These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic ofa Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.

This dynamic can be seen in the Nation's experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nat~ons, a_belief often embodied in the criminal law. For this reason, mtong others,

The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses' memory, joined by its bond.

many persons did not deem homosexuals to hav_e dignity in their own distinct identity. A truthful declaration by same-
sex couples of what was in their hearts had to remain
unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period

after World War IT, the argument that gays and lesbians had

a just claim to dignity was in conflict with both law and

B

widespread social conventions. Same-sex intimacy remained

a crime in many States. Gays and lesbians were prohibited

The ancient origins of marriage confirm its centrality, but from most government employment, barred from military

it has not stood in isolation from developments in law and service, excluded under immigration laws, targeted by police,

society. The history ofmarriage is one ofboth continuity and and burdened in their rights to associate. See Brief for

change. That institution-even as confmed to opposite-sex Organization ofAmerican Historians as Amicus Curiae 5-28.

relations--has evolved over time.

For much of the 20th century, moreover, homosexuality

For example, marriage was once viewed as an arrangement by was treated as an illness. When the American Psychiatric

the couple's parents based on political, religious, and financial Association published the first Diagnostic and Statistical

concerns; but by the time of the Nation's founding it was Manual of Mental Disorders in 1952, homosexuality was

understood to be a voluntary contract between a man and a classified as a mental disorder, a position adhered to until

woman. SeeN. Cott, Public Vows: A History of Marriage 1973. See Position Statement on Homosexuality and Civil

and the Nation 9-17 (2000); S. Coontz, Marriage, A History Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in

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15-16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine

more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of

of coverture, a married man and woman were treated by

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human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7-17.
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.

States granted marriage rights to same-sex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United States "· Windsor. 570 U.S. - -. 133 S.Ct. 2675. 186 L.Ed.2d 808 (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples "who wanted to affirm their commitment to one another before their children, their family, their friends, and their community." Id . at - -. 133 S.Ct., at 2689.

This Court first gave detailed consideration to the legal status

of homosexuals in Bowers v. Hardwick. 478 U.S. 186, 106

S.Ct. 2841, 92 L.Ed.2d 140 (1986). There it upheld the

constitutionality of a Georgia law deemed to criminalize

certain homosexual acts. Ten years later, in Romer v.

Evans, 517 U.S. 620, ll6 S.C't. 1620, 134 L.Ed.2d 855

( 1996), the Court invalidated an amendment to Colorado's

Constitution that sought to foreclose any branch or political

subdivision of the State from protecting persons against

discrimination based on sexual orientation. Then, in 2003,

the Court overruled Bowers, holding that laws making ~e­

sex intimacy a crime "demei [n] the lives of homose:XUal

persons." Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct.

2472, 156 L.Ed.2d 508.

-

Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii's law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to *2597 strict scrutiny under the Hawaii Constitution. Baehr v. Lewin. 74 Haw. 530, 852 P.2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (OOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as "only a legal union between one man and one woman as husband and wife." I U.S.C. § 7.

The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State's Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department ofPublic Health, 440 Mass. 309, 798 N .E.2d 941 (2003). After that ruling, some additional

Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for · Equal Protection v. Bruning, 455 F.3d 859, 864-868 (C.A.8 2006), the Courts ofAppeals have held that excluding samesex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage--and most of them, too, have concluded same-sex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).
m
[I] Under the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property, without due process of law." The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147- 149, 88 S.Ct 1444, 20 L.Ed.2d 491 (1968). In addition these liberties extend to

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certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., *2598 Eisenstadt v. Baird.

e.g., ML.B. v. S.L.J.. 519U.S. 102, ll6, 117 S.Ct. 555,136 L.Ed.2d 473 (1996); Cleveland Bd of Ed. v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974);

405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 484-486, 85 S.Ct.

Griswold, supra, at 486, 85 S.Ct. 1678; Skinner v. Oklahoma ex ref. Williamson, 316 U .S. 535, 541, 62 S.Ct. Ill 0, 86 L.Ed.

1678, 14 L.Ed.2d 510 (1965).

1655 (1942); Meyerv. Nebraska, 262 U .S. 390,399,43 S.Ct.

625, 67 L.Ed. 1042 (1923).

[2) [3] The identification and protection of fundamental

rights is an enduring part of the judicial duty to interpret It cannot be denied that this Court's cases describing the

the Constitution. That responsibility, however, "has not been reduced to any formula." Poe v. Ullman, 367 U .S. 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in

right to marry presumed a relationship involving oppositesex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U.S. 810,

identifying interests of the person so fundamental that the 93 S.Ct. 37, 34 L.Ed.2d 65, a one-line summary decision

State must accord them its respect. See ibid That process is guided by many of the same considerations relevant to

issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.

analysis of other constitutional provisions that set forth broad

principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its

Still, there are other, more instructive precedents. This Court's cases have expressed constitutional principles of broader

outer boundaries. See Lawrence. supra, at 572, 123 S.Ct. 2472. That method respects our history and learns from it

reach. In defining the right to marry these cases have identified essential attributes of that right based in history,

without allowing the past alone to rule the present.

tradition, and other constitutional liberties inherent in this

intimate bond. See, e.g., *2599 Lawrence. 539 U.S., at

[4) Tht: nature of injustice is that we may not always see it in 574, 123 S.Ct. 2472; Turner, supra, at 95, 107 S.Ct. 2254;

our own times. The generations that wrote and ratified the Bill of RightS and the Fourteenth Amendment did not presume to

Zablocki, supra, at 384, 98 S.Ct. 673; Loving, supra, at 12,
87 S.Ct. 18 I7; Griswold, supra, at 486, 85 S.Ct. !678. And

know the extent of freedom in all of its dimensions, and so in assessing whether the force and rationale of its cases apply

they entrusted to future generations a charter protecting the to same-sex couples, the Court must respect the basic reasons

right of all persons to enjoy liberty as we learn its meaning. why the right to marry has been long protected. See, e.g.,

Wberi new insight reveals discord between the Constitution's Eisenstadt, supra, at 453-454, 9~ S.Ct. 1029; Poe, supra. at

central protections and a received legal stricture, a claim to 542--553, 81 S.Ct . 1752 (Harlan, J., dissenting).

liberty must be addressed.

This analysis compels the conclusion that same-sex couples [5] [6) Applying these established tenets, the Court has may exercise the right to marry. The four principles and

long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U.S. I, 12, 87 S.Ct. 1817, 18

traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with

L.Ed.2d 1010 (1 967), which invalidated bans on interracial equal force to same-sex couples.

unions, a unanimous Court held marriage is ''one of the vital

personal rights essential to the orderly pursuit of happiness [7] A first premise of the Court's relevant precedents is that

by free men." The Court reaffirmed that holding in Zablocki the right to personal choice regarding marriage is inherent in

v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673 , 54 L.Ed.2d 6!8 the concept of individual autonomy. This abiding connection

( 1978), which held the right to marry was burdened by a law between marriage and liberty is why Loving invalidated

prohibiting fathers who were behind on child support from interracial maniage bans under the Due Process Clause. See

marrying. The Court again applied this principle in Turner v. S~fley, 482 U.S. 78, 95, 107 S.Ct. 2254,96 L.Ed.2d64(1987),

388 U.S.• at 12, 87 S.Ct. 181 7; see also Zablocki. supra, at 384, 98 S.Ct. 673 (observing Loving held "the right to

which held the right to marry was abridged by regulations marry is of fundamental importance for all individuals").

limiting the privilege of prison inmates to marry. Over time Like choices concerning contraception, family relationships,

and in other contexts, the Court has reiterated that the right procreation, and childrearing, all of which are protected by

to marry is fundamental under the Due Process Clause. See, the Constitution, decisions concerning marriage are among

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the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. Indeed, the Court has noted it

The right to marry thus dignifies couples who "wish to define themselves by their commitment to each other." Windsor,

would be contradictory "to recognize a right of privacy with supra, at - - , 133 S.Ct., at 2689. Marriage responds to the

respect to other matters of family life and not with respect to universal fear that a lonely person might call out only to

the decision to enter the relationship that is the foundation of fmd no one there. It offers the hope of companionship and

the family in our society." Zablocki, supra, at 386, 98 S.Ct. understanding and assurance that while both still live there

673.

will be someone to care for the other.

Choices about marriage shape an individual's destiny. As the Supreme Judicial Court of Massachusetts has explained, because "it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil ~age is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of selfdefinition." Goodridge, 440 Mass., at 322, 798 N.E.2d, at 955.

[10] As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act And it acknowledged that "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." 539 U.S., at 567, 123 S.Ct. 2472. But while Lawrence confirmed a dimension

(8] The nature of marriage is that, through its enduring bond. two persons together can frnd other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Wind~or. 570

of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise ofliberty.

U.S., at - -. 133 S.Ct., at 2693-2695. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12, 87 S.Ct. 1817 ("[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State").

[11] A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights ofchUdrearing, procreation, and education. See Pierce v. Society ofSisters, 268 U.S. 510,45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer, 262 U.S., at 399, 43 S.Ct. 625. The Court has recognized these connections

[9] A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U.S., at 485, 85 S.Ct. 1678. Suggesting that marriage is a right "older than the Bill ofRights," Griswold described marriage this way:

by describing the varied rights as a unified whole: "(T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Zablocki, 434 U.S., at 384, 98 S.Ct. 673 (quoting Meyer. supra, at 399, 43 S.Ct. 625). Under the laws of the several States, some of marriage's protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents' relationship, marriage allows children "to

''Marriage is a corning together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose *2600 as any involved

understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor. supra, at - -, 133 S.Ct., at 26942695. Marriage also affords the permanency and stability important to children's best interests. See Brieffor Scholars of the Constitutional Rights of Children as Amici Curiae 22-27.

in our prior decisions." Id. , at 486, 85 S.Ct. 1678.

As all parties agree, many same-sex couples provide loving

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95- 96, 107 S.Ct. 2254.

and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted

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and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs ofbeing raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue *2601 here thus harm and humiliate the children of same-sex couples. See Windsor. supra, at - -, 133 S.Ct., at 2694-2695.
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a ~alid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, ofwhich childbearing is only one.

For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects ofmarital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmak:ing authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign fmance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6-9; Brief for American Bar Association as Amicus Curiae 8-29. Valid marriage under state law is also a significant status for over a thousand provisions offederallaw. See Windsor. 570 U.S. , at - - - - - , 133 S.Ct., at 2690--2691. The States have contributed to the fundamental character ofthe marriage right by placing that institution at the center of so many facets of the legal and social order.

Fourth and fmally, this Court's cases and the Nation's traditions make clear that marriage is a keystone ofour social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
"There is certainly no country in the world where the tie of marriage is so much respected as in America ... [W]hen the American retires from the turmoil of public life to the bosom ofhis family, he fmds in it the image of order and of peace.... [H]e afterwards carries [that image] with him into public affairs." I Democracy in America 309 (H. Reeve transl., rev. ed. 1990).
InMaynardv.Hi/1. l25U.S.l90,211,8S.Ct. 723,31 L.Ed. 654 (I 888), the Court echoed de Tocqueville, explaining that marriage is "the foundation of the family and of society, without which there would be neither civilization nor progress." Marriage, the Maynard Court said, has long been " 'a great public institution, giving character to our whole civil polity.'" Id., at 213, 8 S.Ct. 723. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.

There is no difference between same- and opposite-Sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation ofbenefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes *2602 marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in imP,ortant respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes ofmarriage and seek fulfilhnent in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to many is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.

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Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U.S. 702,721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), which called for a" 'careful description' "of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent ''right to same-sex marriage." Brief for Respondent in No. 14-556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with

[13] The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection ofthe laws. The Due Process Clause and the Equal Protection *2603 Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning

central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving

and reach of the. other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identifica.tion and definition ofthe right. See ML.B., 519 U .S., at 120-121, 117 S.Ct. 555; id., at 128-

did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a ''right of fathers with unpaid child support duties to marry." Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a

129, 117 S.Ct. 555 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U.S. 660, 665. 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). This interrelation of the two principles furthers our understanding of what freedom is and must become.

sufficient justification for excluding the relevant class from

the right. See also Glucksherg, 521 U.S., at 752-773, I 17 S.Ct. 2258 (Souter, J., concurring in judgment); id.. at 789-

The Court's cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition

792, I I 7 S.Ct. 2258 (BREYER, J., concurring in judgments). on interracial marriage under both the Equal Protection

[12) That principle applies here. If rights were defined by who exercised them in the past, then received practices could

Clause and the Due Process Glause. The Court first declared the prohibition invalid becawie of its unequal treatment of interracial couples. It stated: "There can be no doubt that

serve as their own continued justification and new groups could not invoke rights once denied. This Court has ~:ejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving, 388 U .S., at 12. 87

restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 388 l).S., at 12, 87 S.Ct. 1817. With this link to equal protection the Court proceeded to hold the

S.Ct. 1817; Lawre11ce. 539 U. S., at 566-567. 123 S.Ct. 2472. prohibition offended central precepts ofliberty: "To deny this

The right to marry is fundamental as a matter of history and

fundamental freedom on so unsupportable a basis as the racial classifications embodied in th~se statutes, classifications so

tradition, but rights come not from ancient sources alone. directly subversive of the principle of equality at the heart of

They rise, too, from a better informed understanding of how constitutional imperatives defme a liberty that remains urgent in our own era. Many who deem same-sex marriage

the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." Ibid. The reasons why marriage is a fundamental right became more

to be wrong reach that conclusion based on decent and clear and compelling from a full awareness and understanding

honorable religious or philosophical premises, and neither ofthe hurt that resulted from laws barring interracial unions.

they nor their beliefs are disparaged here. But when that

sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur

The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection

of the State itself on an exclusion that soon demeans or Clause as its basis for invalidating the challenged law,

stigmatizes those whose own liberty is then denied. Under which, as already noted, barred fathers who were behind

the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would

on child-support payments from marrying without judicial approval. The equal protection analysis depended in central

(

disparage their choices and diminish their personhood to deny them this right.

part on the Court's holding that the law burdened a right "of fundamental importance." 434 U.S., at 383, 98 S.Ct. 673. It

was the essential nature of the marriage right, discussed at

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length in Zablocki, see id. , at 383-387, 98 S.Ct. 673, that made apparent the law's incompatibility with requirements of equality. Each concept-liberty and equal protection-leads to a stronger understanding of the other.

at 446-454, 92 S.Ct. 1029. And in Skinner v. Oklahoma ex rei. Williamson, the Court invalidated under both principles a law that allowed sterilization of habitual criminals. See 316 U.S. , at 538-543, 62 S.Ct. 1110.

[14] Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970's and 1980's. Notwithstanding the gradual erosion of the doctrine of coverture, see supra, at 2595, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, 0 .T. 1971, No. 704, pp. 69-88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These

In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment ofgays and lesbians. See539 U.S., at 575, 123 S.Ct. 2472. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights ofgays and lesbians, holding the State "cannot demean their existence or control their destiny by making their private sexual conduct a crime." ld.. at 578, 123 S.Ct. 2472.

classifications denied the equal dignity of men and women.

One State's law, for example, provided in 1971 that '<the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her *2604 separately, either for her own protection, or for her benefit." Ga.Code Ann. § 53-501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981); Wengler v. Druggists Mut. Ins. Co.. 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980);
v. Califano Westcott. 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d
382 (1979); Orr v. On·. 440 U.S. 268, 99 S.Ct. 1102. 59 L.Ed.2d 306 (1979); Ca!ifi:mo v. Goldfarb. 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 ( 1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43

This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of samesex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: samesex couples are denied all. the benefits afforded to oppositesex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval oftheir relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to many. See, e.g. , Zablocki, supra, at 383-388, 98 S.Ct. 673; Skinner. 316 U .S., at 541. 62 S.Ct. 1110.

L.Ed.2d 514 (1975); Frontiero v. Richard~on, 411 U.S. 677,

93 S.Ct. I 764, 36 L.Ed.2d 583 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution ofmarriage, vindicating precepts ofliberty and equality under the Constitution.

[15] These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the samesex may not be deprived of that right and that liberty. The

Other cases confirm this relation between liberty and equality. In ML.B. v. S.L.J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U.S., at 119-124, 117 S.Ct. 555. In Eisenstadt v. Baird, the Court invoked both principles to

Court now holds that *2605 same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

invalidate a prohibition on the distribution of contraceptives

to unmarried persons but not married persons. See 405 U.S.,

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of persons are violated, ''the Constitution requires redress

IV

by the courts," notwithstanding the more general value of

democratic decisionmaking. !d. , at--, 134 S.Ct, at 1637.

There may be an initial inclination in these cases to proceed This holds true even when protecting individual rights affects

with caution-to await further legislation, litigation, and issues of the utmost importance and sensitivity.

debate. The respondents warn there has been insufficient

democratic discourse before deciding an issue so basic as the [18] [19] (20] The dynamic of our constitutional system

definition of marriage. In its ruling on the cases now before is that individuals need not await legislative action before

this Court, the majority opinion for the Court of Appeals asserting a fundamental right. The Nation's courts are open

made a cogent argument that it would be appropriate for to injured individuals who come to them to vindicate their

the respondents' States to await further public discussion and own direct, personal stake in our basic charter. An individual

political measures before licensing same-sex marriages. See can invoke a right to constitutional protection when he or

DeBoer. 772 F.3d, at 409.

she is harmed, even if the broader public disagrees and

even if the legislature refuses to act. The idea of *2606

Yet there has been far more deliberation than this argument the Constitution "was to withdraw certain subjects from the

acknowledges. There have been referenda, legislative vicissitudes of political controversy, to place them beyond

debates, and grassroots campaigns, as well as countless the reach of majorities and officials and to establish them as

studies, papers, books, and other popular and scholarly legal principles to be applied by the courts." West Virginia

writings. There has been extensive litigation in state and Bd. of Ed. v. Bamefte. 319 U.S. 624, 638, 63 S.Ct. 1178

federal courts. See Appendix A, infra. Judicial opinions 87 L.Ed. 1628 (1943). This is why "fundamental rights may

addressing the issue have been informed by the contentions not be submitted to a vote; they depend on the outcome of

of parties and counsel, which, in turn, reflect the more no elections." Ibid. It is of no moment whether advocates

general, societal discussion of same-sex marriage and its of same-sex marriage now enjoy or lack momentum in the

meaning that has occurred over the past decades. As democratic process. The issue before the Court here is the

more than 100 amici make clear in their filings, many legal question whether the Constitution protects the right of

of the central institutions in American life-state and same-sex couples to marry.

local governments, the military, large and small businesses,

labor unions, religious organizations, law enforcement, civic This is not the first time the Court has been asked to adopt a

groups, professional organizations, and universities-have cautious approach to recognizing and protecting fundamental

devoted substantial attention to the question. lbis has led to rights. In Bowers, a bare majority upheld a law crimina).izing

an enhanced understanding of the issue--an understanding same-sex intimacy. See 478 U.S. , at 186, 190- 195, 106

reflected in the arguments now presented for resolution as a S.C1. 2841. That approach might have been viewed as a

matter of constitutional1aw.

cautious endorsement of the democratic process, which had

only just begun to consider the rights of gays and lesbians.

[16] (17] Of course, the Constitution contemplates that Yet, in effect, Bowers upheld state action that denied gays

democracy is the appropriate process for change, so long as and lesbians a fundamental right and caused them pain and

that process does not abridge fundamental rights. Last Term, humiliation. As evidenced by the dissents in that case, the

a plurality of this Court reaffirmed the importance of the facts and principles necessary to a correct holding were

democratic principle in Schuette v. BAMN. 572 U.S. - - , known to the Bowers Court. See id , at 199, 106 S.Ct. 2841

134 S.Ct. 1623, 188 L.Ed.2d 613 (2014), noting the "right (Blackmun, J.,joined by Brennan, Marshall, and Stevens, JJ.,

of citizens to debate so they can learn and decide and then, dissenting); id. . at 214. 106 S.Ct. 2841 (Stevens, J., joined by

through the political process, act in concert to try to shape the Brennan and Marshall, JJ., dissenting). That is why Lawrence

course of their own times." Id . at - - - - - , l34 S.Ct.. at held Bowers was "not correct when it was decided." 539

1636--1637. Indeed, it is most often through democracy that ll.S., at 578, 123 S.Ct. 2472. AlthoughBowerswaseventually

liberty is preserved and protected in our lives. But as Schuette repudiated in Lawrence, men and women were harmed in the

also said, "[t]he freedom secured by the Constitution consists, interim, and the substantial effects of these injuries no doubt

in one ofits essential dimensions, ofthe right ofthe individual lingered long after Bowers was overruled. Dignitary wounds

not to be injured by the unlawful exercise of governmental cannot always be healed with the stroke of a pen.

power." Id. . at - - , 134 S.Ct., at 1636. Thus, when the rights

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A ruling against same-sex couples would have the same effect-and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners' stories make clear

to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

the urgency of the issue they present to the Court. James

Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. ljpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners' cases, the Court has a duty to address these claims and answer these questions.

[21] Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or

Indeed, faced with a disagreement among the Courts of Appeals--a disagreement that caused impermissible geographic variation in the meaning of federal law-the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the

indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposi!e sex.

challenged laws as constitutional, it would teach the Nation

that these laws are in accord with our society's most basic

compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of

v

specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.

These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of

The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents

Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.

contend, because licensing same-sex marriage severs Being married in one State but having that valid marriage

the connection *2607 between natural procreation and denied in another is one of ''the most perplexing and

marriage. That argument, however, rests on a counterintuitive distressing complication[s]" in the law of domestic relations.

view of opposite-sex couple's decisionmaking processes Williams v. North Caroli11a. 317 U.S. 287. 299, 63 S.Ct.

regarding marriage and parenthood. Decisions about whether 207. 87 L.Ed. 279 ( 1942) (internal quotation marks omitted).

to marry and raise children are based on many personal, Leaving the current state of affairs in place would maintain

romantic, and practical considerations; and it is unrealistic and promote -instability and uncertainty. For some couples,

to conclude that an opposite-sex couple would choose not even an ordinary drive into a neighboring State to visit family

to marry simply because same-sex couples may do so. See or friends risks causing severe hardship in the event of a

Kitchen v. Herbert. 755 F.3d 1193, 1223 (C.A.lO 2014)("[I]t spouse's hospitalization while across state lines. In light of

is wholly illogical to believe that state recognition of the the fact that many States already allow same-sex marriage-

love and commitment between same-sex couples will alter and hundreds of thousands of these marriages already have

the most intimate and personal decisions of opposite-sex occurred-the disruption caused by the recognition bans is

couples"). The respondents have not shown a foundation for significant and ever-growing.

(_

the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this

[22] As counsel for the respondents acknowledged at

asserted basis for excluding same-sex couples from the right argument, if States are required by the Constitution to issue

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marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. ofOral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It *2608 follows that the Court also must hold-and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
•••
No union is more profound than marriage, for it embodies the highest ideals oflove, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea ofmarriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes ofthe law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered
Appendix A

Windsor v. United States, 699 F.3d 169 (C.A.2 2012) Massachusetts v. Department ofHealth and Human Services, 682 F.3d I (C.A.l 2012) Peny v. Brown, 671 F.3d 1052 (C.A.9 2012) Latta v. Otter, 771 F.3d 456 (C.A.9 2014) Baskin v. Bogan, 766 F.3d 648 (C.A.7 2014) Bishop v. Smith, 760 F.3d 1070 (C.A.lO 2014) Bostic v. Schaefer, 760 F. 3d 352 (C. A.4 20 14) Kitchen v. Herbert, 755 F .3d 1193 (C.A.lO 2014) DeBoer v. Snyder. 772 F.3d 388 (C.A .6 2014) Latta v. Otter. 779 F.3d 902 (C.A.9 2015) (O'Scannlain, J., dissenting from the denial ofrehearing en bane)
United States District Court Decisions Adams v. Howerton, 486 F.Supp. 1119 (C.D.Cal.l980) Citizens for Equal Protection, Inc. v. Bruning, 290 F.Supp.2d 1004 (Neb.2003)
Citizensfor Equal Protection v. Bruning, 368 F.Supp.2d 980 (Ncb.2005)
Wilwn v. Ake. 354 F.Supp.2d 1298 (M.D.Fia.2005)

APPENDICES
A
State and Federal Judicial Decisions Addressing Same-Sex Marriage
United States Courts of Appeals Decisions Adams v. Howerton. 673 F.2d 1036 (C'.A.9 1982) Smelt v. Coun~v o.fOrange, 447 F.3d 673 (C. A.9 2006)

Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D.Cal.2005)
Bishop v. Oklahoma ex rei. Edmondson, 447 F.Supp.2d 1239 (N.D.Okla.2006)
lvfassachusetts v. Department <)/Health and Human Service,,, 698 F .Supp.2d 234 (Mass.2010)
Gill v. Qffice o.fPersonnel Managemeut. 699 F.Supp.2d 374 (Mass.201 0)

(

CitizensforEqua!Protection v. Bruning, 455 F.3d 859(C.A.8 2006)

*2609 Perry v. SchwI arzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010)

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Dragovich v. Department C?f Treaswy. 764 F.Supp.2d 1178 (N.D.Cal.201 1)

Evans v. Utah, 21 F.Supp.3d 1192 (Utah 2014)

Golinski v. Office C?fPersonnel Management, 824 F.Supp.2d 968 (N.D.Cal.2012)
Dragovich v. Department of Treasury, 872 F.Supp.2d 944 (N.D.Cal.2012)

Whitewoodv. Wolf, 992 F.Supp.2d 410 (M.D.Pa.2014) Wolfv. Walker. 986 F.Supp.2d 982 (W.D.Wis.2014) Baskin v. Bogan, 12 F.Supp.3d 1144 (S.D.Ind.2014)

Windsor v. United States. 833 F. Supp.2d 394 (S.D.N.Y .2012) Love v. Beshear, 989 F.Supp.2d 536 (W.D.Ky.2014)

Pedersenv. Ojfice(?{Personnel Management, 881 F.Supp.2d 294 (C01m.2012)

Burns v. Hickenlooper. 2014 WL 3634834 (Colo.. July 23, 2014)

Jackson v. Abercrombie. 884 F.Supp.2d 1065 (Haw.2012)

Bowling v. Pence. 39 F.Supp.3d 1025 (S.D.Ind.2014)

Sevcik v. Sandoval, 911 F.Supp.2d 996 (Nev.2012)

Brenner v. Scott, 999 F.Supp.2d 1278 (N.D.Fla.2014)

Merritt v. Attorney General, 2013 WL 6044329 (M.D.La., Nov. 14, 2013)
Grayv. Orr. 4 F.Supp.3d 984 (N.D.IIl.2013)

Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D.La.2014)
General Synod ~(the United Church (?{Chris! v. Resinger. 12 F.Supp.3d 790 (W.D.N.C.2014)

0

Lee v. Orr. 2013 WL 6490577 (N.O.Tll., Dec. 10, 2013)

Kitchen v. Herbert, 961 F.Supp.2d I 181 (Utah 2013)

Hamby v. Parnell, 56 F.Supp.3d 1056 (Aiaska.~014) Fisher-Borne v. Smith. 14 F.Supp.3d 695 (M.D:N.C.2014)

ObergefeHv. Wymys/o, 962 F.Supp.2d 968 (S.D.Ohio 2013) Mqjors v. Horne, 14 F.Supp.3d 1313 (Ariz.2014)

Bishop v. United States ex rei. Holder. 962 F.Supp.2d 1252 (N.D.Okla.2014)

Connol~y v. Jeanes,- F.Supp.3d --,2014 WL 5320642 (Ariz., Oct. 17, 2014)

Bourke v. Beshear. 996 F.Supp.2d 542 (W.D.Ky.20l4)

Gu;;zo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17. 2014)

Lee v. Orr. 2014 WL 683680 (N.D.III., Feb. 21, 2014) Bostic v. Rainey. 970 F.Supp.2d 456 (E.D.Va.2014) De Leonv. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014)

Conde- Vidal v. Gorda-Padilla, 54 F.Supp.3d 157 (P.R.2014)
Marie v. Moser. 65 F.Supp.3d I 175, 2014 WL 5598128 (Kan., Nov. 4, 2014)

Tanco v. Haslam, 7 F.Supp.3d 759 (M.D.Tenn.2014)

*2610 Lawson v. Kel~v. 58 F.Supp.3d 923 (W.D.Mo.2014)

DeBoer '1'. Snyder. 973 F.Supp.2d 757 (E.D.Mich.2014) Hemv v. Himes, 14 F.Supp.3d I 036 (S.D.Ohio 2014) Latta v Otter. 19 F.Supp.3d I054 (Idaho 20 14) Geiger v. Kitzhaber. 994 F.Supp.2d 1128 (0re.2014)

McGee v. Cole. 66 F.Supp.3d 747, 2014 WL 5802665 (S.D.W Va. , Nov. 7, 2014)
Condon v. Haley, 21 F.Supp.3d 572 (S.C.2014)
Bradacs v. Haley. 58 F.Supp.3d 514 (S.C.2014)

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Rolando v. Fox, 23 F.Supp.3d 1227 (Mont.2014)
Jemigan v. Crane, 64 F.Supp.3d 1260. 2014 WL 6685391 (E.D.Ark., Nov. 25, 2014)
Campaignfor Southem Equality v. B1yant, 64 F.Supp.3d 906, 2014 WL 6680570 (S.D.Miss., Nov. 25, 2014)

Andersen v. King County, 158 Wash.2d 1. 138 P.3d 963 (2006)
Hernandez v. Robles, 7 N.Y.3d 338, 82I N.Y.S.2d 770, 855 N.E.2d I (2006)
Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007)

Inniss v. Aderhold, - F.Supp.3d - -, 2015 WL 300593 (N.D.Ga., Jan. 8, 2015)

In re Man·iage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008)

Rose11bralm v. Daugaard. 61 F.Supp.3d 862 (S.D.2015)
Caspar v. Snyder, - F.Supp.3d - -. 2015 WL 224741 (E.D.Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U.S. Dist. LEXIS 7776 (S.D.A1a.,
Jan. 23, 2015)

Ken·igan v. Commissioner ofPublic Health, 289 Conn. 135. 957 A.2d 407 (2008)
Strauss v. Horton, 46 Cal.4th 364, 93 Cai.Rptr.3d 591. 207 p .3d 48 (2009)
Vamum v. B1·ien, 763 N.W.2d 862 (Iowa 2009)

Strawser v. Strange. 44 F.Supp.3d 1206 (S.D.Ala.2015) Wate1:Y v. Ricketts, 48 F.Supp.3d 1271 (Neb.2015)
State Highest Court Decisions Baker v. Nelson, 291 Minn. 310, 191 N. W.2d 185 ( 1971) Jones v. Hallahan, 501 S. W.2d 588 (Ky.1973)

Griego v. Oliver. 20I4-NMSC-003, - N.M. - -, 316 P.3d 865 (2013)
Garden State Equali~)' v. Dow. 216 N.J. 314, 79 A.3d 1036 (2013)
Ex parte State e-X rei. Alabama Polh:v Institute, - So.3d - , 2015 WL 892752 (Ala., Mar. 3, 2015)

Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)

*2611 Appendix B

Dean v. District ofColumbia, 653 A.2d 307 (D.C.1995) Bakerv. State. 170 Vt. 194, 744 A.2d 864 (1999) Brause v. State. 21 P.3d 357 (Alaska 2001) (ripeness)

B
State Legislation and Judicial Decisions Legalizing Same-Sex Marriage

Goodridge v. Department ofPublic Health, 440 Mass. 309, 798 N.E.2d 941 (2003)
In re Opinions ofthe Justices to the Senate. 440 Mass. 120 I, 802 N.E.2d 565 (2004)
Li v. State, 338 Or. 376, IIO P.3d 91 (2005)
Cot~Whitacre v. Department of Public Health, 446 Mass. 350, 844 N.E.2d 623 (2006)
Lewis v. Harris, 188 N.J. 415,908 A.2d 196 (2006)

Legislation Del.Code Ann., Tit 13. § 129 (Cum. Supp. 2014) D.C. Act No. 18-248,57 D.C. Reg. 27 (2010) Haw.Rev.Stat. § 572 -I (2006) and (2013 Cum. Supp.) Ill. Pub. Act No. 98--597 Me.Rev.Stat. Ann., Tit. I9, § 650--A (Cum. Supp. 2014) 2012 Md. Laws p. 9 2013 Minn Laws p. 404

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2009 N.H. Laws p. 60
2011 N.Y. Laws p. 749 2013 R.I. Laws p. 7
2009 Vt. Acts & Resolves p. 33 2012 Wash. Sess. Lawsp. 199 Judicial Decisions Goodridge v. Department of Public Health. 440 Mass. 309. 798 N.E.2d 941 (2003)
Kerrigan v. Commissioner ofPublic Health, 289 Conn. 135. 957 A.2d 407 (2008)
Vamum v. Brien, 763 N .W.2d 862 (Iowa 2009)
Griego v. Oliver. 2014-NMSC-003, - N.M. - - . 3 16 P.3d 865 (2013)

its definition of marriage. And a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens-through the democratic process--to adopt their view. That *2612 ends today. Five lawyers have closed the debate and enacted their own vision ofmarriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, ma.Jdng a dramatic social change that much more difficult to accept.

Garden State Equality v. Dow. 216 N.J. 314, 79 A.3d 1036 (2013)
Chief Justice ROBERTS, with whom Justice SCALIA and Justice THOMAS join, dissenting. Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that samesex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1%1) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change

The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclai~s judicial "caution" and omits even a pretense of humility, openly relying on its desire to remake society according_to its own "new insight'' into the "nature of injustice." Ante, at 2598, 2605. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginian& and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution "is made for people of fundamentally differing views." Lochner v. New York. 198 U.S. 45, 76, 25 S.Ct. 539, 49 - L.Ed. 937 (1905) (Holmes, J., dissenting). Accordingly, "courts are not concerned with the wisdom or policy of legislation." !d. . at 69. 25 S.Ct. 539 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own "understanding ofwhat freedom is and must become." Ante, at 2603. I have no choice but to dissent.

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0

Understand well what this dissent is about: It is not about

disease, war, religious doctrine, or any other moving force of world history-and certainly not as a result of a prehistoric

whether, in my judgment, the institution of marriage should decision to exclude gays and lesbians. It arose in the nature

be changed to include same-sex couples. It is instead about of things to meet a vital need: ensuring that children are

whether, in our democratic republic, that decision should rest conceived by a mother and father committed to raising them

with the people acting through their elected representatives, in the stable conditions of a lifelong relationship. See G.

or with five lawyers who happen to hold commissions Quale, A History of Marriage Systems 2 (1988); cf. M.

authorizing them to resolve legal disputes according to law. Cicero, De Officiis 57 (W. Miller transl. 1913) ("For since

The Constitution leaves no doubt about the answer.

the reproductive instinct is by nature's gift the common

possession of all living creatures, the first bond of union is

that between husband and wife; the next, that between parents

I

and children; then we find one home, with everything in

common.").

Petitioners and their amici base their arguments on the "right to marry" and the imperative of''marriage equality." There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes ''marriage," or-more precisely-who decides what constitutes "marriage"?
The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even ifhistory and precedent are not ''the end" ofthese cases, ante, at 2594, I would not "sweep away what has so long been. settled" without showing greater respect for all that preceded us. Town of Greece v. Galloway, 572 U.S. - - , - -. 134.
S.Ct. 181 I. 1819, 188 L.Ed.2d 835 (2014).
A
As the majority acknowledges, marriage "has existed for millennia and across civilizations." Ante, at 2594. For all those millennia, across all those civilizations, ''marriage" referred to only one relationship: the union of a man and a woman. See ante, at 2594; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). *2613 As the Court explained two Terms ago, "until recent years, ... marriage between a man and a woman no doubt · had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history ofcivilization." United States v. Windsor. 570 U.S. - ·- - , - -, 133 S.Ct. 2675, 2689, 186 L.Ed.2d 808 (2013).
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery,

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child's prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good ofchildren and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond
Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, "Marriage is a socially arranged solution for the problem ofgetting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve." J.Q. Wilson, The Marriage Problem 41 (2002).
This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at ''the time of the Nation's founding [marriage] was understood to be a voluntary contract between a man and a woman." Ante, at 2595. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between ''husband and wife" as one of the "great relations in private life," and philosophers like John Locke, who described marriage as "a voluntary compact between man and woman" centered on "its chiefend, procreation" and the "nourishment and support" of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§ 78-79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of

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marriage and family ''was a given: its structure, its stability, roles, and values accepted by all." Forte, The Framers' Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).
The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with "[t]he whole subject of the domestic relations of husband and wife." *2614 Windsor. 570 U.S., at - - , 133 S.Ct., at 2691 (quoting In re Bwrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890)). There is no dispute that every State at the founding -and every State throughout our history until a dozen years ago-defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder. 772 F.3d 388, 396--399 (C.A.6 201 4). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S.W.2d 588,589 (Ky.App. 1973). The meaning of''marriage" went without saying.
Of course, many did say it. In his first American dictionary, Noah Webster defmed marriage as ''the legal union of a man and. woman for life," which served the purposes of "preventUlg the promiscuous intercourse of the sexes, ... promotin~ domestic felicity, and ... securing the maintenance and education of children." 1 An American Dictionary of the English Language (1828). An influential 19th~century treatise defined marriage as "a civil status, existing in one
man aiio one woman legally united for life for those civil and
social purposes which are based in the distinction of sex." J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition ofBlack's Law Dictionary defined marriage as "the civil status ofone man and one woman united in law for life." Black's Law Dictionary 756 ( 1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.
This Court's precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as ''the union for life of one man and one woman," Mwplr.J' v_Ramsey. 114 U.S. 15, 45,5 S.Ct. 747, 29 L.Ed. 47 (1885), which forms "the foundation of the family and of society, without which there would be neither civilization nor progress," Maynard l'. Hill. 125 U.S. 190,211,8 S.Ct. 723,31 L.Ed. 654 (1888). We later described marriage as "fundamental to our very existence and survival," an understanding that necessarily implies a procreative component. Lovingv. Virginia, 388 U.S. l , 12,87

S.Ct. 1817, 18 L.Ed.2d 1010 (1967); see Skinnerv. Oklahoma ex rei. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). More recent cases have directly connected the right to marry with the "right to procreate." Zablocki v. Redhail. 434 U.S. 374, 386, 98 S.Ct. 673, 54 L.Ed.2d 618 ( 1978).
As the majority notes, some aspects ofmarriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant's separate status. Racial restrictions on marriage, which "arose as an incident to slavery" to promote ''White Supremacy," were repealed by many States and ultimately struck down by this Court. Loving, 388 U.S., at 6--7, 87 S.Ct. 1817.
The majority observes that these developments "were not mere superficial changes" in marriage, but rather ''worked deep transformations in its structure." Ante, at 2595. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. Ifyou had asked a person on the street how marriage was .~fmed, no one would ever have said, ''Marriage is the union of a man and a woman, where the woman is subject to coverture." The majority may be right *2615 that the ''history of marriage is one of both continuity and change," but the core meaning of marriage has endured Ante, at 2595.
B
Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Buker v. Nelso11, 409 U.S. 810,93 S.C't. 37, 34 L.Ed.2d 65 (1972).
In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the

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Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States-including the four at issue hereenacted constitutional amendments formally adopting the longstanding defmition ofmarriage.
Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.

The majority purports to identify four ''principles and traditions" in this Court's due process precedents that support a fundamental right for same-sex couples to many. Ante, at 2599. In reality, however, *2616 the majority's approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45,25 S.Ct. 539,49 L.Ed. 937. Stripped of its shiny rhetorical gloss, the majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But ~ a judge, I find the majority's position indefensible as a inatter of constitutional law.

In all, voters and legislators in eleven States and the District

A

of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder ofthe States retain the traditional defmition of marriage.

Petitioners' "fundamental, right" claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States' marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after

0

Petitioners brought lawsuits contending that the Due

all, no "Companionship and U~derstanding" or ''Nobility and Digmty" Clause in the Constitution. See ante, at 2594, 2600.

Process and Equal Protection Clauses of the Fourteenth They argue instead that the laws violate a right impliedby the

Amendment compel their States to license and recognize Fourteenth Amendment's requirement that "liberty" may not

marriages between same-sex couples. In a carefully reasoned be deprived without "due process of law."

decision, the Court ofAppeals acknowledged the democratic

"momentum" in favor of "expand[ing] the definition of marriage to include gay couples," but concluded that petitioners had not made ''the case for constitutionalizing the defmition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters." 772 F.3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.

This Court has interpreted the Due Process Clause to include a "substantive" component that protects certain liberty interests against state deprivation "no matter what process is provided." Reno v. Flores. 507 U .S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The theory is that some liberties are "so rooted in the traditions and conscience ofour people as to be ranked as fundamental," and therefore cannot be deprived

without compelling justification. Snyder v. Massachusetts.

291 U.S. 97, 105, 54 S.Ct. 330,78 L.Ed. 674 (1934).

II
Petitioners first contend that the marriage laws oftheir States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. ofOral Arg. on Question I, at 38-39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.

Allowing unelected federal judges to select which unenumerated rights rank as ..fundamental"-and to strike down state laws on the basis of that determination-raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges "exercise the utmost care" in identifying implied fundamental rights, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation

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marks omitted); see Kennedy, Unenumerated Rights and the Dictates ofJudicial Restraint 13 (1986) (Address at Stanford) ("One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.").
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393, 15 LEd. 69 L (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution ofslavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law." Jd. at 450. In a dissent that has outlasted the majority opinion, Justice *2617 Curtis explained that when the "fixed rules which govern the interpretation oflaws [are] abandoned, and the theoretical opinions of individuals are allowed to control" the Constitution's meaning, "we have no longer a Constitution; we are under the government of individual men, who for the time being have power to decl~ what the Constitution is, according to their own views ofwhat it ought to mean." /d., at 621.
Dred Scott 's holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented "meddlesome interferences with the rights of the individual," and "undue interference with liberty of person and freedom of contract." 198 U.S., at 60, 61, 25 S.Ct. 539. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was "in ourjudgment, no reasonable foundation for holding this to be necessary or appropriate as a health law." Jd. at 58, 25 S.Ct. 539.

issue on which there was at least "room for debate and for an honest difference of opinion." Jd., at 72, 25 S.Ct. 539 (opinion of Harlan, J.). The majority's contrary conclusion required adopting as constitutional law "an economic theory which a large part of the country does not entertain." Id.. at 75, 25 S.Ct. 539 (opinion of Holmes, J.). As Justice Holmes memorably put it, ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," a leading work on the philosophy of Social Darwinism. Ibid The Constitution "is not intended to embody a particular economic theory.... It is made for people of fundamentally differing views, and the accident ofour finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution." lei.. at 75-76, 25 S.Ct. 539.
In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that "[t]he criterion ofconstitutionality is not whether we believe the law to be for the public good." Adkins v. Children~~ Hospital ofD.C., 261 U.S. 525, 570, 43 S.Ct. 394,67 L.Ed. 785 (1923) (opinion ofHolmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected "liberty," the Lochner line of cases left "no alternative to regarding the court as a ...
legislative chamber." J.-. Hand, The Bill of Rights 42 (1958).
Eventually, the Court recognized its error and vowed not to repeat it. "The doctrine that ... due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely," we later explained, "has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa. 372 TJ .S. 726,730, 83 S.Ct. 1028, lO L.Ed.2d 93 (1963); see Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405. 96 L.Ed. 469 (1952) (''we do not sit as a superlegislature to weigh the wisdom of legislation"). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them "unwise, improvident, or out of harmony *2618 with a particular school of thought." Williamson v. Lee Optical ofOkla.. Inc.. 348 U.S. 483, 488. 75 S.Ct. 461. 99 L.Ed. 563 (1955).

Rejecting Lochner does not require disavowing the doctrine

(

The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to

of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner 's error of

legislative concern about the health of bakery employees, an converting personal preferences into constitutional mandates,

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our modem substantive due process cases have stressed the need for 'judicial self-restraint." Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061. 117 L.Ed.2d 261 (1992). Our precedents have required that implied fundamental rights be "objectively, deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Glucksberg, 521 U.S., at720-721, 117 S.Ct. 2258 (internal quotation marks omitted).

this delicate enterprise is "continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers." Griswoldv. Connecticut. 381 U.S. 479, 501, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring in judgment).

Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in G/ucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009); Flores, 501 U.S., at 303, 113 S.Ct. 1439; United States v. Salerno, 481 U.S. 739. 751, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); see also id., at 544, 97 S.Ct. 1932 (White, J., dissenting) (''The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution."); Troxel v. Granville, 530 U.S. 57, 96-101, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (KENNEDY, J., dissenting) (consulting " '[o]ur Nation's history, legal traditions, and practices'" and concluding that "[w]e owe it to the Nation's domestic relations legal structure ... to proceed with caution" (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258)).
Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 2602. But given the few "guideposts for responsible decisionmaking in this unchartered area," Collins, 503 U.S.. at 125, 112 S.Ct. 1061, "an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula," Moore. 431 U.S., at 504, n. 12, 97 S.Ct. 1932 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of "discipline" in identifying fundamental rights, ante, at 2597 - 2598, does not provide a meaningful constraint on a judge, for ''what he is really likely to be 'discovering,' whether or not he is fully aware of it, are his own values," J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in

B
The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades *2619 of precedent and returns the Court to the unprincipled approach ofLochner.
1
The majority's driving themes are that marriage is desirable and petitioners desire it. The opinion describes the "transcendent importance" ofmarriage and repeatedly insists that petitioners do not seek to "demean," "devalue," "denigrate," or "disrespect" the institution. Ante, at 2593 - 2594, 2594, 2595, 2608. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds a9out whether samesex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners' wishes is not relevant.
When the majority turns to the law, it relies primarily on precedents discussing the fundamental "right to marry." Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct 2254, 96 L.Ed.2d 64 (1987); Zablocld, 434 U. S., at 383, 98 S.Ct. 673; see Loving, 388 U.S., at 12, 87 S.Ct. 1817. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a

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woman. The laws challenged in Zablocki and Turner did not define marriage as ''the union of a man and a woman, where neither party owes child support or is in prison." Nor did the interracial marriage ban at issue in Loving define marriage as ''the union of a man and a woman ofthe same race." See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) ("at common law there was no ban on interracial marriage"); post, at 2636 - 2637, n. 5 (THOMAS, J., dissenting). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of''rnarriage" discussed in every one of these cases ''presumed a relationship involving opposite-sex partners." Ante, at 2598.
In short, the ''right to marry" cases stand for the important
but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition ofmarriage, which is the right petitioners actually seek here. See Windmr. 570 U.S., at - - . 133 S.Ct., at 2715 (ALfTO, J., dissenting) ("What Windsor and the United States seek ... is not the protection of a deeply rooted rig~\lt the re_cognition ofa very new right."). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
2
The majority suggests that ''there are other, more instructive precedents" informing the right to marry. Ante, at 2598. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental ''right of privacy." Griswold 381 U.S., at 486.
85 S.Ct. 1678. In the first ofthose cases, the Court invalidated a criminal law that banned the use of contraceptives. !d..
at 485-486, 85 S.Ct. 1678. The Court stressed the invasive nature of the ban, *2620 which threatened the intrusion of ''the police to search the sacred precincts of marital
bedrooms." ld. at 485, 85 S.Ct. 1678. In the Court's view,
such laws infringed the right to privacy in its most basic sense: the "rightto be let alone." Eisenstadt v. Baird, 405 U.S. 438, 453-454, n. 10, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

The Court also invoked the right to privacy in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which struck down a Texas statute crirninalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting "unwarranted government intrusions" that ''touc[h] upon the most private human conduct, sexua~ behavior ... in the most private of places, the home." Id. at 562, 567, 123 S.Ct. 2472.
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is "condemned to live in loneliness" by the laws challenged in these cas.es--no one. Ante, at 2608. At the same time, the laws in no way interfere with the "right to be let alone."
The majority also relies on Justice Harlan's influential dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.l~d.2d 989 (1961). As the majority recounts, that opinion states that "[d]ue process has not been reduced to any formula." ld., at 542, 81 S.Ct. 1752. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan's opinion makes clear that courts implying"fundamental rights are not "free to roam where unguided speculation might take them." Ibid They must instead have "regard to what history teaches" and exercise not only "judgment" but "restraint." Ibid. Ofparticular relevance, Justice Harlan explained that "laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up ... form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis." Jd , at546, 81 S.Ct. 1752.
In sum, the privacy cases provide no support for the majority's position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. o.f"Social Sen>s. , 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); San Antonio

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Independent School Dist. v. Rodriguez. 411 U.S. 1, 3537, 93 S.Ct. 1278, 36 L.Ed2d 16 (1973); post, at 2635-
2637 (THOMAS, J., dissenting). Thus, although the right to
privacy recognized by our precedents certainly plays a role

S.Ct. 539 (''We do not believe in the soundness of the views which uphold this law," which "is an illegal interference with the rights of individuals ... to make contracts regarding labor upon such terms as they may think best").

in protecting the intimate conduct of same-sex couples, it

provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

The majority recognizes that today's cases do not mark "the first time the Court has been asked to adopt a cautious

approach to recognizing and protecting fundamental rights."

Ante, at 2606. On that much, we agree. The Court was

3

"asked"--and it agreed-to "adopt a cautious approach" to

implying fundamental rights after the debacle of the Lochner

Perhaps recognizing how little support it can derive from era. Today, the majority casts caution aside and revives the

precedent, the majority goes out of its way to jettison the grave errors ofthat period

"careful" approach to implied fundamental rights *2621

taken by this Court in G/ucksberg. Ante, at 2602 (quoting 521 One immediate question invited by the majority's position

U.S., at 721, 117 S.Ct. 2258). Itisrevealingthatthemajority's is whether States may retain the definition of marriage as a

position requires it to effectively overrule G/ucksberg, the union of two people. Cf. Brown v. Buhman. 947 F.Supp.2d

leading modern case setting the bounds of substantive due 1170 (Utah 20 13), appeal pending, No. 14--4117 (CAlO).

process. At least this part of the majority opinion has the Although the majority randomly inserts the adjective "two"

virtue ofcandor. Nobody could rightly accuse the majority of in various places, it offers no reason at all why the two-person

taking a careful approach.

element of the core definition of marriage may be preserved

while the man-woman element may not. Indeed, from the

Ultimately, only one precedent offers any support for the standpoint of history and tradition, a leap from opposite-sex

majority's methodology: Lochner v. New York, 198 U.S. 45, marriage to same-sex marriage is much greater than one from

25 S.Ct. 539; 49 L.Ed. 937. The majority opens its opinion a two-person union to plural unions, which have deep roots

by announcing petitioners' Jight to "define and express their in some;illtures around the world If the majority is willing

identity." Ante, at 2593. The majority later explains that "the to take the big leap, it is hard to see how it can say no to the

right to personal choice regarding marriage is inherent in shorter one.

the concept of individual autonomy." Ante, at 2599. This

freewheeling notion of individual autonomy echoes nothing It is striking how much of the majority's reasoning would

so much as "the general right of an individual to be free in apply with equal force to the claim of a fundamental right

his person and in his power to contract in relation to his to plural marriage. If"[t]here is dignity in the bond between

own labor." Lochner. 198 U.S ., at 58. 25 S.Ct. 539 (emphasis two men or two women who seek to marry and in their

added).

autonomy to make such profound choices," *2622 ante,

at 2599, why would there be any less dignity in the bond

To be fair, the majority does not suggest that its individual between three people who, in exercising their autonomy, seek

autonomy right is entirely unconstrained. The constraints it to make the profound choice to marry? If a same-sex couple

sets are precisely those that accord with its own "reasoned has the constitutional right to marry because their children

judgment," informed by its "new insight" into the ''nature of would otherwise "suffer the stigma ofknowing their families

injustice," which was invisible to all who came before but has are somehow lesser," ante, at 2600, why wouldn't the same

become clear "as we learn {the] meaning" ofliberty. Ante, at reasoning apply to a family of three or more persons raising

2597- 2598, 2598. The truth is that today's decision rests on children? If not having the opportunity to marry "serves

nothing more than the majority's own conviction that same- to disrespect and subordinate" gay and lesbian couples,

sex couples should be allowed to marry because they want to, why wouldn't the same "imposition of this disability," ante,

and that "it would disparage their choices and diminish their at 2604, serve to disrespect and subordinate people who

personhood to deny them this right." Ante, at 2602. Whatever fmd fulfillment in polyamorous relationships? See Bennett,

force that belief may have as a matter of moral philosophy, Polyamory: The Next Sexual Revolution? Newsweek, July

it has no more basis in the Constitution than did the naked 28, 2009 (estimating 500,000 polyamorous families in the

policy preferences adopted in Lochner. See 198 U.S., at 61 , 25 United States); Li, Married Lesbian "Throuple" Expecting

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First Child, N.Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L.J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But ifthere are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State "doesn't have such an ins~tution." Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution ofsame-sex marriage, either.

history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down *2623 democratically enacted laws, they do so based on something more than their own belief~. The Court today not only overlc;x>ks our country's entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the "nature of injustice is that we may not always see it in our own times." Ante, at 2598. As petitioners put it, ''times can blind." Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. "The past is never dead. It's not even past." W. Faulkner, Requiem for a Nun 92 (1951).

4

Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to inclt!de same-sex couples, the majority insists, would "pose no risk of harm to themselves or third parties." Ante, at 2607. This argument again echoes Lochner, which relied on its assessment that "we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest ofthe public is not in the slightest degree affected by such an act." 198 U.S., at 57,25 S.Ct. 539.
Then and now, this assertion of the "harm principle" sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice's commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of "due process." There is indeed a process due the people on issues of this sort-the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes's dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill's On Liberty any more than it enacts Herbert Spencer's Social Statics. See Randolph, Before Roe v. Wade : Judge Friendly's Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol'y 1035, 1036-1037, 1058 (2006). And it certainly does not enact any one concept of marriage.

m
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its disc~sion is, quite frankly, difficult to follow. The central points~ to be that there is a "synergy between" the Equal Protection Clause and the Due Process Clause, and that some prec~nts relying on one Clause have also relied on the other. Ante, at 2603. Absent from this portion ofthe opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the "modem Supreme Court's treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing." G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority's approach today is different:
"Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right." Ante, at 2603 .

The majority's understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all ofrecorded

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 2604 - 2605. Yet the majority

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fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Uti/. Dist. No. One v. Holder. 557 U .S. 193, 197, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and samesex couples is rationally related to the States' "legitimate state interest" in ''preserving the traditional institution of marriage." Lawrence, 539 U.S., at 585, 123 S.Ct. 2472 (O'Connor, J., concurring in judgment).

Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet But on the other side, there has been "extensive litigation," "many thoughtful District Court decisions," "countless studies, papers, books, and other popular and scholarly writings," and "more than I 00" amicus briefs in these cases alone. Ante, at 2597, 2597 - 2598, 2605. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning ofmarriage, based on five lawyers' "better informed understanding" of "a liberty that remains urgent in our own era." Ante, at 2602. The answer is surely there in one ofthose amicus briefs or studies.

c

It is important to note with precision which laws petitioners have challenged Although they discuss some ofthe ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners' lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial ofcertain tangible benefits. Of course, those more selective claims )Vill not arise now that the Court has taken the drastic step of requiring every State to *2624 license and recognize marriages between same-sex couples.
IV
The legitimacy ofthis Court ultimately rests ''upon the respect accorded to its judgments." Republican Party of Minn. v. White, 536 U.S. 765, 793, 122 S.Ct. 2528. 153 L.Ed.2d 694 (2002) (KENNEDY, J., concurring). That respect flows from the perception-and reality-that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority's telling, it is the courts, not the people, who are responsible for making "new dimensions of freedom ... apparent to new generations," for providing "formal discourse" on social issues, and for ensuring "neutral discussions, without scornful or disparaging commentary." Ante, at 2596-2597.
Nowhere is the majority's extravagant conception ofjudicial supremacy more evident than in its description-and dismissal-ofthe public debate regarding same-sex marriage.

Those who founded our country would not recognize the majority's conception ofthe judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after "a quite extensive discussion." Ante, at 2596. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. "Surely the Constitution does not put either the legislative branch or the executive branch in the position ofa television quiz show contestant so that when a given period oftime has elapsed and a probleni remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution." Rehnquist, The Notion of a Living Constitution. 54 Texas L. Rev . 693, 700 (1976). As a plurality of this Court explained just last year, "It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds." Schuette v. BAMN, 572 U.S. - -, - - - , 134 S.Ct. 1623, 1637. 188 L.Ed.2d 613 (2014).
The Court's accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of samesex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing *2625 course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples,

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and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are-in the tradition of our political culture-reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. "That is exactly how our system of government is supposed to work." Post, at 2627 (SCALIA, J., dissenting).
But today the Court puts a stop to all that By deciding this question under the Constitution, the Court removes it from the realm ofdemocratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, ''The political process was moving ..., not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handedjudicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade. 63 N.C. L. Rev. 375, 385- 386 (1 985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not ~efore the court or to anticipate problems that may arise from the exercise of a new right. Today's decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is--unlike the

right imagined by the majority-actually spelled out in the Constitution. Arndt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority's decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to "advocate" and "teach" their views of marriage. Ante, at 2607. The First Amendment guarantees, however, the freedom to "exercise" religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage--when, for example, a religious college provides married student *2626 housing only to oppositesex married couples, or a religious adoption ~gency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions w<>uld be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36-38. There is littlt( ·doubt that these and similar questions will soon be before ·this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today's decision is the·extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscic:nce, cannot accept same-sex marriage. Ante, at 2602 - 2603. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" oflaws codifying the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. Ante, at 2602. The majority reiterates such characterizations over and over. By the majority's account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history-in particular, the tens of millions of people who voted to reaffmn their States' enduring definition ofmarriage -have acted to "lock ... out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. Ante, at 2601 - 2602, 2602 2603, 2604, 2606. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 2642 - 2643 (ALITO, J., dissenting). Moreover,

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they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's ''better informed understanding" as bigoted Ante, at 2602.
In the face of all this, a much different view of the Court's role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy oftheir power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds ofthat history and tradition.
•••
If you are among the many Americ~f whatever sexu~ orientatim1--who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate th~ availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact--and the furthest extension one can even imagine--of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I
Until the courts put a stop to it, public debate over samesex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not
to. 1 Win or lose, advocates for both side~ continued pressing
their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work. 2

I respectfully dissent.
Justice SCALIA, with whom Justice THOMAS joins, dissenting. I join THE CIDEF JUSTICE's opinion in full. I write separately to call attention to this Court's threat to American democracy.
The substance of today's decree is not of immense personal. importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements *2627 it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences--and the public approval that conferring the name of marriage evidences--can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming

The Constitution places some constraints on self-rule-constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws "impairing the Obligation ofContracts," 3 denying "Full
Faith and Credit" to the "public Acts" of other States, 4 prohibiting the free exercise of religion, 5 abridging the freedom of speech, 6 infringing the right to keep and bear arms, 7 authorizing unreasonable searches and seizures, S and so forth. Aside from these limitations, those powers ''reserved to the States respectively, or to the people" 9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people ofthe same sex. Does it remove that issue from the political process?

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Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author *2628 of today's opinion reminded us only two years ago (in an opinion joined by the same Justices who join bini today):
"[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States." 10
"[1]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." 11 But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision --such as "due process of law" or "equal protection of the laws"-it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after rat~cation. 12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth A.mendm_ent's text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment's ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid .and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ''reasoned judgment," thinks the Fourteenth Amendment ought to protect 13 That is so because "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions...." 14 One would think that sentence would continue: "... and therefore they provided for a means by which the People could amend the Constitution," or perhaps"... and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation." But no. What logically follows, in the majority's judge-empowering

estimation, is: "and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." 15 The "we," needless to say, is the nine of us. ''History and tradition guide and discipline [our] inquiry but do not set its outer boundaries." 16 Thus, rather than focusing on the Peoples understanding of"liberty"-at the time of ratification or even today-the majority focuses on four ''principles and traditions" that, in the majority$ view, prohibit States from defining marriage as-an institution consisting of one man and one woman. 17
*2629 This is a naked judicial claim to legislativeindeed, super-legislative---power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system ofgovernment that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a crosssection of America. Take, for example, this Court, which consists of only nine men and women, all ofthem successful lawyers 18 who studied at Harvard or Yale Law School. Four of the nine are natives ofNew York City.-Eight ofthem grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even. to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans 19 ), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today's ,social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition ofmarriage. But ofcourse the Justices in today's majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

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II
But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003. ~0 They have discovered in the Fourteenth Amendment a "fundamental right" overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds--minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly-could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when *2630 that is called for by their ''reasoned judgment." These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, 21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. 22 Of course the opinion's showy profundities are often profoundly incoherent. ''The nature of marriage is that, through its enduring bond, two persons together can fmd other freedoms,
such as expression, intimacy, and spirituality." 23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can "rise ... from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own

era." 24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, "[i]n any particular case," either the Equal Protection or Due Process Clause ''may be thought to capture the essence of [a] right in a more accurate and comprehensive way," than the other, "even as the two Clauses may converge in the identification and defmition of the right." 25 (What say? What possible "essence" does substantive due process "capture" in an "accurate and comprehensive way''? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses "converge in the identification and defmition of [a] right," that is only because the majority's likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis.
*2631 Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall. The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of_the executive arm" and the States, "even for the efficacy of its judgments." 26 With each decision ofours that takes :from the People a question properly left to them-with each decision that is unabashedly based not on law, but on the "reasonedjudgment" ofa bare majority of this Court-we move one step closer to being reminded of our impotence.
Justice THOMAS, with whom Justice SCALIA joins, dissenting. The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea-captured in our Declaration ofIndependence-that

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human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
I
The majority's decision today will require States to issue marriage licenses to same-sex couples and to recognize samesex marriages entered in other States largely based on a constitutional provision guaranteeing "due process" before a person is deprived of his "life, liberty, or property." I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U.S. 742, 811-812, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMA~, J., concurring in part and concurring injudgment). It distorts the constitutional text, which guarantees only whatever "process" is "due" before a person is deprived of life, liberty, and property. U.S. Const., Arndt. 14, § 1. Worse, it invites judges to do exactly what the majority has done here--" 'roa[m] at large in the constitutional field' guided only by their personal views" as to the " 'fundamental rights' "protected by that document. PlannedParenthood ofSoutheastern Pa. ·v. Casey, 505 U.S. 833, 953, 965, 112 S.Ct. 2791, 120 L.Ed.2d 674 ( 1992) (Rehnquist, C.J., concurring in judgment in part and dissenting in part)(quoting Griswold v. Connecticut, 381 U.S. 479,502, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring in judgment)).
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue ''beyond the reach of the normal democratic process." Brief for Petitioners in No. 14-562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a "bare majority" of *2632 this Court, ante, at 2606, is able to grant this wish, wiping out with a stroke of the keyboard the results ofthe political process in over 30 States, based on a provision that guarantees only "due process" is but further evidence of the danger of substantive due process. 1

II
Even ifthe doctrine ofsubstantive due process were somehow defensible--it is not-petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all -whether under a theory of "substantive" or ''procedural" due process-a party must first identify a deprivation of"life, liberty, or property." The majority claims these state laws deprive petitioners of"liberty," but the concept of"liberty" it conjures up bears no resemblance to any plausible meaning of that word as it ~s used in the Due Process Clauses.
A
1
As used in the Due Process Clauses, "liberty'' most likely refers to "the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course oflaw." 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution's text and structure.
Both of the Constitution's Due Process Clauses reach back to Magna Carta. SeeDavidsonv. New Orleans, 96U.S. 97, lOl102. 24 L.Ed. 616 (1878). Chapter 39 of the original Magna Carta provided, ''No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land" Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version ofMagna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: ''No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment ofhis peers or by the law ofthe land." 1 E. Coke, The Second Part of the Institutes ofthe Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words ''by the law ofthe land" to mean the same thing as "by due proces of the common law." /d, at 50.

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commented, ''The conclusion is ... irresistible, that when After Magna Carta became subject to renewed interest in the same phrase was employed in *2634 the Fourteenth

the 17th century, see, e.g., ibid., William Blackstone referred Amendment [as was used in the Fifth Amendment], it was

to this provision as protecting the "absolute rights of every used in the same sense and with no greater extent." Ibid. And

Englishman." 1 Blackstone 123. And he formulated those this Court's earliest Fourteenth Amendment decisions appear

absolute rights as "the right of personal security," which to interpret the Clause as using "liberty" to mean freedom

included the right to life; ''the right of personal liberty"; from physical restraint. In Munn v. Illinois, 94 U.S. 113,

and ''the right of private property." Id., at 125. He defined 24 L.Ed. 77 (1877), for example, the Court recognized the

"the right of personal hberty" as ''the power of locomotion, relationship between the two Due Process Clauses and Magna

of changing situation, *2633 or removing one's person to Carta, see id.. at 123-124, and implicitly rejected the dissent's

whatsoever place one's own inclination may direct; without argument that " 'liberty' " encompassed "something more ...

imprisonment or restraint, unless by due course of law." !d., than mere freedom from physical restraint or the bounds of

at 125, 130. 2

a prison," id., at 142 (Field, J., dissenting). That the Court

appears to have lost its way in more recent years does not

The Framers drew heavily upon Blackstone's formulation, justify deviating from the original meaning of the Clauses.

adopting provisions in early State Constitutions that

replicated Magna Carta's language, but were modified to refer

specifically to "life, liberty, or property." 3 State decisions

2

interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word "liberty" to refer only to freedom from physical restraint. See Warren, The New "Liberty'' Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441 445 ( 1926). Even one case that has :been identified as a possible exception to that view merely used broad language

Even assuming that the "liberty" in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.

about liberty in the context of a habeas corpus proceedinga proceeding classically associated with obtaining freedom from physical restraint. Cf. id. at 444-445.

The founding-era understanding of liberty was heavily influenced by John Locke, whose writings "on natural rights and on the social and governmental contract" were cited "[i]n

In enacting the Fifth Amendment's Due Process Clause, the Framers similarly chose to employ the "life, liberty, or property" formulation, though they otherwise deviated substantially from the States' use of Magna Carta's language in the Clause. See Shattuck, The True Meaning of the Tem1 "Liberty" in Those Clauses in the Federal and State Constitutions Which Protect "Life, Liberty, and Property," 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the "liberty" protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage ofthe time when "liberty" was paired with "life" and "property." See id. . at 375. And that usage avoids rendering superfluous those protections for "life" and "property."

pamphlet after pamphlet" by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 ( 1967). Locke described men as existing in a state of nature, possessed of the "perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man." J. Locke, Second Treatise of Civil Government, § 4, p. 4 (J. Gough ed. 1947) (Locke). Because that state ofnature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See id., § 97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom "to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact

If the Fifth Amendment uses "liberty" in this narrow sense, according to the trust put in it." Id, § 22, at 13. 4

then the Fourteenth Amendment likely does as well. See

Hurtado v. California, 110 U.S. 516, 534-535, 4 S.Ct. 111, This philosophy permeated the 18th-century political scene in

28 L.Ed. 232 (1884). Indeed, this Court has previously America. A 1756 editorial in the Boston Gazette, for example,

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declared that "Liberty in the State of *2635 Nature " was the "inherent natural Right" "of each Man" ''to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of," but that, "in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may

able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

possess the Remainder without Controul." Boston Gazette

and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives

letters of the time. See 1 C. Hyneman & D. Lutz, American Political Writing During the Founding Era 1760-1805, pp. 100, 308, 385 (1983).

as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships,

The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside ofgovernment. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907,918-919 (1993). As one later commentator observed, "[L]iberty in the eighteenth century was thought of

to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents ofmarriage through private legal means, such as wills, trusts, and powers of attorney.

much more in relation to 'negative liberty'; that is, freedom

from, not freedom to, freedom from a number of social and political evils, including arbitrary government power." J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988). Or as one scholar put it in 1776, "[T]he common idea of liberty is merely negative, and is only the absence of restraint." R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government § 13, p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of "liberty," they are entitled to access privileges *2636 and benefits that exist s<;>lely because of the government. They want,-for
example, to receive the State's imprimatur on their marriages
--on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary ~nefits, including reduced inheritance taxes upon
the death ofa spouse, compensationif a spouse dies as a result

would prohibit individuals "from walking in the streets and of a work-related injury, or loss ofconsortium damages in tort

highways on certain saints days, or from being abroad after a suits. But receiving governmental recognition and benefits

certain time in the evening, or ... restrain [them] from working has nothing to do with any understanding of"liberty" that the

up and manufacturing materials of [their] own growth." Framers would have recognized.

Downer, A Discourse at the Dedication of the Tree of

Liberty, in I Hyneman, supra, at I01. Each ofthose examples involved freedoms that existed outside ofgovernment.

To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition

of liberty, it would not have included a right to governmental

recognition and benefits. Instead, it would have included a

B

right to engage in the very same activities that petitioners

have been left free to engage in-making vows, holding

Whether we define "liberty" as locomotion or freedom from religious ceremonies celebrating those vows, raising children,

governmental action more broadly, petitioners have in no way and otherwise enjoying the society of one's spouse-without

been deprived of it.

governmental interference. At the founding, such conduct

was understood to predate government, not to flow from it.

Petitioners cannot claim, under the most plausible definition As Locke had explained many years earlier, "The first society

of "liberty," that they have been imprisoned or physically was between man and wife, which gave beginning to that

restrained by the States for participating in same-sex between parents and children." Locke § 77, at 39; see also

relationships. To the contrary, they have been able to J. Wilson, Lectures on Law, in 2 Collected Works of James

cohabitate and raise their children in peace. They have been Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding

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''that to the institution of marriage the true origin of society of 'Thou shalt nots,' "Reidv. Covert, 354 U.S. 1, 9, 77 S.Ct. must be traced"). Petitioners misunderstand the institution of 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion), not 'Thou

marriage when they say that it would "mean little" absent shalt provides."

governmental recognition. Brief for Petitioners in No. 14-

556, p. 33.

Petitioners' misconception of liberty carries over into their discussion of our precedents identifying a right to many, not one of which has expanded the concept of "liberty'' beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Lovingv. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), for example, involved a couple who was criminally prosecuted for manying in the District of Columbia and cohabiting in Virginia, id., at 2-3, 87 S.Ct. 1817. 5 They *2637 were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Jd.. at 3, 87 S.Ct. 1817. 6 In a similar vein, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), involved a man who was prohibited, on pain of criminal penalty, from "many[ing] in Wisconsin or elsewhere" because of his outstanding child-support obligations, id., at 387, 98 S.Ct. 673; see id., at 377-378, 98 S.Ct. 673. And Turner v. S~fley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of·the prison, permission that could not be granted absent compelling reasons, id. . at 82, 107 S.Ct. 2254. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.
In a concession to petitioners' misconception of liberty, the majority characterizes petitioners' suit as a quest to "find ... liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex." Ante, at 2593. But "liberty" is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority's "better informed understanding of how constitutional imperatives defme ... liberty," ante, at 2602,-better informed, we must assume, than that of the people who ratified the Fourteenth Amendment-runs headlong into the reality that our Constitution is a "collection

m
The majority's inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
A
The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, "give up all the power necessary to the ends for which they unite into society, to the majority of the community," Locke § 99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., § 22, at 13; see also Hey §§ 52, 54, at 30-32. To protect that liberty from arbitrary interference, they establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government a(the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true.when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents *2638 of a State would agree. See Locke § 98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored
That process has been honored here. The defmition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14-571, pp. 1a-7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
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Aside from undermining the political processes that protect our liberty, the majority's decision threatens the religious liberty our Nation has long sought to protect.

directly correlated to the civil restraints placed upon religious practice. 7

The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 14221425 (1990). When they arrived, they created their own havens for religious practice. Ibid Many of these havens were initially homogenous communities with established religions. Ibid By the 1780's, however, "America was in the wake of a great religious revival" marked by a move toward free exercise ofreligion. !d.. at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id.. at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U.S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifYing protections for religious practice. See, e.g., Religious Freedom Restoration Actof1993, 107Stat.1488,42U.S.C. §2000bbetseq.;Conn. Gen.Stat. § 52-57lb (2015).

*2639 Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court's constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process--as the Constitution requires-the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority's decision shortcircuits that process, with potentially ruinous consequences for religious liberty.
IV
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advanc~ the "dignity'' of same-sex couples. Ante, at 2593 - 2594, 2599, 2606, 2608. 8 The flaw in that reasoning, of course, is that the Constitution contains no "dignity" Clause, and even if it did, the government would be incapable of bestowing dignity.

Numerous amici--even some not supporting the Stateshave cautioned the Court that its decision here will "have unavoidable and wide-rangin·g implications for religious liberty." Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. ld, at 7. Today's decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 2607. And even that gesture indicates a misunderstanding ofreligious liberty in our Nation's tradition. Religious liberty is about more than just the protection for "religious organizations and persons ... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Ibid Religious liberty is about freedom ofaction in matters ofreligion generally, and the scope ofthat liberty is

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confmed them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The majority's musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have

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no effect on the dignity of those litigants. Its rejection oflaws preserving the traditional definition of marriage can have no

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the

effect on the dignity of the people who voted for them. Its Court has held that "liberty" under the Due Process Clause

invalidation ofthose laws can have no effect on the dignity of should be understood to protect only those rights that are

the people who continue to adhere to the traditional definition " 'deeply rooted in this Nation's history and tradition.' "

of marriage. And its disdain for the understandings of liberty Washingtonv. Glucksberg, 521 U.S. 702, 720-721 , 117S.Ct.

and dignity upon which this Nation was founded can have no 2258, 138 L.Ed.2d 772 (1997). And it is beyond dispute that

effect on the dignity of Americans who continue to believe the right to same-sex marriage is not among those rights.

in them.

See United States v. Windsor, 570 U.S. - -, - -, 133

S.Ct. 2675, 2714-2715, 186 L.Ed.2d 808 (2013) (ALITO, J.,

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dissenting). Indeed:

Our Constitution-like the Declaration of Independence before it-was predicated on a simple truth: One's liberty, not to *2640 mention one's dignity, was something to be shielded from-not provided by-the State. Today's decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a ciause focused on "due process" to afford substantive ri¢Its, disregards the most plausible understanding of the "liberty" protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.
Justice AUTO, with whom Justice SCALIA and Justice TIIOMAS join, dissenting. · Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. 1 The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The C~nstitution leaves that question to be decided by the people·of each State.

"In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of'Public Health, 440 Mass. 309, 798 N.E.2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed samesex couples to marry until the Netherlands did so in 2000.
"What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legi!!lative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility." ld.. at - - , 133 S.Ct., at 2715 (footnote omitted).
For today's majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in *2641 the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term "liberty" in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today's majority, it has a distinctively postmodern meaning.

n
Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to samesex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides

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emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States' reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States' objectives in the same way as opposite-sex marriage.
This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. 2 This development undoubtedly is both a cause and a result of changes in our society's understanding ofmarriage.
While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to *2642 recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage's further decay. It is far beyond the outer reaches of this Court's authority to say that a State may not adhere to the understanding ofmarriage that has long prevailed, not just in

this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.
As I wrote in Windsor :
''The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage-for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage-have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
"We can expect something similar to take place if samesex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a no~-shaky institution.
"At present, no one-including social_ scientists, philosophers, and historians--can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are celtainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials." 570 U.S., at - -, 133 S.Ct. . at 2715·-2716 (dissenting opinion) (citations and footnotes omitted).
DI
Today's decision usurps the constitutional right of the people to decide whether to keep or alter the traditional

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understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and.women. E.g., ante, at 2598-2599. The implications of this analogy will be exploited by those who are determined to stamp out every vestige ofdissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 2606-2607. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses oftheir homes, but ifthey repeat *2643 those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single na~(m. If the issue of same-sex marriage had been left to the people ofthe States, it is likely that some States would recognize same-sex marriage and others would not It is also possible ~at some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But ifthat sentiment prevails, the Nation will experience bitter and lasting wounds.

Today's decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today's majority claims.
Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that
some will take from today's decision is that preaching about
the proper method of interpreting the Constitution or the virtues ofjudicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end
by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision
of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.
Most Americans-understandably-will cheer or lament today's decision because of their views on the issue of samesex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends.
All Citations
135 S.Ct. 2584, 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, l15 A.F.T.R.2d 2015-2309, 83 USLW 4592, 2015-1 USTC P 50,357, 15 Cal. Daily Op. Serv. 6817, 2015 Daily Journal D.A.R. 7322, 25 Fla. L. Weekly Fed. S 472

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the

convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 s.ct. 282, 50

LEd. 499.

1

Brief for Respondents in No. 14-571, p. 14.

2

A~rd, Schuette v. BAMN, 572 U.S. - - , - - - - - , 134 S.Ct. 1623, 1636-1637. 188 L.Ed.2d 613 (2014) (plurality

op1n1on).

3

U.S. Const., Art. I,§ 10.

4

Art. IV,§ 1.

5

Amdt.1.

6

Ibid.

7 Amdt. 2.

8

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Arndt. 10.

10 United States v. Windsor, 570 U.S.--,--, 133 S.Ct. 2675, 2691 , 186 L.Ed.2d 808 (2013) (internal quotation marks
and citation omitted).
11 /d., a t - -, 133 S.Ct., at 2691.

12 See Town of Greece v. Galloway, 572 U.S. - - , - - - - -, 134 S.Ct. 1811, 1818-1819, 188 L.Ed.2d 835 (2014). 13 Ante, at 2598.

14 Ante, at 2598.

15 Ibid.

16 Ante, at 2598.

17 Ante, at 2598 - 2602.

18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by
the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14-571 and 14-574, pp. 1-5.
19 See Pew Research Center, America's Changing Religious Landscape 4 (May 12, 2015). 20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). 21 Windsor, 570 U.S., at--, 133 S.Ct., at 2714-2715 (AUTO, J., dissenting). 22 If, even as the price to be paid for a fifth vote, I everjoined an opinion for the Court that began: "The Constitution promises
liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,"! would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
23 Ante, at 2599.

24 Ante, at 2602.

25 Ibid.

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26
1 2 3
4

:t::he Federalist No. 78, pp. 522,523 (J. Cooke ed. 1961) (A. Hamilton).
The majority states that the right it believes is "part of the iiberty promised by the Fourteenth Amendment is derived, t90, from that Amendmenfs guarantee of the equal protection of the laws." Ante, at 2602. Despite the "synergy" it finds ~between th[ese] two protections,• ante, at 2603, the majority clearly uses equal protection only to shore up its substantive dl,le process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition.
The seeds of this articulation can also be found in Henry Care's influential treatise, English Uberties. First published in America in 1721, it described the "three things, which the Law of England ... principally regards and taketh Care of," as "Life, Liberty and Estate," and described habeas corpus as the means by which one could procure one's "Uberty" from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject's Inheritance 185 (H. Care comp. 5th ed. 1721 ). Though he used the word "Uberties" by itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used "Liberty" in a narrow sense when placed alongside the words "Life" or "Estate," see, e.g., id., at 185, 200. Maryland, North Carolina, and South Carolina adopted the phrase "life, liberty, or property" in provisions otherwise tracking Magna Carta: "That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his
peers, or by the law of the land." Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions,
Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 1909); see also S.C. Const., Art. XLI (1778), in 6 id., at 3257; N.C. Const., Declaration of Rights, Art. XII (1776), in 5 id. , at 2788. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta's framework: "[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Mass. Const., pt. I, Art. XII (1780), in 3 id., at
1891; see also N.H. Const., pt. I, Art. XV (1784), in 4 id., at 2455.
Locke's theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that "natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature" and described civil liberty as that "which leaves the subject entire master of his own conduct," except as "restrained by human laws."1 Blackstone 121-122. And in a "treatise routinely cited by the Founders," Zivotofskyv. Kerry, -U.S. - - , 135 S.Ct. 2076, -L.Ed.2d - - , 2015 WL 2473281 (2015) (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, "By liberty we mean the power, which a man has to act as he thinks

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fit, where no law restrains him; it may therefore be called a mans right over his own actions." 1 T. Rutherforth, Institutes

of Natural Law 146 (1754). Rutherforth explained that "[t)he only restraint, which a mans right over his own actions is

originally under, is the obligation of governing himself by the law of nature, and the law of God,• and that "[w]hatever right

those of our own species may have ... to restrain [those actions] within certain bounds, beyond what the law of nature has

prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated

our liberty, or transferred the right of directing our actions from ourselves to them.· /d., at 147-148.

5

The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between

one man and one woman is botll offensive-and inaccurate. "America's earfiest laws against interracial sex and marriage

were spawned by slavery." P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America

19 (2009). For instance, Maryland's 16641aw prohibiting marriages between • 'freeborne English women'" and· 'Negro

Sla[v]es' "was passed as part of the very act that authorized lifelong slavery in the colony. /d., at 19-20. Virginia's

antimiscegenation laws likewise were passed in a 1691 resolution entitled "An act for suppressing outlying Slaves." Act

of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 ('IV. Haning ed. 1823) (reprint 1969) {italics deleted). "It was not until the Civil War

threw the Mure of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications

that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-

Civil War white supremacy.• Pascoe, supra, at 27-28.

Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition

of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History

and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery,

but out of a desire "to increase the likelihood that children will be bom and raised in stable and enduring family units

by both the mothers and the fathers who brought them into this world." /d.• at 8. And it has existed In civilizations

containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11-12 (explaining

that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual

relations were common in Greece at the time).

6

The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First

Amendmenfs Free Exercise Clause, as at least one amicus brief at the time pointed o.ut. Brief for John J. Russell et al.

as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12-16.

7

Concerns about threats to religious liberty in this context are not unfounded. During tJ:le hey-day of antimiscegenation

laws in this country, for instance, Virginia imposed criminal penalties on ministers who perfonned marriage in violation of

8

those laws. though their religions would have pennitted them to perfonn such ceremonies. Va.Code Ann.§ 20-60 (1960). The majority also suggests that marriage confers "nobility" on individuals. Ante, at ~594. I am unsure what that means.

People may choose to marry or not to marry. The decision to do so does not make one person more "noble• than another.

And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships

is specious.

1

I use the phrase "recognize marriage" as shorthand for issuing marriage licenses and conferring those special benefits

and obligations provided under state law for married persons.

2

See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health

Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vrtal

Statistics Reports, No. 1, p. 2 {Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf (all

Internet materials as visited June 24, 2015, and available in Clerk of Court's case file); ct. Dept. of Health and Human

Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing

Patterns of Nonmartial Childbearing in the United States, NCHS Data Brief, No. 18 {May 2009), online at http://www.

cdc.gov/nchsldata/databrief/db18.pdf.

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Case 1:14-cv-00424-CG-C Document 145 Filed 07/01/15 Page 1 of 1
l/8iaii!!E~X~H~IB~ITIIIBI•

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

0

SOUTHERN DIVISION

JAMES N. STRAWSER, et al.,

)

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official )

capacity as Attorney General for )

the State of Alabama, et al.,

)

)

)

Defendants.

ORDER

This matter is before the Court on Plaintiffs' motion for clarification. (Doc. 144) in which they seek a clarification as to whether the preliminary injunction entered on May 21, 2015, (Doc. 123) is currently in effect and binding upon all probate court judges. In that preliminary injunction order the Court stated "that because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases, the above preliminary injunction is STAYED until the Supreme Court issues its ruling." (Doc. 123, p. 14 (footnote

omitted)). The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. __ (2015). Accordingly, by the language set forth in the order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Plaintiffs' motion for clarification is therefore GRANTED as set forth above. DONE and ORDERED this 1st day of July, 2015.

/sf Callie V. S. Granade UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 1 o.,fi4·~~~~­

IN THE UNITED STATES COURT OF APPEALS

EXHIBIT
I p ---

FOR THE ELEVENTH CIRCUIT

No. 15-12508-CC

JAMES N. STRAWSER, JOI-IN E. HUMPHREY, ROBERT POVILAT, ANNA LISA CARMICHAEL, KRISTY SIMMONS, et al.,

STATE OF ALABAMA, et a!.,

versus

TIM RUSSELL, in his official capacity as Probate Judge of Baldwin County, Alabama,

Plaintiffs-Appellees, Defendants,
Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Alabama

Before: TJOFLAT, I-IULL, and WILSON, Circuit Judges BY THE COURT:
Alabama Probate Judge Tim Russell appeals fi·om the following three district court orders: (1) the court's April 23, 2015 order denying Judge Russell's motion to dismiss; (2) the court's May 21, 2015 order denying Judge Russell's motion to alter or amend the order denying his motion to dismiss; and (3) the court's May 21, 2015 order granting a preliminary injunction
;

·case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 2 of 4
that requires Alabama probate judges to issue marriage licenses to same-sex couples. Judge Russell argues that he was entitled to quasi-judicial immunity due to an order of the Alabama Supreme Court enjoining all Alabama probate judges from issuing marriage licenses to same-sex couples. He also argues that the district court's preliminary injunction was improper because of the conflicting order from the Alabama Supreme Court. He also contends that he was never served with the motion for a preliminary injunction, and was not allowed an opportunity to respond to that motion.
Since the filing ofthis appeal, the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell v. Hodges, 576 U.S._, 135 S. Ct. 2584 (2015), which held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause, and that bans on same-sex marriage are unconstitutional. Therefore, the arguments supporting Judge Russell's motiof!,to dismiss are now moot. See Soliman v. United States, 296 F.3d 1237, 1242 (11th Cir. 2002). Moreover, the other arguments Judge Russell seeks to raise with respect to his motion to dismiss are not properly before this Court. See Doe v. Marshall, 622 F.2d 118, 119 (5th Cir. 1980)1 (holding that the issue of attorneys' fees does not "salvage[ ] an otherwise moot case"); S & Davis Int'l, Inc. v. Yemen, 218 F.3d 1292, 1297 (11th Cir. 2000) (holding that this Court can consider other arguments presented in a motion to dismiss only where they are '"inextricably intertwined' with an issue that is properly before this Court on interlocutory appeal"). Accordingly, to the extent that Judge Russell seeks review of the district court's April 23, 2015 order denying his motion to
1 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (lith Cir. 1981) (en bane) (adopting as binding precedent the decisions ofthe fanner Fifth Circuit handed down prior to the close of business on September 30, 1981).

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 3 of 4
dismiss and the May 21, 2015 order denying his motion to alter or amend the order denying his motion to dismiss, this appeal is DISMISSED AS MOOT. See Soliman, 296 F.3d at 1242.
Additionally, Judge Russell's assertions about not being served with the motion for a preliminary injunction are contradicted by the record. An affidavit filed with the district court certified that he was served with a summons, a copy of the amended complaint, a copy of the plaintiffs' motion for a preliminary injunction, and various other documents relating to the motion two months prior to the district court's order granting the motion. In the intervening two months, Judge Russell filed his motion 1o dismiss the complaint, \Vhich requested a preliminary injunction among other forms of relief Accordingly, in light of the record and Obergefell, the district court's May 21, 2015 order granting a preliminary injunction requiring the issuance of maniage licenses to same-sex couples is SUMMARILY AFFIRMED.

Case 1:14-cv-00424-CG-C Document 168 Filed 10/20/15 Page 4 of 4

Amy C. Nerenberg Acting Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N. W. Atlanta, Georgia 30303
October 20, 2015

Charles R. Diard Jr. U.S. District Court 113 SAINT JOSEPH ST STE 123 MOBILE, AL 36602

Appeal Number: 15-12508-CC
Case Style: James Strawser, et al v. Tim Russell District Court Docket No: 1: 14-cv-00424-CG-C

For rules and fonns visit www.cal l.uscourts.gov

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel are advised that pursuantto 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Sincerely,
AMY C. NERENBERG, Acting Clerk of Court
Reply to: Joe Caruso Phone#: (404) 335-6177
Enclosure( s)

DIS-4 Multi-purpose dismissal letter

~(2_0_1_6~) ----------------~~ _Ex__p_ar_t_e_s_ta_t_e_e_x_re_i_. _A_Ia_b_a_m_a_P_o_l_lc_y_l_n_st_it_u_te_,_-_-_s_o_.3_d_·__

aEXHIBIT

2016 WL 859009 Only the Westlaw citation is currently available.
NOT YET RELEASED FOR PUBLICATION.
Supreme Court ofAlabama.
Ex parte STATE ofAlabama ex rei. 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.
I
March 4, 2016.
ORDER
*1 IT IS ORDERED that all pending motions and petitions are DISMISSED.
WISE and BRYAN, JJ., concur.
MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur specially.
MOORE, ChiefJustice (statement ofnonrecusal).
On February 11, 2015, the State of Alabama on relation of the Alabama Policy Institute and the Alabama Citizens Action Program initiated this case by filing in this Court an "Emergency Petition for Writ of Mandamus." The petition sought a writ of mandamus "directed to each Respondent judge of probate, commanding each judge not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples."
In its statement-of-facts section the petition described the federal injunctions in Searcy v. Strange, 81 F.Supp.3d 1285 (S .D.Ala2015), and Strawser v. Strange (Civil No. 14--0424-CG-C) (S.D.Ala Jan. 26, 2015), which enjoined the Alabama Attorney General from enforcing Alabama's Sanctity of Marriage Amendment, Art. I, § 36.03, Ala. Const.l901 ("the marriage amendment"), and the Alabama

Marriage Protection Act, § 30-1- 19, Ala.Code 1975 ("the marriage act"). The petition further stated:
"On February 8, 2015, Chief Justice Roy S. Moore of the Supreme Court of Alabama entered an administrative order ruling that neither the Searcy nor the Strawser Injunction is binding on any Alabama probate judge, and prohibiting any probate judge from issuing or recognizing a marriage license which violates the Marriage Amendment or the Marriage Act."
Attached to the petition as Exhibit C was a copy of the referenced administrative order. In subsequent paragraphs the petition identified by name four respondent Alabama probate judges who allegedly were issuing marriage licenses to samesex couples "in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order." (Emphasis added.) The petition also named as respondents 63 Judge Does ''who may issue, or may have issued, marriage licenses to same-sex couples in Alabama as a result of the Searcy or Strawser Injunction, in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order."
The petition argued that the writ should issue because (1) the marriage amendment and the marriage act were consistent with the United States Constitution and (2) this Court was not bound by a federal district court's interpretation ofthe United States Constitution. Alternatively, the petition stated:
"ChiefJustice Moore's Administrative Order provides a separate basis for mandamus relief because it directly prohibits all Alabama probate judges from issuing marriage licenses to same-sex couples in violation of the Marriage Amendment and the Marriage Act. (Admin.Ord .(Ex. C) at 5.) The Administrative Order is binding on all probate judges for the reasons stated in the order. Just as mandamus is appropriate for this Court to command a lower court's compliance [with] this Court's mandate, see, e.g. , Ex parte Ins. Co. of N Am ., 523 So.2d 1064, 106869 (Ala.1988), it is appropriate for

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Ex parte State ex rei. Alabama Policy Institute,-- So.3d -- (2016)

this Court to command probate judges' compliance with the Administrative Order."
*2 Because the petition requested, as an alternative to the determination of the constitutional issues, that this Court order the enforcement ofthe administrative order, I abstained from voting on this Court's order of February 13,2015, that ordered the respondents to file answers and permitted them to file briefs. I also abstained from voting on the opinion and order of March 3, 2015, that granted the petition and ordered the named probate judges "to discontinue the issuance of marriage licenses to same-sex couples." On March 3, 2015, I explained in a note to my fellow Justices:
"I have decided to abstain from voting in this case to avoid the appearance of impropriety in light of the memorandum of February 3, 2015, and the administrative order of February 8, 2015 that I provided to Alabama probate judges in my role as administrative head of the Unified Judicial System."
I likewise have abstained from voting on subsequent orders in this case.
In Ex parte Hinton, 172 So.3d 348 (Ala.2012), Justice Shaw addressed the question whether he could sit on a case "given that it was previously before me when I was a judge on the Court of Criminal Appeals." 172 So.3d at 353. Canon 3.C.(I), Ala Canons of Jud. Ethics, states: "A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned...." Justice Shaw noted that " 'a reasonable person has a reasonable basis to question the impartiality of a judge who sits in [an appellate court] to review his own decision as a trial judge.' " 172 So.3d at 354-55 (quoting Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir.l978)). See § 12- 1- 13, Ala.Code 1975. For an analogous reason I declined to vote in this case when my administrative order was potentially under review. Compare Rexford v. Brunswick- Balke-Collender Co., 228 U.S. 339 (1913) (construing federal law and noting that an appellate judge should not pass upon "the propriety, scope, or effect of any ruling of his own made in the progress ofthe cause in the court of first instance").

Justice Shaw identified, however, an exception to the principle that a judge should not review a case in which the judge had participated below: "The principle that ajudge must recuse himself or herself in an appeal where the judge ruled in the case while a member of a lower court has been held not to apply ifthe issue on appeal is different from the issue ruled upon below." 172 So.3d at 355. In my administrative order, I addressed the issue whether probate judges in Alabama were bound by the orders in Searcy and Strange when they were not parties to those cases. This Court's order ofMarch 3, 2015, which held that the United States Constitution did not require a state to recognize same-sex marriage, mooted that issue.
The issuance of the opinion in Obergefe/1 v. Hodges, 576 U.S. - - , 135 S.Ct. 2584 (2015), on June 26, 2015, has sufficiently altered the posture of this case to cause me to reconsider my participation. The effect of Obergefe/1 on this Court's writ ofmandamus ordering that the probate judges are bound to issue marriage licenses in conformity with Alabama law is a new issue before this Court. The controlling effect of Obergefe/1 was not at issue when I earlier abstained from voting. The issue then addressed was the effect of the order of a federal district court, which I had addressed in my administrative order. In his analysis of )he recusal issue in Hinton, Justice Shaw said:
*3 ..Participation in the instant case does not involve a determination of the correctness, propriety, or appropriateness of what I did as a member of the Court of Criminal Appeals in Hinton v. State, because we are now faced with an issue that had not been decided by the trial court in the case that was before the Court of Criminal Appeals while I was serving on that court. My impartiality cannot be questioned because I am not called upon to review my prior decision...."
172 So.3d at 355. Likewise in this case, the issue now before the Court "does not involve a determination of the correctness, propriety, or appropriateness" of my administrative order.
In joining this case to consider the effect of Obergefel/, I am not sitting in review of my administrative order, nor have I made any public statement on the effect of Obergefe/1 on this Court's opinion and order of March 3, 2015. My

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2

Ex parte State ex rei. Alabama Polley Institute, -- So.3d -- (2016)

expressed views on the issue of same-sex marriage are also not disqualifying.
" 'A judge's views on matters of law and policy ordinarily are not legitimate grounds for recusal, even if such views are strongly held. After all, judges commonly come to a case with personal views on the underlying subject matter.... Far from necessarily warranting recusal, typically such views merely mark an active mind.' "
Barber v. Jefferson Cty. Racing Ass'n, Inc., 960 So.2d 599, 618 (Ala.2006) (Stuart, J., statement ofnonrecusal) (quoting United States v. Snyder, 235 F.3d 42, 48 (lst Cir.2000) (citations omitted)).
In Barber, the defendants were charged with "operating illegal gambling devices at the Birmingham Race Course." 960 So.2d at 601. They sought Justice Bolin's recusal because a voter guide for the 2004 election listed him as opposing gambling. Justice Bolin responded as follows:
"My position on that issue is consistent with the law of Alabama; gambling is illegal in this State. I also oppose other acts that violate the laws of the State of Alabama, such as murder, rape, and robbery, but my personal opposition to the above acts does not prevent me from fairly and unbiasedly participating in cases involving such acts."
Barber, 960 So.2d at 620 (Bolin, J., statement ofnonrecusal) (emphasis added). See also Barber, 960 So.2d at 618 (Stuart, J ., statement of nonrecusal) (stating that her "decision in a case [is] based on the application ofthe law to the facts in that particular case, regardless of my personal opinion").
Although I have made public comments critical of Obergefell in which I quoted extensively from the four dissenting Justices in that case, " 'a judge's expressing a viewpoint on a legal issue is generally not deemed to be disqualifying in and of itself; this is usually true without regard to where such judicial views are expressed, and even if they are expressed somewhat prematurely or harshly.' " Ex parte Ted's Game Enters., 893 So.2d 376, 392 (Ala.2004) (See, J.,

statement ofnonrecusal) (quoting Richard E. Flamm, Judicial Disqualification§ 10.7 (1996)). Most noteworthy, I have not publicly commented on the question whether this Court is bound to follow Obergefell or on the effect of Obergefell on this Court's March 3, 2015, order. 1
*4 Furthermore, my job as Chief Justice requires me to participate in every case in which I am qualified to sit.
"By establishing a Supreme Court consisting of nine Justices, Alabama law presumes that those Justices have something of value to contribute to the resolution of a case. Consequently, when a Justice recuses himself or herself unnecessarily, the recusal deprives the parties and the public of the benefit ofthe Justice's participation and the Justice fails to do the job he or she was elected to do."
Jones v. Kassouf & Co., 949 So.2d 136, 145 (Ala.2006) (Parker, J., statement of nonrecusal). Even when issues are difficult and controversial, a judge must decide. "It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants.'' Pierson v. Ray, 386 U.S. 547, 554 (1967). See also Federated Guar. Life Ins. Co. v. Bragg, 393 So.2d 1386, 13 89 (Ala.l98l )(stating that" 'it is the duty of the judge to adjudicate the decisive issues involved in the controversy ... and to make binding declarations concerning such issues, thus putting the controversy to rest' " (quoting 26 C.J.S. Declaratory Judgments§ 161 (1956))); McGough v. McGough, 47 Ala.App. 223, 226, 252 So.2d 646, 64849 (Ala.Civ.App.l970) ("If a judge is not disqualified or incompetent under statute, constitution or common law, it is his duty to sit, a duty which he cannot delegate or repudiate.").
Because it is a judge's duty to decide cases, a judge may participate in a case after initially not sitting if the issues that prompted that abstention have changed. A recent case illustrates the application of this procedure. The petition for a writ of certiorari in American Broadcasting Cos. v. Aereo, Inc., 573 U.S. - -, 134 S.Ct. 2498 (2014), according to the Supreme Court docket sheet, was filed October 11 , 2013. The Court granted the petition on January 10, 2014. The docket sheet contains a notation that Justice Alito did not participate in the decision to grant certiorari. On March 3, 2014, the Court denied a motion to intervene. The docket sheet shows that Justice Alito did not participate in that

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Ex parte State ex rei. Alabama Policy Institute,-- So.3d -- (2016)

decision either. Under the date of April 16, 2014, however, the docket sheet states: "Justice Alito is no longer recused in this case." Justice Alito participated in the oral argument on April 22 and dissented when the opinion was released on June 25. Thus, in Aereo, Justice Alito recused himself and then unrecused himself. The same scenario played out in Stoneridge Investment Partners LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008). ChiefJustice Roberts, who did not vote on the decision to grant certiorari on March 26, 2007, "unrecused" himself on September 20 in time to participate in the oral argument on October 9 and in the final decision . 2
As explained above, I abstained from voting in this case to avoid sitting in review of my own administrative order. Because that order is no longer at issue in this case, I may appropriately sit on the case to review a different issue. A federal court noted that in certain instances a trial judge who had disqualified himself "could resume direction or even decide the issues.... But the reason for resuming control should be more than a second reflection on the same facts which the trial judge considered originally disqualified him." Stringer v. United States, 233 F.2d 947, 948 n.2 (9th Cir.l956). The relevant facts in this case are not the same because my administrative order is no longer at issue, having been superseded by orders of the entire Court.
MOORE, Chief Justice (concurring specially). *5 On June 26, 2015, by a bare 5-4 majority, the United States Supreme Court declared that all states must now recognize a fundamental right to "same-sex marriage." Obergefe/1 v. Hodges, 576 U.S. - -, 135 S.Ct. 2584 (2015). Because the Alabama Supreme Court had previously issued orders in this case directing the probate judges of this State not to issue marriage licenses to couples of the same sex, the Court requested briefmg on the effect of Obergefe/1 on those orders. See Ex parte State ex rei. Alabama Policy Inst., [Ms. 1140460, March 3, March 10, & March 12, 2015] So.3d - - (Ala.2015). Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala Const.l90 1, and the Alabama Marriage Protection Act, § 301- 9, Ala.Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.
In particular, I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate

Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefel/ is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution.
I Amending the United States Constitution by Judicial Fiat
Based upon arguments of"love," "commitment," and "equal dignity" for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefe/1 majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefel/ is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution.
A. Amending the Constitution in Violation ofArticle V
In reality, the Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act. The Constitution in Article V provides the only means for amending its provisions:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part ofthis Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in threefourths thereof
*6 U.S. Const., art. V (emphasis added). The amendment process requires the ratification ofthree-quarters ofthe states, not a mere 5 out of 9 Justices on the Supreme Court. The Obergefel/ majority states that the Founders anticipated that

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Ex parte State ex rei. Alabama Policy Institute, - - So.3d -- (2016)

the Constitution might require alteration. Employing Justice Anthony Kennedy's signature rhetoric, the opinion states:
"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
576 U.S. at - - , 135 S.Ct. at 2598. I submit that our Founders knew a lot more about freedom than this passage indicates. They secured the freedoms we enjoy, not in judicial decrees of newly discovered rights, but in the Constitution and amendments thereto. That a majority of the Court may identify an "injustice" that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment.
Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it. In 1965 Justice Hugo Black, in a critique of such judicial activism, commented on the Court's discovery of a heretofore unknown constitutional right for married couples to use contraception- a right supposedly found in the "penumbra" of the Bill of Rights. He stated:
"The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat oldfashioned I must add it is good enough forme."
Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Black, J., dissenting) . In 1983, Brevard Hand, the Chief Judge of the United States District Court for the Southern District of Alabama, stated: "Amendment through judicial fiat is both unconstitutional and illegal. Amendment through judicial fiat breeds disrespect for the law, and it undennines the very basic

notion that this country is governed by laws and not by men." Jaffree v. Board of&h. Comm'rs ofMobile Cty., 554 F.Supp. 1104, 1126 (S.D.Ala.l983), rev'dJaffree v. Wallace, 705 F.2d 1526 (lith Cir.l983). George Washington warned against attempts to usurp the Article V revision process:
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument ofgood, it is the customary weapon by which free governments are destroyed."
*7 Farewell Address (September 17, 1796), 12 The Writings ofGeorge Washington 226 (Jared Sparks ed., 1838) (emphasis added).
Novel departures from the text of the Constitution by the Court are customarily accompanied by pretentious language employed to conceal the illegitimacy of its actions. Justice Scalia in his Obergefe/1 dissent refers to this abandonment of "disciplined legal reasoning" as a descent into "the mystical aphorisms of the fortune cookie." 576 U.S. at - - n.22, 135 S.Ct. at 2630 n.22. Among some of the more ostentatious phrases used in the majority opinion that might be more suitable to a romance novel are the following:
• "Marriage responds to the universal fear that a lonely person might call out only to find no one there." 576 U.S. at - - , 135 S.Ct. at 2600.
• The "hope [of homosexuals] is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions." 576 U.S. at - -, 135 S.Ct. at 2608.
• "A truthful statement by same-sex couples ofwhat was in their hearts had to remain unspoken." 576 U.S. at - - , 135 S.Ct. at 2596.
The opinion appeals more to emotion than law, reminding one of the 1974 song "Feelings" by Morris Albert, which begins: "Feelings, nothing more than feelings...." The Court's opinion speaks repeatedly of homosexuals being humiliated, demeaned, and denied "equal dignity" by a state's refusal to issue them marriage licenses. The majority seeks to invoke the grief, sorrow, and compassion associated with a Greek

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Ex parte State ex rei. Alabama Policy Institute, -- So.3d -- (2016)

tragedy. Riding a tidal wave of emotion, the ensuing tears and pathos then suffice to fertilize a new constitutional right nowhere mentioned in the Constitution itself.
Abandoning the role of interpreting the written Constitution, the majority has instead decided to become the supposed "voice" ofthe people, discerning the people's sentiments and updating the document accordingly. The function of keeping the Constitution up with the times, however, has not been delegated to the Court--or to Congress or the President; that function is reserved to the states under Article V. Alexander Hamilton stated: "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act." The Federalist No. 78, at 527- 28 (Alexander Hamilton) (Jacob E. Cooke ed., 1961 ). Obergefe/1 is a clear example of such "presumption." Consider the following quotations from the majority opinion:

as we learn its meaning must arise solely from a "solemn and authoritative act" of the people pursuant to Article V, not from judicial innovation based on a "presumption, or even knowledge, of their sentiments." The Federalist No. 78.
B. The True Meaning ofLiberty
The Obergefe/1 majority's theory of constitutional law also overlooks the reality that the purpose of law is to restrain behavior for the public good.
"[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good."

• "When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed." 576 U.S. at - -, 135 S.Ct. at 2598 (emphasis added).
• "The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest." 576 U.S. at - - , 135 S.Ct. at 2602 (emphasis added).
*8 • "[Rights] rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." 576 U.S. at - -, 135 S.Ct. at 2602 (emphasis added).
• "[N]ew insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged." 576 U.S. at - -, 135 S.Ct. at 2603 (emphasis added).
• "The generations that wrote and ratified the Bill ofRights and the Fourteenth Amendment ... entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." 576 U.S. at - -, 135 S.Ct. at 2598 (emphasis added).

Jacobson v. Massachusetts, 197 U.S. 11,26 (1905).
Throughout the majority opinion Justice Kennedy speaks of the "dignity" of marriage and blatantly asserts that "[t]here is dignity in the bond between two men or two women who seek to marry." 576 U.S. at - -, 135 S.Ct. at 2599. Historically, consummation of a marriage always involved an act ofsexual intimacy that was dignified in the eyes of the law. An act of sexual intimacy between two men or two women, by contrast, was considered "an infamous crime against nature" and a "disgrace to human nature." 4 William Blackstone, Commentaries on the Laws of England *215. Homosexuals who seek the dignity ofmarriage must first forsake the sexual habits that disqualify them from admission to that hallowed institution. Surely more dignity attaches to participation in a fundamental institution on the terms it prescribes than to an attempt to wrest its definition to serve inordinate lusts that demean its historic dignity. A "disgrace to human nature" cannot be cured by stripping the institution ofholy matrimony ofits inherent dignity and redefming it to give social approval to behaviors unsuited to its high station. Sodomy has never been and never will be an act by which a marriage can be consummated.
The Declaration of Independence identifies the source of "liberty" under the American system of government:

An updating of the Constitution based on new insights and better informed societal understandings that are now manifest

*9 "We hold these truths to be selfevident, that all men are created equal,

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that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."
The Declaration of Independence para 2 (U.S.1776). 3 "Liberty," an unalienable right, is an endowment of the Creator. ''The God who gave us life gave us liberty at the same time...." Thomas Jefferson, A Summary View of the Rights ofBritish America, at 23 ( 1774). Government exists to secure that right. Because liberty is a gift of God, it must be exercised in conformity with the laws ofnature and ofnature's God. "[T]he natural liberty of mankind ... consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature ...." 1 Blackstone, Commentaries *121 (emphasis added).

Declaration. See Romans I :25 (identifying those "[w]ho changed the truth ofGod into a lie, and worshipped and served the creature more than the Creator").
This false notion of liberty, which permeates the majority opinion in Obergefe/1, is the ultimate fallacy upon which it rests. In a world with God left out, the moral boundaries of Scripture disappear, and man's corrupt desires are given full rein. The end of this experiment in anarchic liberty is yet to be seen. The great sufferers will be the childrendeprived of either a paternal or a maternal presence-who are raised in unnatural families that contradict the created order. A political scientist states: " '[T]he traditional family, the embodiment and expression of the "laws of nature and of nature's God," as the foundation of a free society, has become merely one of many "alternative lifestyles." ... A free people who succumbs to such a teaching cannot long endure.' " Samuel H. Dresner, Can Families Survive in Pagan America? 99 (1995) (quoting Harry V. Jaffa, Homosexuality and the Natural Law 38 (1990)). As Thomas Jefferson stated:

Liberty in the American system of government is not the right to define one's own reality in defiance of the Creator. The libertarian creed ofunbridled self-definition is capsulized in Justice Kennedy's oft-quoted statement: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood ofSoutheastern Pa. v. Casey, 505 U.S. 833, 851 (1992). But the human being, as a dependent creature, is not at liberty to redefine reality; instead, as the Declaration of Independence states, a human being is bound to recognize that the rights to life, liberty, and the pursuit of happiness are endowed by God. Those rights are not subject to a redefmition that rejects the natural order God has created.

*10 "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just; that his justice cannot sleep forever .... "
"Notes on the State ofVirginia" (1787), in 8 The Writings of Thomas Jtfferson 404 (H.A. Washington ed., 1854).

"Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being." I Blackstone, Commentaries *39. Part ofthat natural order is the institution ofmarriage as the union ofa man and a woman. "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh." Genesis 2:24. The Obergefe/1 majority's false definition of marriage arises, in great part, from its false definition of liberty. Separating man from his Creator, the majority plunges the human soul into a wasteland of meaninglessness where every man defines his own anarchic reality. In that godless world nothing has meaning or consequence except as the human being desires. Man then becomes the creator of his own reality rather than a subject of the Creator of the

C. Abuse ofthe Fourteenth Amendment
The invocation of "equal dignity" to justify the invention of a heretofore unknown constitutional right is just another judicial mantra to rationalize the invalidation of state laws that offend the policy preferences of a five-person majority. The notion of "equal dignity," as this Court recently stated, "is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists." Ex parte State ex rei. Alabama Policy Institute [Ms. 1140460, March 3, 2015] - So.3d - , - (Aia.2015) ("API"). Justice Black once stated: "There is ... no express constitutional language granting judicial power to invalidate every state law of every kind deemed 'unreasonable' or

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contrary to the Court's notion of civilized decencies...." Rochin v. California, 342 U.S. 165, 176 (1952) (Black, J., concurring). In 1930, in the waning days of his judicial career, Justice Oliver Wendell Holmes expressed his alarm at the elastic qualities the Supreme Court had ascribed to the Fourteenth Amendment to satisfy the Court's desire to exercise plenary supervision over state legislation: "I cannot believe that the [Fourteenth] Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting).
As late as 1986, the United States Supreme Court specifically declared:
"There should be, therefore, great resistance to expand the substantive reach of [the Due Process Clauses of the Fifth and Fourteenth Amendments], particularly if it requires redefining the category of rights deemed to be fundamental . Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short ofovercoming this resistance."
Bowers v. Hardwick, 478 U.S. 186, 195 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . The "claimed right" ofwhich the Court spoke in Bowers was the "right" to commit sodomy. Although the Court in 1986 adamantly refused to recognize any such right in the United States Constitution, the Lawrence v. Texas opinion did just that 17 years later. Nevertheless, the Supreme Court's admonition in 1986 that expanding the substantive reach of the Fifth and Fourteenth Amendments to redefine fundamental rights like marriage would give the Court "further authority to govern the country without express constitutional authority," 478 U.S . at 195, is still true and can clearly be seen in Obergefell.
*11 The "fundamental right" to marriage the Supreme Court
has invoked in previous cases always involved the right of a man and a woman to marry. Loving v. Virginia, 388 U.S. I (1967), cited as a precedent for constitutional review of state marriage laws by the Obergefell majority, 576 U.S. at - -, 135 S.Ct. at 2598- 99, did not change this fact, but only removed a race-based barrier to participation in that institution. No one doubts that the Fourteenth Amendment

was designed to remove such civil disabilities. Equally indisputable is that the states that ratified the Fourteenth Amendment in 1868 did not remotely intend to empower the federal courts to redefine marriage to include same-sex marriage.
The majority opinion in Obergefell represents the culmination of a change in our form of government from one of three separate-but-equal branches to one in which the judicial branch now exercises the power of the legislative branch. 4 President George Washington asserted that this "spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism." Farewell Address, at 226. And thus by the weapon of judicial usurpation, free government is destroyed.
The Constitution limits the power of the federal government in order to protect the right of the people to govern themselves. See U.S. Const. amends. IX & X. 5 In his criticism of the Court's invention of a constitutional right to bring contraceptive devices into the marital chamber, Justice Potter Stewart stated:
"If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books." Griswold, 381 U.S. at 531 (Stewart, J., dissenting). The Obergefell majority, presuming to know better than the people themselves how to order the fundamental domestic institution of society, has usurped the legislative prerogatives of the people contrary to the Ninth and Tenth Amendments.
II. The Dissenters' Critique
The four dissenters in Obergefell convincingly detail the illegitimacy of the majority opinion.
A. ChiefJustice Roberts
The Chief Justice describes the pretended judicial acts of the majority as a form of theft. "Five lawyers have ... enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a

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cloud over same-sex marriage...." 576 U.S. at - - , 135 S.Ct. at 2612 (emphasis added). He states flatly: "The right [the majority] announces has no basis in the Constitution or this Court's precedent." Id He accuses the majority of"order[ing] the transformation of a social institution that has formed the basis of human society for millennia" based on "its desire to remake society according to its own 'new insight' into 'the nature of injustice.' "Jd In short, the majority acts not as a court oflaw but as a band ofsocial revolutionaries. The Chief Justice, amazed at this presumption, exclaims: "Just who do we think we are?" Jd
*12 The ChiefJustice underscores the serious consequences of acquiescence to the majority's assumption of illegitimate power. The majority, he states, "seizes for itselfa question the Constitution leaves to the people." 576 U.S. at - - , 135 S.Ct. at 2612. The real issue, he explains, "is about whether, in our democratic republic, that decision [regarding the definition of marriage] should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law." /d. He also points out that all previous decisions of the Supreme Court that treated marriage as a fundamental right rested on "the core structure of marriage as the union between a man and a woman." 576 U.S. at - -, 135 S.Ct. at 2614.
"[T]he majority's approach," states the Chief Justice, ''has no basis in principle or tradition except for the unprincipled tradition of judicial policymaking." 576 U.S. at - -, 135 S.Ct. at 2616. Thus, "the majority's position [is] indefensible as a matter of constitutional law." Jd In support of this point, the Chief Justice draws on Justice Benjamin Curtis's dissent 'in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Remonstrating against the Dred Scott majority's novel effort at enforcing a pax judicatus on the slavery issue, Justice Curtis warned that, when the " 'fixed rules which govern the interpretation of laws [are] abandone~, and the theoretical opinions of individuals are allowed to control'" the meaning of the Constitution," 'we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views ofwhat it ought to mean.' "576 U.S. at - - , 135 S.Ct. at 2617 (quotingDred Scott, 60 U.S. (19 How.) at 621).
The Chief Justice's quotation of Justice Curtis's Dred Scott dissent merits serious consideration. If acquiescence to Obergefell indicates that ''we have no longer a Constitution,"

then the legitimacy of Obergefell is subject to grave doubt. If five Justices of the Supreme Court may at will redefine the Constitution according to their own policy preferences, the mechanism of judicial review, designed originally to protect the rights of the people from runaway legislatures, has morphed into the right of five lawyers to rule the people without their consent.
By employing the Constitution as a license to create social policy for the nation, the Court, states the Chief Justice, becomes "a legislative chamber." 576 U.S. at - -, 135 S.Ct. at 2617 (quoting Learned Hand, The Bill ofRights, The Oliver Wendell Holmes Lectures, 1958 42 (1977)). Are the true legislative bodies of this country obligated to respect such a usurpation of their own prerogatives? The Chief Justice quotes Justice Byron White as follows: " 'The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.' "576 U.S. at - -, 135 S.Ct. at 2618 (quoting Moore v. City ofEast Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting)). 6 Such is the reality of the majority opinion in Obergefel/.
*13 Other concerns, states Chief Justice Roberts, appear in the wake of the majoii.ty's "freewheeling notion of individual autonomy." 576U.S. at - - , 135 S.Ct. at2621.Iftheopinion reflects no more than "naked policy preferences," id, with no basis in the Constitution, what is to restrain the Court from inventing other new "liberties" the majority may imagine? The Chief Justice sees nothing in the majority opinion that would be incompatible with the declaration ofa constitutional right to polygamy. The majority, he states, "offers no reason at all why the two-person element of the core defmition of marriage may be preserved while the man-woman element may not." 576 U.S. at - -, 135 S.Ct. at 2621. Polygamy, he notes, has more of a tradition in the world's cultures than same-sex marriage. "If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one." Jd Indeed, as the Chief Justice warns, the plenary power the majority asserts to redefine the fundamental institutions of society offers no assurance that it will not give birth to yet further attacks on the social order.
The majority ostensibly relies on the Due Process Clause of the Fourteenth Amendment to justify its mandate for an unprecedented social revolution. But, as the Chief Justice states: "The majority's understanding of due process lays out a tantalizing vision of the future for Members of this

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Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?'' 576 U.S. at - - , 135 S.Ct. at 2622. Noting that the majority's actions are "dangerous for the rule of law," id, the ChiefJustice states that by undermining respect for the Court's judgments, the majority draws into question the Court's legitimacy. Decrying ''the majority's extravagant conception of judicial supremacy," 576 U.S. at - -, 135 S.Ct. at 2624, he notes its absence of humility or restraint. "Over and over," he states, "the majority exalts the role of the judiciary in delivering social change." Id
"Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelectedjudges."
/d.
If, as the Chief Justice demonstrates, a governing majority of the Supreme Court has departed from the vision of the Founders, are the rest of us also required to depart from the founding principles of this republic? Or should we adhere to the principles of representative government--government by the people-and repudiate the judicial majority that orders otherwise? The Chief Justice emphasizes that the majority's actions have no basis in law: "Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right [to samesex marriage]. None exists...." 576 U.S. at - -, 135 S.Ct. at 2619. Contemplating the role of the Constitution in the opinion of the majority, he concludes: "It had nothing to do with it." 576 U.S. at - -, 135 S.Ct. at 2626. If, as the Chief Justice asserts, the opinion of the majority is not based on the Constitution, do state judges have any obligation to obey that ruling? Does not their first duty lie to the Constitution? Otherwise, as Justice Curtis stated in his Dred Scott dissent, ''we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views ofwhat itoughttomean." 60 U.S. (19 How.) at 621.

B. Justice Scalia
*14 Justice Scalia, who joined in full the dissent of Chief Justice Roberts, echoes the theme ofa threat to our republican form of government. He notes the demise of constitutional government in the ashes of the majority's opinion razing the institution of marriage. "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." 576 U.S. at - - , 135 S.Ct. at 2627. Justice Scalia underscores this point: "This practice of constitutional revision by an unelected committee of nine ... robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." 576 U.S. at - -, 135 S.Ct. at 2627 (emphasis added).
The opinion of the majority, he further states, "lacks even a thin veneer of law." 576 U.S. at - - , 135 S.Ct. at 2628 . Thus, "[t]he naked judicial claim to legislative-indeed, super-legislative- power [is] fundamentally at odds with our system of government," and "makes the People subordinate to a committee of nine unelected lawyers." 576 U.S. at - -, 135 S.Ct. at2629. Contending that the majority opinion lacks legal legitimacy, he terms it "a social upheaval," i.e., a social revolution. Id The right to change the form of government in this country belongs to the people themselves through the amendment process, not to judicial oligarchs. Justice Scalia describes the majority's ruling as a ·~udicial Putsch." Id A "putsch" is "a secretly plotted and suddenly executed attempt to overthrow a government." Merriam-Webster's Collegiate Dictionary I013 (IIth ed.2009). The word is most commonly associated with Adolf Hitler's 1923 attempt to seize power in Germany. Justice Scalia's use of this term underscores the revolutionary nature ofthe majority's presumptive exercise of judicial power to remake the social order.
Justice Scalia concludes that ''to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation." 576 U.S. at - -, 135 S.Ct. at 2629 (emphasis added). Justice Scalia's estimation that the majority's social revolution is a more outrageous abuse of power than the events that immediately triggered the American Revolution is very sobering. The judiciary, he states, " 'must ultimately depend upon the aid of the executive arm' and the States, 'even for the efficacy of its

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judgments.' " 576 U.S. at - - , 135 S.Ct. at 2631 (quoting The Federalist No. 78, at 522- 23 (Alexander Hamilton) (J. Cooke ed., 1961 )). He thus intimates that the refusal of the states to recognize the legitimacy of the Obergefe/1 decision, "one that is unabashedly based not on law," would be a healthy reminder of the Court's "impotence" in the face of a refusal to acquiesce to its systematic destruction of popular government. 576 U.S. at - -, 135 S.Ct. at 2631 . 7
C. Justice Thomas

and not merely to contribute to the well-being of adults. The rising rate of out-of-wedlock pregnancy has contributed to the decay of marriage by fraying the tie between marriage and procreation. 8 576 U.S. at - -, 135 S.Ct. at264l. Many states legitimately wony that abandoning the traditional definition "may contribute to marriage's further decay." 576 U.S. at - - , 135 S.Ct. at 2642. Thus, "[it] is far beyond the outer reaches of this Court's authority to say that a State may not adhere to the understanding ofmarriage that has long prevailed ... all around the globe." Jd.

*15 Justice Thomas adds his analysis to the fusillade of criticism of the majority opinion. He attacks in particular the invocation of the doctrine of "substantive due process" that allows the Court to invent new rights out of the word "liberty" in the Due Process Clause. Like Chief Justice Roberts and Justice Scalia, he sounds the alarm at this rending of the fabric of our country: "By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority." 576 U.S. at - -, 135 S.Ct. at 2631. He notes that this expansive and "imaginary" use of the Due Process Clause ''wip[es] out with a stroke of the keyboard the results of the political process in over 30 States." 576 U.S. at - -, 135 S.Ct. at 2632 and n.l. ·The entitlement to a marriage license with the accompanying government benefits, he notes, is inconsistent with the historic meaning of "liberty" as a "freedom from physical restraint." 576 U.S. at - -, 135 S.Ct. at 2633. Neither the Founders nor the authors of the Fourteenth Amendment considered that the right not to be deprived of liberty without due process of law encompassed a positive entitlement to governmental benefits. "In the American legal tradition, liberty has long been understood as individual freedom.from governmental action, not as a right to a particular governmental entitlement." 576 U.S. at - -, 135 S.Ct. at 2634. Thus, "receiving governmental recognition and benefits has nothing to do with any understanding of'liberty' that the Framers would have recognized." 576 U.S. at - - , 135 S.Ct. at 2636.
D. Justice A/ito
Justice Alito notes that the majority's definition of "liberty" has "a distinctively postmodem meaning" in which "five unelected Justices ... impos [e] their personal vision ofliberty upon the American people." 576 U.S. at - -, 135 S.Ct. at 2640. He recognizes that the fundamental purpose ofmarriage historically has been to provide for the welfare of children

Justice Alito, like the other dissenters, points out that the majority has created a constitutional right out of thin air:
" ' [T]he Constitution simply does not speak to the issue of samesex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.'
*16 576 U.S. at - -, 135 S.Ct. at 2642 (quoting United States v. Windsor. 570 U.S. - -, - -, 133 S.Ct. 2675, 2716 (2013) (Alito, J., dissenting)). In harmony with his dissenting colleagues, Justice Alito asserts that "[t]oday's decision usurps the constitutional right ofthe people to decide whether to keep or alter the traditional understanding of marriage." 576 U.S. at - -, 135 S.Ct. at 2642.
"If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate....
"Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed .... What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation."
576 U.S. at - -, 135 S.Ct. at 2643
E. Summing Up Obergefell: An Unlawful and Illegitimate Decision

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The dissenting Justices have accurately described in detail the illegitimacy of the majority's decision in Obergefe/1. Their criticisms go far beyond mere disagreement with the philosophical and public-policy arguments upon which the majority opinion relies. Instead, the dissenting Justices employ strong language and vivid metaphors to portray the seriousness of the majority's bold attack on the foundations of representative government and the collateral damage to religious liberty.
Their language is stirring and forthright:

In Griswoldv. Connecticut, 381 U.S. 479 (1965), the Court found in "penumbras, formed by emanations" from the "specific guarantees in the Bill ofRights," a right of"privacy" for married couples to use contraceptives. !d. at 484. That opinion, explained a dissenter, "prevents state legislatures from passing any law deemed by this Court to interfere with 'privacy.' "!d. at 510 n.l (Black, J. dissenting). By holding unconstitutional a law that was not forbidden by a specific provision of the Constitution, the Court quietly assumed the power to negate any state legislation ofwhich it disapproved. As Justice Black stated:

Chief Justice Roberts portrays the majority as thieves who are "stealing" the marriage issue from the people. Justice Scalia uses a similar metaphor, stating that the majority "robs the People of ... the freedom to govern themselves." These metaphors identify the essence of the majority's actions: an illegal displacement and usurpation of the democratic process. Chief Justice Roberts accuses the majority of imposing "naked policy preferences" that have "no basis in the Constitution." Accordingly, the majority's "extravagant conception of judicial supremacy" is "dangerous for the rule of law." The unmistakable theme that emerges from these critiques is lawlessness. A body whose reason for being is to apply the law has instead forsaken the law for a lawless imposition of the latest postmodem assault on the natural order. The majority are judges in name only, having in fact forsaken the judicial role to engage in "remaking society" and transforming- without legal authority- the most fundamental social institution.
Justice Scalia also emphasizes the revolutionary character of the majority's assault on the social order--elevating the "crime against nature" into the equivalent of holy matrimony. 9 This decision, "unabashedly not based on law," represents a "social upheaval" and a "judicial Putsch." Justice Alito sounds the same themes. The Court has not unwittingly tread into forbidden territory; instead, it has acted "far beyond the outer reaches" of its authority, boldly trampling the right of the people "to control their own destiny."
III. The Precursors to Obergefell
*17 For the last 50 years, the Supreme Court has consistently
misused the Fourteenth Amendment to destroy state laws that protect the marital relation and its offspring. Obergefe/1 is the latest fruit of this corrupt tree. Matthew 7:17- 18.

"[N]o provision of the Constitution ... either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear,jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have."
381 U.S. at 520-21 (Black, J., dissenting) (emphasis added).
Speaking 50 years before the issuance of the majority opinion in Obergefell, Justice Black presciently anticipated its reasoning:
"I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical

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strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes."
381 U.S. at 522. 10 Assuredly, Justice Black would not have agreed with Justice Kennedy's grandiloquent "nature-ofinjustice" passage and his invocation of the right of the Court to draw limitless new rights out of the bottomless depths of the Due Process Clause "as we learn its meaning." 11 Truly, the less basis the majority has for its innovations upon the Constitution, the grander is the language employed to justify them, as if high-blown rhetoric could compensate for the absence ofconstitutional substance.
Griswold was the first car on the illicit and unconstitutional train that led from contraception to abortion and then on to sodomy and same-sex marriage. In 1972, the Court extended the penumbral right of contraception to the unmarried, deconstructing the union of husband and wife that infused Griswold into merely "an association of two individuals." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). "If the ri~t of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S . at 453. Venturing beyond "the sacred precincts of marital bedrooms," Griswold, 381 U.S. at 485, the Court anointed with constitutional protection the use ofcontraceptive devices by the unmarried, setting its seal ofapproval upon fornication. And if anyone found the extension of Griswold to the unmarried to be less than convincing, the Court had ready at hand an additional rationale: Allowing the use of such devices by the married, but not the unmarried, violated the Equal Protection Clause. The married and the unmarried, the Court amazingly held, were "similarly situated" in regard to contraceptive use. Thus, "the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons." Eisenstadt, 405 U.S. at 454. See John Hart Ely, The Wages of Crying Wolf, A Comment on Roe v. Wade, 82 Yale L.J. 920,929 n.68 (1973) (commenting on "the Eisenstadt Court's obviously strained performance respecting the Equal Protection Clause''). 12
*18 Chief Justice Warren Burger dissented. Seeing nothing in the Fourteenth Amendment that prohibited a state from regulating the distribution ofcontraceptives, he noted that the

Court had "seriously invade[d] the constitutional prerogatives of the States" and "passed beyond the penumbras of the specific guarantees into the uncircumscribed area ofpersonal predilections." 405 U.S. at467,472 (Burger, C.J., dissenting).
In Carey v. Population Services International, 431 U.S. 678 (1977), the Court took a further step down the road of immorality by crowning with constitutional dignity not only the general provision ofcontraceptives to minors but also the requirement that they be available over the counter. Thus saith the Due Process Clause. Justice William Rehnquist mused on the likely reaction ofthose who fought the Revolutionary War to establish the Bill of Rights and the Civil War to enact the Fourteenth Amendment:
"If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment ofthe New York Legislature to the contrary, it is not difficult to imagine their reaction."
431 U.S. at 717 (Rehnquist, J., dissenting). Declining to engage in detailed analysis of the majority's patently "indefensible result," Justice Rehnquist explained that "no logic chopping can possibly make the fallacy of the result more obvious." 431 U.S. at 718.
Having served the sexual revolution in the area of contraception, the Court then made constitutional the taking of the life of an unborn child. In Roe v. Wade, 410 U.S. 113 (1973), as it did in Griswold and Eisenstadt, and later in Carey, the Court tackled the difficulty of rationalizing the creation of a new constitutional right that had no colorable basis in the Constitution. The Court ultimately asserted that the right to privacy, "whether it be founded in the Fourteenth Amendment's concept ofpersonal liberty ... or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153.

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Justice Stewart, concurring, 410 U.S. at 167- 71, suggested abandoning the effort to cobble together "right-of-privacy" emanations from the Bill of Rights and instead urged sole reliance on the word "liberty" in the Due Process Clause, an infmitely malleable term that has enabled the Court to generate custom-designed constitutional rights. Justice Rehnquist in dissent stated that Roe "partakes more ofjudicial legislation than it does of a determination of the intent of the drafters ofthe Fourteenth Amendment." 410 U.S. at 174. "To reach its result," he added, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment." Jd Justice White, writing in the companion case to Roe, agreed: "I find nothing in the language or history of the Constitution to support the Court's judgment." Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting). As one commentator observed: "What is frightening about Roe is that this super-protected right is not inferable from the language ofthe Constitution," Ely, Wages, at 935, and "is not constitutional law and gives almost no sense ofan obligation to try to be." Jd. at 947.
*19 Obergefell is but the latest example of the Court's creation of constitutional rights out of thin air in service of the immorality ofthe sexual revolution. Like Roe, Obergefell is no more than "an exercise of raw judicial power ... an improvident and extravagant exercise ofthe power ofjudicial review that the Constitution extends to this Court." Doe, 410 U.S: at 222 (White, J., dissenting).
The incorporation of the sexual revolution into the Constitution continued in Lawrence v. Texas, 539 U.S. 558 (2003), which used the Fourteenth Amendment to find a right to commit sodomy that the high court had specifically rejected only 17 years earlier in Bowers v. Hardwick, 478 U.S. 186 (1986). Citing as "authority" Griswold, Eisenstadt, Roe, and Carey--a gallery ofconstitutional absurdities-the Court stated that "our laws and traditions in the past half century" "show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Lawrence, 539 U.S. at 571- 72. 13 Thus, the Court relied on a series ofmalformed decisions to justify yet another bizarre departure from moral sanity- and all in defiance ofthe right ofthe people to govern themselves.

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Lawrence, 539 U.S. at 578- 79. Justice Kennedy unfortunately omitted the key consideration highlighted by Justice Black in his Griswold dissent: Amendments to the Constitution are the business ofthe people pursuant to Article V; they are not the business of the Court under Article III. Truth may not always be clearly seen, but the majority's reasoning should not blind us to the reality that the Court seems determined to alter this nation's organic law.
Justice Scalia, dissenting in Lawrence, criticized the Court's discovery of yet another sexual-freedom right in the Constitution: "What Texas has chosen to do is well within the range oftraditional democratic action, and its hand should not be stayed through the invention ofa brand-new 'constitutional right' by a Court that is impatient of democratic change." 539 U.S. at 603 (Scalia, J., dissenting). He also exposed the fallacy in Justice Kennedy's "search-for-greater freedom" passage:
"It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress' ...; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."
*20 539 U.S. at 603--04 (emphasis added).

In language similar to that used in Obergefel/, Justice Kennedy, the author of the majority opinion in Lawrence, stated:

The Obergefell case is but the latest in "a history of repeated injuries and usurpations." Declaration oflndependence para. 2. Among the "long train of abuses and usurpations" cited in

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the Declaration of Independence was Parliament "declaring themselves invested with power to legislate for us in all cases whatsoever." Jd Obergefell is the culmination, beginning with Griswold in 1965, of 50 years ofjudicial usurpation of the right ofthe people to govern themselves and, in particular, of the states to protect from attack "the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15,45 (1885).
IV. The Unavoidable Collision with Religious Liberty
Religious liberty is the gift of God. The Virginia Act for Establishing Religious Freedom (1786), authored by Thomas Jefferson and considered one of his more notable achievements, begins:
"Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments orburthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan ofthe Holy author ofour religion, who being Lord both ofbody and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do...."
12 William Waller Hening, The Statutes at Large, Being a Collection ofAll the Laws ofVirginia,from the First Session ofthe Legislature in the Year 1619, at 84 (Richmond 1823) ("12 Hening, Statutes"). The Virginia Act then explains that to allow a "civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty." 12 Hening, Statutes, at 85 (emphasis added).
The definition of marriage as the union of one man and one woman has existed for millennia and has never been considered an "ill tendency." By contrast, the Court's attempt to redefine marriage is "a dangerous fallacy which at once destroys all religious liberty." As Justice Thomas explained in his dissent in Obergefell: "The Court's decision today is at odds not only with the Constitution but with the principles upon which our Nation was built." 576 U.S. at - - , 135 S.Ct. at 2631. Further, "the majority's decision threatens the

religious liberty our Nation has long sought to protect." 576 U.S. at - -, 135 S.Ct. at 2638.
In former times, the Court showed greater respect for God's gift of religious freedom and deliberated more seriously on the subject. Upholding the denial of an application for citizenship based on conscientious objection to military service, Justice George Sutherland, writing for the Court, stated: "We are a Christian people according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God." United States v. Macintosh, 283 U.S . 605, 625 (1931). In a dissent joined by three ofhis brethren, Chief Justice Charles Evans Hughes noted that the oath to uphold the Constitution administered to legislators and "all executive and judicial Officers," U.S. Const., art. VI, ~ 3, was similar to the naturalization oath. Yet the constitutional oath had not been regarded "as requiring one to promise to put allegiance to temporal power above what is sincerely believed to be one's duty of obedience to God." Macintosh, 283 U.S. at 630 (Hughes, C.J., dissenting).
*21 Chief Justice Hughes recognized the serious issues presented when govertm)ental power clashes with individual conscience:
"[W]ith many of our worthy citizens it would be a most heart-searching question if they were asked whether they would promise to obey a law believed to be in conflict with religious duty. Many of their most honored exemplars in the past have been willing to suffer imprisonment or even death rather than to make such a promise."
283 U.S. at 631. Chief Justice Hughes further explained:
"The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.... One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will ofGod."

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Macintosh, 283 U.S. at 633- 34. The Obergefe/1 majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.
Fifteen years after Macintosh was decided, the Court adopted the reasoning of Chief Justice Hughes in his Macintosh dissent. Justice William 0 . Douglas, writing for the Court, stated:
"The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages, men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom ofreligion guaranteed by the First Amendment is the product ofthat struggle."
Girouard v. United States, 328 U.S. 61, 68 (1946). The Obergefell majority gives scant consideration to these concerns, even though they were presented by amici curiae. See, e.g., brief of amicus curiae Agudath Israel of America, at 17 ("The recognition of same-sex marriage poses a threat to the liberty of religious organizations and individuals whose faith prevents them from acting in accordance with that recognition."); brief of amici curiae the General Conference of Seventh- Day Adventists and the Becket Fund for Religious Liberty, at 36 (stating that "adopting same-sex marriage will have significant negative effects on the ability of religious conscientious objectors to participate fully in society").
In the following passage the Obergefell majority vainly attempts to deflect attention from its egregious assault on religious liberty:
"Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be

condoned. The First Amendment insures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."
*22 576 U.S. at - - , 135 S.Ct. at 2607 (emphasis added). Religious liberty, however, is about more than just "teaching" and "advocating" views of marriage. The majority condescendingly approves religious speech against same-sex marriage but not religious practice in conformity with those beliefs. As Chief Justice Roberts states in his dissent: "The First Amendment guarantees ... the freedom to 'exercise ' religion. Ominously, this is not a word the majority uses." 576 U.S . at - - , 135 S.Ct. at 2625. Justice Thomas similarly notes that religious liberty "is about freedom of action in matters of religion generally," not merely a right to speak and teach. 576 U.S. at - - , 135 S.Ct. at 2638.
The seemingly unnecessary affirmation of a right to speak and teach one's faith conceals an unstated implication that such speech is to have no practical effect on public policy. As Justice Alito comments: "I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools ." 576 U.S. at - -, 135 S.Ct. at 2642-43. Chief Justice Roberts states:
"Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriagewhen, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.... Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today."
576 U.S. at - -, 135 S.Ct. at 2625- 26. Justice Alito concludes: "By imposing its own views on the entire country, the majority facilitates the marginalization of the many

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Americans who have traditional ideas." 576 U.S. at - -, 135 S.Ct. at 2643.
Significantly, Obergefel/ is a more serious threat to religious liberty than the contraception and abortion decisions. Although Roe granted the mother immunity from prosecution for hiring an abortionist to kill her unborn child, Roe did not compel any medical professional, who conscientiously opposed the practice, to participate in an abortion. In 1973, in the wake of Roe, Congress passed the Church Amendments, which protect individuals and entities who receive certain federal funding from participating in abortion or sterilization procedures contrary to their "religious beliefs or moral convictions." 42 U.S.C. § 300a- 7. Subsequent federal laws confirmed or expanded this protection. See Jody Feder, Cong. Research Serv., RS21428, The History and Effect ofAbortion Conscience Laws (2005). Most states have adopted similar conscience-clause legislation. "[Forty-five] states allow some health care providers to refuse to provide abortion services." Guttmacher Institute, State Policies in Brief Refusing to Provide Health Services (July I, 2015). 14
*23 Obergefell promises to breach the legal protections that have shielded believers from participating in acts hostile to their faith. As ChiefJustice Roberts points out, the Obergefell majority piously declaims that people of faith may believe what they want and seek to persuade others, but it says nary a word about them practicing or exercising their faith as the Free Exercise Clause provides. A leading scholar of the Religion Clause states: "A right to believe a religion, but no right to act on its teachings, would be a hollow right indeed. Beliefwithout practice was the conception ofreligious liberty that Oliver Cromwell offered to the Catholics of Ireland." Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L.Rev. 839, 841 (2014). Cromwell stated that he would " 'meddle not with any man's conscience,' " but that Catholics would not be permitted to say the mass. Jd at 841 n.3 (quoting Christopher Hill, God's Englishmen: Oliver Cromwell and the English Revolution 121 (1970)).
Because the issuance of marriage licenses is a state function, the individuals in this State whose conscience rights are implicated by Obergefell and any implementing orders are the probate judges and their staffs. The "must issue" order of the federal district court in Mobile potentially requires those probate judges who conscientiously object to issuing faux marriage licenses to violate their consciences or suffer civil penalties offines and contempt. See Strawser v. Strange, 105 F.Supp.3d 1323 (S.D.Aia.2015). Justice Thomas in his

dissent spoke of these looming enforcement measures as "civil restraints" with "potentially ruinous consequences." 576 U.S. at - - , 135 S.Ct. at 2638- 39. In his "Emergency Petition for Declaratory Judgment and/or Protective Order," Probate Judge Nick Williams echoed that concern, stating: "This Court must act to prevent the imprisonment and financial ruin of this state's probate judges who maintain fidelity to their oath of office and their faith."
Probate Judge John E. Enslen, realigned as a relator, adopted in full Judge Williams's emergency filing and requested from this Court a forthright statement that Obergefell will not be allowed to impair his First Amendment rights under the Free Exercise Clause. He stated:
"I, the undersigned, possess the following sincere religious beliefs which I hold sacred. I seek from this Court a pronouncement of the full range of available legal protections for my First Amendment Rights relating to my following sincerely held religious beliefs:
"I believe that marriage was created by the Divine Creator of all mankind to be the sanctuary for the procreative act, regardless of whether or not said act results in the birth of children.
"I believe that our Divine Creator, by revelations to his chosen prophets throughout the ages, has instructed and commanded mankind, who are his spiritual offspring, to abstain from procreative activities and pseudo-procreative activities of any type outside of the bounds of a natural marriage between a man and a woman. I believe that the complementary anatomy of the male and female body is a tactical revelation of that truth from our Divine Creator.
*24 "I believe that authentic marriage is a natural childcreating and natural child-rearing institution. I believe that as an institution, marriage should not be, and never has been, about satisfying the emotional needs of adults, and that marriage should not be reduced to a mere symbol of social inclusion.
"I believe that over time the adverse ramifications and consequences of ignoring the foregoing Divine mandate will be irreversibly profound. I believe that children are this nation's most important asset, and that our laws should foster the ideal family life where biological parents rear their children, and our laws should make exceptions only where absolutely necessary due to unavoidable circumstances.

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"I believe that homosexuality is not an immutable physical or biological character trait disconnected from one's moral agency or ability to choose one's course ofpersonal conduct and behavior.
"I respectfully request this court to uphold my First Amendment Rights and thereby protect me from diversified litigious attacks against my rights to believe, teach, practice, share, and live my sincere religious beliefs, both in the public square and elsewhere. Unlike the new right of sodomy-based marriage, those First Amendment Rights were foundational to the original establishment of this nation, indeed conditional to the original establishment of this nation, and have priority over other rights newly created by federal judicial fiat."

Tennessee County Clerk StaffResigns over Supreme Court's Gay Marriage Decision, N.Y . Daily News, July 4, 2015. 15 Here in Alabama some probate judges stopped issuing all marriage licenses. In Kentucky a county clerk, who decided in the wake of Obergefell to cease issuing all marriage licenses, was ordered by a federal district judge to issue marriage licenses to same-sex couples in violation of her religious principles. Miller v. Davis (No. l~DLB, Aug 12, 2015) (E.D.Ky.2015). A chaplain at a Kentucky Juvenile Detention Center, after 12 years ofministering to juveniles, was banned from the facility because he would not agree to abide by a regulation that prohibits mentioning that homosexuality is a sin. Todd Starnes, The Christian Purge has Begun: Chaplains Banned from Preaching that Homosexuality is a Sin, FoxNews.com, Aug. 11.2015. 16

As Judge Enslen explains, the Free Exercise Clause, an express constitutional provision, logically takes precedence over a pretended constitutional right formulated from whole cloth by "five lawyers," as Chief Justice Roberts termed them, Obergefell, 576 U.S. at - -, 135 S.Ct. at 2612, 2624 (Roberts, C.J., dissenting), who have embarked on an unauthorized frolic in the field of public policy.
The Virginia Act for Establishing Religious Freedom further explained:
"[T]he proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right...."
12 Hening, Statutes, at 85. If the natural tendency of Obergefell is to mandate that no citizen with religious scruples against same-sex marriage can hold the office of probate judge in Alabama, then that citizen has been deprived of"those privileges and advantages to which in common with his fellow-citizens he has a natural right."
After the ruling in Obergefell was announced, the entire staff of a Tennessee County Clerk's Office resigned to avoid violating their Christian convictions. A county clerk in Mississippi likewise resigned rather than issue marriage licenses to same-sex couples. Nicole Hensley, Entire

*25 As James Madison stated in 1785:
"[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty ofCitizens, and one ofthe noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question..in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."
"A Memorial and Remonstrance," in I Letters and Other Writings of James Madison 163 (1865) ("Letters and Writings "). Joining a decision to repudiate the Fugitive Slave Act, Justice Abram Smith of the Wisconsin Supreme Court expressed similar sentiments: "It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and fmnly rooted that the only remedy is revolution." In re Booth, 3 Wis. 157, 201 n.al (1854) (Smith, J., concurring), rev'd sub nom. Abe/man v. Booth, 62 U .S. 506 (1858). 17
Foreseeing the dire consequences for religious freedom in the principle that same-sex marriage must be given equal stature with holy matrimony and foreseeing the inevitable pressure to compel religious institutions, businesses, and practitioners of professions to conform to that unreality, it would be imprudent to wait for the onset ofthese persecutions, to stand

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idle until Obergefe/1 's "uswped power had strengthened itself by exercise, and entangled the question in precedents." Rather "the axe [must be] laid unto the root of the trees," Matthew 3:10, and the consequence avoided by denying the principle. To allow a simple majority of the United States Supreme Court to "create" a constitutional right that destroys the religious liberty guaranteed by the First Amendment violates not only common sense but also our duty to the Constitution.
V. The Supreme Law ofthe Land
Less than two weeks after Obergefe/1 was released, the Louisiana Supreme Court relied on it to determine that the Louisiana law defining marriage as the union of a man and a woman could no longer be enforced. Costanza v. Caldwell, 167 So.3d 619 (La.2015). The Louisiana court stated that United States Supreme Court opinions " 'must be obeyed in order to maintain the law in its majesty of final decision.' " Id at 621 (quoting State v. Nichols, 216 La. 622, 633 , 44 So.2d 318,321 (1950)). One Justice concurred but only because "/ am constrained to follow the rule of law set forth by a majority of the nine lawyers appointed to the United States Supreme Court." 167 So.3d at 622 (Knoll, J., additionally concurring) (emphasis added). That Justice vigorously expressed her disagreement:
"This is not a constitutionally-mandated decision, but a super-legislative imposition of the majority's will over the solemn expression of the people evidenced in their state constitutional defmitions of marriage.
*26 "Moreover, the five unelected judges' declaration that the right to marry whomever one chooses is a fundamental right is a mockery of those rights explicitly enumemted in our Bill of Rights. Simply stated, it is a legal fiction imposed upon the entirety of this nation because these five people think it should be....
"It is a sad day in America when five lawyers beholden to none and appointed for life can rob the people of their democmtic process.... I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constmined adherence to their 'law of the land ' enacted not by the will of the American people but by five judicial activists."
Id (emphasis added).

appreciate this Justice's cnttque of Obergefe/1, which pamllels those of its four dissenters. Although this critique is devastating, I disagree with the conclusion that the "rule of law'' requires judges to follow as the "law of the land" a precedent that is "a super-legislative imposition," "a mockery," "a legal fiction," and "an utter travesty." 18
A. Do Supreme Court Decisions Automatically Become the "Law ofthe Land"?
Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the "rule of law'' and the "law of the land?'' Sir William Blackstone's Commentaries on the Laws of England became the "manual of almost every student of law in the United States" 19 during this nation's formative years. Blackstone stated that "the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law ." I Commentaries *71. Blackstone understood thatjudges may make mistakes, but in Obergefell, according to the forceful dissents, the majority did not merely make a mistake of law, but instead judged not by the law, but by their own will. As Alexander Hamilton stated: "[I]f [the courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." The Federalist No. 78, at 526.
Article VI,~ 2, of the United States Constitution defines "the supreme law of the land."
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contmry notwithstanding."
By the plain language of Article VI, state judges are bound to obedience to the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, not to the opinions of the United States Supreme Court. 20 Justice Joseph Story stated: "In the ordinary use of language it will hardly be contended that the decisions of

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Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws." Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
*27 Alexander Hamilton, surely an authority on the Constitution, responding to arguments that the Supremacy Clause would allow the new national government to trample on the rights of the states, put the matter very plainly: "If a number of political societies enter into a larger political society," he wrote, "the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed." The Federalist No. 33, at 207 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (emphasis added). But if those powers were abused, the corresponding laws were not supreme.
"But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law ofthe land. These will be merely acts of usurpation and will deserve to be treated as such."
Id Hamilton emphasized: "It will not, I presume, have escaped observation, that [the Supremacy Clause] expressly confines this supremacy to laws made pursuant to the constitution ...."/d. Thus, in the plainestterms and employing emphasis, Hamilton declared that acts of the federal government that invade the reserved rights of the states are "acts of usurpation" that deserve to be treated as such. Such acts "would not be the supreme law of the land, but an usurpation of power not granted by the Constitution." The Federalist No. 33, at 208.
The Supremacy Clause, quite obviously, by this chain of reasoning, does not give the United States Supreme Court or any other agency of the federal government the authority to make its every declaration by that very fact the supreme law of the land. If the Court's edicts do not arise from powers delegated to the federal government in the Constitution, they are to be treated not as the supreme law of the land but as mere usurpation. Hamilton offered an example of an invasion of the reserved powers of the states that is very close to the pretense ofauthority set forth in the opinion ofthe Obergefell majority.

"Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Federal Legislature should attempt to vary the law of descent in any State; would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State?"
The Federalist No. 33, at 206. The laws of inheritance are inseparable from those laws that define the family and in particular the marital relationship. Writing in 1788, over two centuries before Obergefell, Hamilton understandably could not easily imagine the "forced constructions" of federal authority in that case that altered the very definition of marriage. But his example from the law of descent, intended to illustrate an absurdity, makes it clear that Obergefell is an act of usurpation that "will deserve to be treated as such."
*28 Nevertheless, so as not to be misunderstood, emphasize that judges are ordinarily obligated to regard the opinions of the high court as valid precedent that should be followed. Blackstone eloquently stated the general rule that judges are to follow precedent:
"For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, has now become a permanent rule, which it is not in the breast ofany subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine not according to his own private judgments, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one."
I Commentaries *69. But he also stated a vital exception to that rule.

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"Yet this rule admits of exception, where the fonner detennination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the fonner decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law ...."
Id *69- 70 (some emphasis added). Thus, if precedents are "manifestly absurd or unjust," "contrary to reason," or "contrary to the divine law," they are not to be followed.
Applying Blackstone's analysis, which is compatible with that ofHamilton, one must conclude that the Obergefe/1 opinion is manifestly absurd and unjust, as demonstrated convincingly by the four dissenting Justices in Obergefe/1 and the writings oftwo Justices of the Louisiana Supreme Court in Costanza. Basing its opinion upon a supposed fundamental right that has no history or tradition in our country, 21 the opinion of the Obergefell majority is "contrary·to reason" as well as "contrary to the divine law." See Murphy v. Ramsey, 114 U.S. at 45 (defining "the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony" (emphasis added)); Smith v. Smith, 141 Ala. 590,592,37 So. 638,638 (l904)(describing marriage as a "sacred relation"); Goodrich v. Goodrich, 44 Ala. 670, 675 (1870) (quoting a treatise for the proposition that " • "(t]he relation of marriage is founded on the will of God, and the nature of man" ' " (quoted in API, So.3d at - -)). 22 The Obergefell opinion, being manifestly absurd and unjust and contrary to reason and divine law, is not entitled to precedential value.
B. The Military Analogy: The Duty to Disregard Illegal Orders
*29 I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and

locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance.
Although the United States military depends for its effectiveness on obedience to the chain of command, the principle that a subordinate has a duty to resist illegal orders is also well established. The duty to obey the orders of a superior is absolute ''unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful." United States Manual for Courts- Martial, Part II Rules for Courts-Martial, Chapter IX, Rule 916(d) ("Obedience to orders"). The oath I took as a cadet at the United States Military Academy at West Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Unifonn Code of Military Justice." 57 Bugle Notes, at5 (1965)(emphasis added). Later, as a company commander in Vietnam. I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.
At his court-martial, Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians, defended himself by claiming that he was following the orders of his superior, Captain Ernest Medina. The military tribunal that considered Lt. Calley's appeal rejected his superior-order defense on the ground that the order he claimed to be following was clearly unlawful. Even if Lt. Calley had acted in obedience to orders, "he would nevertheless not automatically be entitled to acquittal. Not every order is exonerating". United States v. Calley, 46 C.M.R. ll31, 1183 (1973). "Military effectiveness depends upon obedience to orders. On the other hand the obedience of a soldier is not the obedience ofan automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person." United States v. Calley, 48 C.M.R. 19, 26 (1973) (emphasis added).

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*30 " '[T]he only exceptions recognized to the rule of obedience are cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness....
" 'Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly.... ' "
Calley, 48 C.M.R. at 28 (quoting William Winthrop, Military Law and Precedents 296-97 (2d ed. 1920 Reprint) (emphasis added)).

the duty now devolved upon me. I know well its consequences, and appreciate fully the criticism to which I may be subjected. But I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believing, I cannot hesitate in performing a clear, an indispensable duty."

The same principle, engraved on a plaque at Constitution Comer at West Point, states: "Our American Code ofMilitary Obedience requires that, should orders and the law ever conflict, our officers must obey the law. Many other nations have adopted our principle of loyalty to the basic law." Lt. Calley's conviction confirmed that the basic law remained intact. The same plaque in Constitution Comer reiterates this point even more emphatically: "The United States boldly broke with the ancient military custom ofswearing loyalty to a leader. Article VI required that American Officers thereafter swear loyalty to our basic law, the Constitution."
Over 150 years ago, Justice Abram Smith of the Wisconsin Supreme Court, addressing the Fugitive Slave Act, 9 Stat. 462, expressed the same sentiment. Acknowledging his oath ofloyalty under Article VI to uphold the Constitution, Justice Smith stated that "the duty ofthe [states] to watch closely and resist firmly every encroachment of the [federal government] becomes every day more and more imperative, and the official oath of the functionaries of the states becomes more and more significant." In re Booth, 3 Wis. I, 24 (Smith, J.). Justice Smith recognized that statejudges have a duty to resist unconstitutional federal usurpations of power:
"But believing as I do, that every state officer who is required to take an oath to support the Constitution of the United States as well as of his own state, was designedly placed by the federal constitution itself as a sentinel to guard the outposts as well as the citadel of the great principles and rights which it was intended to declare, secure and perpetuate, I cannot shrink from the discharge of

In re Booth, 3 Wis. at 22- 23. President Andrew Jackson made the same point: "Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others." "Veto Message, July 10, 1832," 3 A Compilation of the Messages & Papers ofthe Presidents 1145 (James D. Richardson ed., 1897).
*31 If, as an individual who is sworn to uphold and support the United States Constitution, I were to place a court opinion that manifestly and palpably violates the United States Constitution above my loyalty to that Constitution, I would betray my oath and blatantly disregard the Constitution I am sworn to uphold. Acquiescence on my part to acts of "palpable illegality" would be an admission that we are governed by the rule of man and not by the rule of law. Simply put, the Justices of the Supreme Court, like every
American soldier, are under the Constitution, not above it.
James Madison warned that "the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution." Madison's Report on the Virginia Resolutions, in 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 549 (Jonathan Elliot ed., 1836) (hereinafter "Elliot's Debates ''). As Chief Justice John Marshall explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179- 80 (1803): "[T]he framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it?" One scholar plainly states: "The courts are constitutional agents, and as such occupy an inferior position to the Constitution itself." Edward J. Erler, Sowing the Wind· Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 Harv. J.L. & Pub. Pol'y 399, 408 (1985).

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In the Dred Scott case, "the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied right of slaveholders." Obergefel/, 576 U.S. at - -, 135 S.Ct. at 2616 (Roberts, C.J., dissenting) (citing Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)). The Court's holding that blacks could not be American citizens certainly was absurd and unjust, but no less so than the holding in Obergefe/1 that "marriage" can now be defmed as the union of two persons ofthe same gender.
C. Abraham Lincoln and the Limits ofJudicial Power
In his First Inaugural Address, President Abraham Lincoln stated that the "evil effect" of an erroneous Supreme Court decision is bearable because the effects are limited to that one case:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils ofa different pmctice."
*32 Letters and Addresses of Abraham Lincoln 195- 96 (H.W. Bell ed., 1903) (emphasis added). The idea that Supreme Court decisions instantly become the "law of the land," however, he considered to be not only erroneous, but also dangerous to free government:
"At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are

made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent pmctically resigned their Government into the hands of that eminent tribunal."
I d. at 196 (emphasis added).
Unless, as Lincoln taught, the "evil effect" of Obergefel/ is limited to the parties in that case, the people "have ceased to be their own rulers," having surrendered their government into the hands of a majority on the United States Supreme Court. As Justice Scalia states: "Today's decree says that my Ruler, and the Ruler of320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." 576 U.S. at - - , 135 S.Ct. at 2627. Justice Ruth Bader Ginsburg, one of that majority, was quoted in a subsequent interview as candidly admitting that the Supreme Court in Obergefel/ intended to make or "establish" the law. The report of the interview quotes her as stating: "The law that the Supreme Court establishes is the law that [judges, lawyers, and the public] must live by...." Samantha Lachman & Ashley Alman, Ruth Bader Ginsburg Reflects on a Polarizing Term One Month Out, HuffingtonPost.com (July 29, 2015). 23 But, as stated above, the Supreme Court does not make law. That power belongs to legislatures or to the formal processes for enacting and amending constitutions.
Indeed, the Supreme Court in recent history has emphasized Lincoln's observation that judicial power is the power to decide particular cases, not to make geneml law. As envisioned by the Constitution, "[t]he Judiciary would be, 'from the nature of its functions, ... the [department] least dangerous to the political rights ofthe constitution' ... because the binding effict of its acts was limited to particular cases and controversies." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 223 (1995) (emphasis added) (quoting The Federalist No. 78, at 522). Indeed, Hamilton considered the judiciary to be the "least dangerous" bmnch and the damage caused by judicial overreaching to be inherently limited precisely because the impact of its decisions was confined to the case before it. "Thus, 'though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: ... so long as the judiciary remains truly distinct from both the legislative and executive.' " Plaut, 514 U.S. at 223 (quoting The Federalist No. 78, at 523). The presumption of the Obergefel/ majority to legislate for the entire nation on a

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"vital question" by making a decision in a particular case is exactly the assumption of legislative power that Hamilton warned would endanger "the general liberty of the people" and Lincoln identified with the demise of self-government.
D. The Fallacy ofJudicial Supremacy
*33 The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. 24 Labeling such opinions as "the rule of law" confuses the law itself- the Constitution- with an opinion that purports to interpret that document.
Article VI, by its plain terms, binds "thejudges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, 25 so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document. As one political scientist observed: "[N]o fiction, however noble, can forever cloak·a philosopher king with moral respectability. Soon or late, it seems, his nakedness appears; then we must begin again the struggle for law- for government by something more suitable than the will of those who for the moment hold high office." Wallace Mendelson, Sex and the Singular Constitution: What Remains ofRoe v. Wade?, 26 PS: Political Science and Politics 206, 208 (1993).
The proposition that judgments of the United States Supreme
Court are to be obeyed unquestioningly by a lower court
regardless of their nonadherence to the Constitution, is known as the doctrine of judicial supremacy. A Princeton professor explains: "Judicial supremacy largely consists of the ability of the Supreme Court to erase the distinction between its own opinions interpreting the Constitution and the actual Constitution itself." Keith E. Whittington, Political Foundations ofJudicial Supremacy xi (2007). By this alchemy the Court becomes the Constitution, and the actual content of the written charter becomes irrelevant except as literary decoration for its opinions. 26 "The constitutional text itselfoften plays only a subordinate role [in deciding cases]." Henry Paul Monaghan, Supremacy Clause Textua/ism, 110 Columbia L.Rev. 731, 793 (20 I 0). This

miracle of transforming Court opinions into constitutional substance "supposes a kind of transubstantiation whereby the Court's opinion of the Constitution ... becomes the very body and blood of the Constitution." Edward S. Corwin, Court Over Constitution 68 ( 1938). A political science professor states: "A formal constitutional oath to uphold the Constitution amounts, then, to an oath to follow the Court. This mirrors the subversion of the written Constitution: what began as a written fundamental law visible to all is translated into the ancient equivalent of legal french for the schooled few." George Thomas, The Madisonian Constitution 37 (2008).
*34 Opinions of the Supreme Court that interpret the Constitution are, as Lincoln said, "entitled to very high respect and consideration," but only insofar as they are faithful to that document. In a case like Obergefe/1, the "evil effects" Lincoln described should be confined to the unfortunate defendants in that case. We must protect the institution of marriage from judicial subversion and maintain loyalty to the principles upon which our nation was founded. Justice Sandra Day O'Connor, the first woman on the United States Supreme Court, stated: "A nation that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders." The Majesty ofthe Law: Reflections ofa Supreme Court Justice 45 (2003).
Finally, we should reject the conversion of our republican form of government into an aristocracy of nine lawyers. Speaking at the North Carolina ratification convention in 1788, James Iredell, soon to be a Supreme Court Justice, explained that the Guarantee Clause 27 was placed in the Constitution so that "no state should have a right to establish an aristocracy or monarchy." 4 Elliot's Debates, at 195. If the Guarantee Clause is offended by a state's abandoning representative government, how much more is it offended by the judicial branch of the national government imposing an aristocratic form of government on every state in the union? The colonists, we should remember, charged King George III with "altering fundamentally the Forms ofour Governments." Declaration of Independence para 2.
E. Did Obergefell Automatically Abrogate the March 2015 Orders in this Case?
Lincoln taught that an order of the Supreme Court was limited to the parties in the case before the Court; beyond that it served merely as precedent. He agreed that Dred Scott as a

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judicial judgment bound the parties to that case, but cautioned against granting it any broader scope. Likewise, following Lincoln's admonition, the ruling in Obergefe/1 bound only the parties before the Court in that case. 28
Some contend, however, that Obergefell, by its mere existence, abrogates the March 2015 orders in this case. Those orders, ofcourse, were not the subject ofreview in Obergefe/1. On October 20, 2015, a panel of the United States Court of Appeals for the Eleventh Circuit summarily affirmed the order of the United States District Court for the Southern District of Alabama "requiring the issuance of marriage licenses to same-sex couples." Strawser v. State (No. 1512508-CC, Oct. 20, 2015) (lith Cir.2015). "Since the filing of this appeal," the Eleventh Circuit stated, "the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefel/ v. Hodges .... "Jd. That conclusion is plainly wrong.

edict apply to the entire nation. "The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States." 576 U.S. at - -, 135 S.Ct. at 2607 (emphasis added). But that holding is beyond its authority and should be regarded as dicta. As Lincoln observed in his first Inaugural Address and as Hamilton instructed in Federalist No. 78, a judicial decision is not a legislative enactment; it binds only the parties to the case. "Courts do not write legislation for members of the public at large; they frame decrees and judgments binding on the parties before them." Additive Controls & Measurement Sys. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed.Cir.l996). The Court had no jurisdiction to order nonparties to Obergefe/1 to obey its judgment for they have not had an opportunity to appear and defend. "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights ofstrangers to those proceedings." Martin v. Wilks, 490 U.S. 755, 762 (1989). Judge Learned Hand stated:

For example, the United States Court of Appeals for the Eighth Circuit recently ruled that Obergefel/ did not directly invalidate the marriage laws of states under its jurisdiction. Applying Obergefel/ as precedent, the Eighth Circuit rejected the Nebraska defendants' suggestion that Obergefel/ mooted the case. The Eighth Circuit stated: "The [Obergefell ] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee-not Nebraska. " Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir.2015) (emphasis added). In two other cases the Eighth Circuit repeated its statement that Obergefe/1 directly invalidated the laws of only the four states in the Sixth Circuit. See Jernigan v.. Crane, 796 F.3d 976, 979 (8th Cir.2015) ("not Arkansas"); Rosenbrahn v. Daugaard, 799 F.3d 918,922 (8th Cir.2015) ("not South Dakota"). The United States District Court for the District of Kansas was even more explicit: " 'While Obergefe/1 is clearly controlling Supreme Court precedent,' it 'did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses... .' " Marie v. Mosier, [No. 14-cv-02518- DDC- TJJ, August 10, 2015] - F.Supp.3d - - (D.Kan.2015). Rejecting the Kansas defendants' claim that Obergefel/ mooted the case, the district court stated that "Obergefell did not rule on the Kansas plaintiffs' claims." /d.
*35 The opinion of the Obergefel/ majority initially agreed with this analysis, holding that "the State laws challenged by Petitioners in these cases are now held invalid." 576 U.S. at - -, 135 S.Ct. at 2605 (emphasis added). Toward the end of its opinion, however, the majority presumed to make its

"[N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it worqs its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, [ 29 l and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court."
A/emile Mfg. Corp. v. Staff, 42 F.2d 832, 832- 33 (2d Cir.l930) (emphasis added).
Rule 65 of the Federal Rules of Civil Procedure, which governs the scope of the district court injunctions that were under review in Obergefe/1, states, in part:
"(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
"(A) the parties;
"(B) the parties' officers, agents, servants, employees, and attorneys; and

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"(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)."
Rule 65(d)(2), Fed.R.Civ.P. (emphasis added). No Alabama probate judges were parties to Obergefell. Neither were they officers, agents, or servants of any of the defendants in those cases, or in active concert or participation with any of them. The Obergefell defendants were state officials in the four states in the jurisdiction ofthe United States Court ofAppeals for the Sixth Circuit, namely Kentucky, Michigan, Ohio, and Tennessee. Needless to say, Alabama probate judges were not agents, servants, or employees of any of those state officials. Nor were they in "active concert or participation" with any of them. Thus, thejudgment in Obergefel/ that reversed the Sixth Circuit's judgment does not constitute an order to Alabama probate judges.
*36 Accordingly, the Eleventh Circuit was incorrect to hold that Obergefel/ abrogated the March orders in this case. Furthermore, this Court is" 'not bound by the decisions ofthe Eleventh Circuit.'" API, - So.3dat - - (quotingExparte Hale, 6 So.3d 452, 458 n.5 (Ala.2008)). "Legal principles and holdings from inferior federal courts have no controlling effect here...." API, - So.3d at - - (quoting Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala.2004)). In a 1991 case, the United States Court of Appeals for the Ninth Circuit adopted a different position, holding that federal district court decisions did not bind state courts but that the decisions of the federal courts of appeal most likely did. "[T]here may be valid reasons not to bind the state courts to a decision of a single federal district judge-which is not even binding on the same judge in a subsequent action-that are inapplicable to decisions ofthe federal courts of appeals." Yniguezv. State ofAriz., 939 F.2d 727,736-37 (9thCir.l991). On review, the United States Supreme Court termed this statement "a remarkable passage" and contrasted it with the following:
"But cf.ASARCOinc. v. Kadish, 490 U.S. 605,617 (1989) ('state courts ... possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law'); Lockhart v. Fretwell. 506 U.S. 364, 375- 376 (1993) (Thomas, J., concurring) (Supremacy Clause does not require state courts to follow rulings by federal courts of appeals on questions of federal law)."

Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.ll (1997). The Chief Judge of the Eleventh Circuit noted this commentary. Citing Arizonans, he stated: "The Supreme Court has rejected and disparaged as 'remarkable' a passage from a Ninth Circuit opinion saying that state courts are bound to follow rulings of the federal court of appeals in the circuit in which they are located." Hittson v. GDCP Warden, 759 F.3d 1210, 1278 (lith Cir.2014) (Carnes, J. , concurring). Acknowledging that federal and state courts have independent and parallel obligations to interpret federal law, he stated: "(I]t is not the role of inferior federal courts, of which we are one, to sit in judgment of state courts on issues of federal law.... We have no more right to lecture state courts about federal law than they have to lecture us about it." Id See also Powell v. Powell, 80 F.3d 464, 467 (II th Cir.l996) (noting "the dual dignity of state and federal court decisions interpreting federal law"). As the United States Supreme Court explained in ASARCO v. Kadish, 490 U.S. 605, 617 (1989): "Indeed, inferior federal courts are not required to exist under Article III, and the Supremacy Clause explicitly states that 'the Judges in every State shall be bound' by federal law. U.S. Const., art. VI, ct. 2." 490 U.S. at 617.
*37 For the above reasons, the Eleventh Circuit is incorrect that Obergefel/ abrogated the March 2015 orders in this case. Additionally, a ruling of the Eleventh Circuit has no binding effect on this Court.
VI. Conclusion
The dissents of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito provide ample justification to refuse to recognize Obergefel/ as a legitimate judicial judgment. Obergefel/ constitutes an unlawful purported amendment of the Constitution by a judicial body that possesses no such authority. As Chief Justice Roberts stated: "The right (Obergefell ] announces has no basis in the Constitution or this Court's precedent." 576 U.S. at - -, 135 S.Ct. at 2612.
In 1785, James Madison, widely recognized as the chief architect ofthe Constitution and who would later become the fourth President of the United States, wrote to the Virginia Assembly:
"The preservation of a free Government requires, not merely that the metes and bounds which

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separate each department of power may be invariably maintained. but more especially that neither ofthem be suffered to overleap the great Barrier which defends the rights ofthe people. The rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves"
"A Memorial and Remonstrance," in I Letters and Other Writings of James Madison 163 (1865). In Obergefel/, a bare majority of five Justices in the face of four vigorous and vehement dissents violated both requirements for "[t]he preservation of a free government." Rather than limiting themselves to the judicial function of applying existing law to the facts and parties before them, the Obergefel/ majority violated "the metes and bounds which separate each department of power" by purporting to rewrite the marriage laws of the several states to conform to their own view of marriage. Condemning this usurpation of the legislative function, Chief Justice Roberts in an adamant dissent explained that "this Court is not a legislature." 576 U.S. at - -, 135 S.Ct. at 2611. "Five lawyers," he lamented, "have closed the debate and enacted their own vision of marriage as a matter of constitutional law." 576 U.S. at - -, 135 S.Ct. at 2612.
Even more injurious to the rule of law, the Obergefell majority "overleap [ed] the great Barrier which defends the rights of the people" as expressed in the Free Exercise Clause of the First Amendment. The majority thus has jeopardized the freedom to worship God according to the dictates of conscience and the right to acknowledge God as the author and guarantor of true liberty. Justice Thomas in his dissent explained: "Aside from undermining the political processes that protect our liberty, the majority's decision threatens the religious liberty our Nation has long sought to protect." 576 U.S. at - -, 135 S.Ct. at 2638. Justice Joseph Story further explained: "The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion." 2 Joseph Story, Commentaries on the Constitution § 1876 (2d ed. 1851 ).

*38 A vivid example of the practical effect of the unwarranted trampling of rights of conscience by the Obergefe/1 majority is the jailing of a Kentucky county clerk for adhering to her religious conviction that God has ordained marriage as an institution that unites only a man and a woman. She stated: "To issue a marriage license which conflicts with God's defmition of marriage, with my name affixed to the certificate, would violate my conscience." Statement of Kentucky Clerk Kim Davis, Sept. I, 2015. 30
By transgressing "the metes and bounds which separate each department of power" and "overleap[ing] the great Barrier" which protects the rights of conscience, the Obergefell majority "exceed[s] the commission from which they derive their authority" and are ''tyrants." By submitting to that illegitimate authority, the people, as Madison stated, become slaves. Free government, rather than being preserved, is destroyed.
Obergefel/ itself is the corrupt descendant of the Court's lawless sexual-freedom opinions that hearken back to Griswold-a "derelict in the stream of the law," State Bd of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 457 (1962). The great irony of the Supreme Court's embrace of the homosexual campaign to redefine marriage is that the homosexual movement has embraced marriage only for the purpose of destroying it. The ultimate goal of that movement is to drive the nation into a wasteland of sexual anarchy that consumes all moral values.
Obergefe/1 is completely without constitutional authority, a usurpation of state sovereignty, and an effort to impose the will of "five lawyers," as Chief Justice Roberts stated, 576 U.S. at - -, - -, 135 S.Ct. 2612, 2624, on the people of this country. Indeed, the Obergefe/1 majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them.
Our forefathers would not have stood idly by to watch our liberties destroyed and our Constitution violated. James Madison stated in 1785 that "it is proper to take alarm at the first experiment on our liberties.... We revere this lesson too much, soon to forget it." "A Memorial and Remonstrance," in 1 Letters and Writings, at 163. I believe that in the Obergefe/1 opinion and the response ofmany to it, we may have forgotten that lesson sooner than we ought.

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In my legal opinion, Obergefe/1, like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion. Its consequences for our society will be devastating, and its elevation of immorality to a special "right" enforced through civil penalties will be completely destructive of our religious liberty.
Why immoral?
Because it elevates into a fundamental right that which was historically regarded by our law as "the infamous crime against nature," which fundamental right Justice Scalia ironically observes was "overlooked by every person alive at the time of ratification. and almost everyone else in the time since." 576 U.S. at - - , 135 S.Ct. at 2629.
Why unconstitutional?
*39 Because "the Constitution ... had nothing to do with it," 576 U.S. at - -, I35 S.Ct. at 2626 (Roberts, C.J., dissenting), and because it is a "distortion of our Constitution" that "ignores the text" of the Constitution. 576 U.S. at - - , 135 S.Ct. at 263I (Thomas, J., dissenting).
Why tyrannical?
Because the Obergefe/1 opinion "shows that decades of attempts to restrain this Court's abuse of its authority have failed," 576 U.S. at - -, 135 S.Ct. at 2643 (Aiito, J., dissenting), and because Obergefe/1 ''will be used to vilify Americans who are unwilling to assent to the new orthodoxy" and "exploited by those who are determined to stamp out every vestige of dissent." 576 U.S. at - - , 135 S.Ct. at 2642 (Aiito, J., dissenting). In addition, Obergefe/1 contradicts "the Laws of Nature and of Nature's God" that were invoked in the organic law upon which our country is founded. Declaration of Independence para. I. To invariably equate a Supreme Court decision that clearly contradicts the Constitution with '<the rule of law" is to elevate the Supreme Court above the Constitution and to subject the American people to an autocracy foreign to our form of government. Supreme Court Justices are also subject to the Constitution. When "that eminent tribunal" unquestionably violates the limitations set forth in that document, lesser officials-equally bound by oath to the Constitution- have a duty to recognize that fact or become guilty of the same transgression.

" '[T}he central principle of a free society [is} that courts have finite bounds of authority, some of constitutional origin, which exist to protect citizens from ... the excessive use of judicial power. The courts, no less than the political branches of the government, must respect the limits of their authority.' "
State v. Property at 2018 Rainbow Drive, 740 So.2d I025, I028 n.l (Ala.l999) (quoting United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988)).
In face of the lawlessness of the Obergefe/1 majority, I agree with the dissenting opinion of Chief Justice Roberts: "If you are among the many Americans ... who favor expanding same-sex marriage, by all means celebrate today's decision.... But do not celebrate the Constitution. It had nothing to do with it.'' 576 U.S. at - - , 135 S.Ct. at 2626 (emphasis added).
As stated at the beginning of this special concurrence, the certificate ofjudgment in this case does not disturb the March 2015 orders of this Court that uphold the constitutionality of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act. For that reason, as explained above, I concur.
STUART, Justice (concurring specially). Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter ofroutine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and ofany Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.
BOLIN and MAIN, JJ., concur.
BOLIN, Justice (concurring specially). *40 In light of the United States Supreme Court's decision of Obergefe/1 v. Hodges, 576 U.S. - - , 135 S.Ct. 2584 (20I5), in which a 5-4 majority declared, without

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any constitutional basis, that same--sex applicants have a fundamental constitutional right to marriage, I concur in dismissing the "Motion for Clarification and Reaffirmation of the Court's Orders Upholding and Enforcing Alabama's Marriage Laws." I do not agree with the majority opinion in Obergefe/1; however, I do concede that its holding is binding authority on this Court. See Howlett v. Rose, 496 U.S. 356, 371 (1990)("The Supremacy Clause forbids state courts to dissociate themselves from fedeml law because of disagreement with its content or a refusal to recognize the superior authority of its source."). I am nevertheless bound by my conscience to write further to express my views concerning the Obergefe/1 majority's lack of a legal basis for its opinion, as well as to recognize what I deem to be the possible effect of Obergefe/1 upon Alabama's marriagelicense laws left in its wake.

/.Fourteenth Amendment
*41 As Justice Scalia said in Obergefe/1:
"When the Fourteenth Amendment was mtified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so....
" ... Buried beneath the mummeries and straining-to-bememomble passages ofthe opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasonedjudgment,' thinks the Fourteenth Amendment ought to protect. ...

Moreover, as a preliminary matter, I would like to emphasize the seemingly obvious- that this Court's order, dismissing all pending motions and petitions in this case, is not an opinion of this Court. Rather, the order is simply a plain vanilla order of dismissal, with no accompanying explanation. A "dismissal order'' or "order of dismissal" is defined as an order "ending a l~wsuit without a decision on the merits." Black's Law Dictionary 1271 (lOth ed.2014). Whereas, an order of"denial" is defmed as "[a] refusal or rejection; esp., a court's refusal to grant a request presented in a motion or petition." Black's Law Dictionary 527 (lOth ed.2014). Although arguably the difference between "dismissed" and "denied" is sometimes as semantic (i.e., in this proceeding) as it is substantive, I would posit that the more appropriate judicial order in this proceeding would be "denied." However, because I agree this case must end, I concur in this Court's "dismissal." I note also that there are six special writings attendant to this order of"dismissal." A special writing and, more specifically, a "special concurrence," is defined as "[a] vote cast by a judge in favor of the result reached, but on grounds different from those expressed in the opinion [if such be present] explaining the court's judgment or in order to state views not expressed by the court." Black's Law Dictionary 352 (lOth ed.2014)(brackets added). In other words, a special concurrence is nothing more than a writing containing additional thoughts and/or commentary of the author, unless, of course, another Justice or Justices join in that special concurrence. I reiterate that of all the special writings genemted by this Court's order of dismissal, none of them, including this one, speaks the words of the Court. In this regard, I join Justice Stuart's special writing commenting upon the same.

"... States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.' ..."
576 U.S. at - -, 135 S.Ct. at2628-29(Scalia, J., dissenting) (footnote omitted; some emphasis added). Apparently states are not always so free, because, as Justice Scalia further expressed:
"They [the majority] have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of mtification, and almost everyone else in the time since ."
576 U.S. at - - , 135 S.Ct. at 2629 (Scalia, J., dissenting).
The United States Supreme Court has stated that "the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.' " Washington v. Glucksberg, 521 U.S. 702,720--21 (l997)(citationsomitted). It is without dispute that the concept of same-sex marriage is not deeply rooted in either this Nation's or this State's history and tmdition-or frankly anywhere. To the contrary, from its earliest days, circa 1800s, Alabama has, with little modification, provided a statutory scheme for the formal licensing and recognition of marriages as being between a man and a woman. In the decision previously issued by this Court that is the subject ofthe motions disposed of today, the

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Court expounded on the genesis and historical framework of marriage:
"Laws that include the concept of marriage as the union of one man and one woman, however, predate the inception of Alabama as a state in 1819. In 1805,- when Alabama was still a part of the Mississippi Territory- the legislature ofthe Mississippi Territory passed an act imbuing orphans' courts with the power to grant and issue marriage licenses. H. Toulmin, Digest ofthe Laws ofAlabama, tit. 42, ch. I, § 4 (1823). That act remained in force after the creation of Alabama as a state in 1819 and contained language referring to persons joined together as 'man and wife.' See H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. I, § 6 (1823). Furthermore, in 1805, the plain, ordinary, and commonly understood meaning ofthe word 'marriage' was 'the act of joining: man and woman.' Webster, A Compendious Dictionary of the English Language, 185 (1806). Following Alabama's becoming a state in 1819, Alabama law continued to include the concept of marriage as the union of one man and one woman. See Hunter v. Whitworth, 9 Ala. 965,968 (1846) ('Marriage is considered by all civilized nations as the source of legitimacy; the qualities of husband and wife must be possessed by the parents in order to make the offspring legitimate, where the municipal law does not otherwise provide.' (emphasis added)). In 1850, the Alabama Legislature conferred the power to issue marriage licenses to the newly created probate courts. 1850 Ala. Laws 26. This power was officially codified in 1852. See Ala.Code 1852, § 1949."

the meaning of a word after it has been used by the legislature), a union between one man and one woman."
API, - So.3d at - - (emphasis added).
In Alabama, in 1998 and 2006, the legislature and the people of this State, respectively, recommitted expressly to the vital nature of the meaning of marriage in our present statutory scheme:
"Chapter I of Title 30, Ala.Code 1975, provides, as has its predecessor provisions throughout this State's history, a comprehensive set ofregulations governing what these statutes refer to as 'marriage.' See, e.g., § 30-17, 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-I- 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-l- 19(b) and (d), Ala.Code 1975. In 2006, the people of Alabama ratified [by 8) percent of the vote} an amendment to the Alabama Constitution known as the 'Sanctity of Marriage Amendment,' § 36.03, Ala. Const.l90I ('the Amendment'), which contains identical language. § 36.03(b) and (d), Ala Const.l901."

*42 Ex parte State ex rei. Alabama Policy Inst., [Ms. 1140460, March 3, 2015] - So.3d - -, - n.18 (Ala.2015)("API "). Further, this Court made reference to
"the provisions of Chapter I of Title 30 (and their predecessors dating back 200 years) by which the legislature has provided for the affirmative licensing and recognition of 'marriage,' including the provision in § 30-1- 9 (and its predecessors) for the licensing of 'marriages' and the provisions in § 30-1- 7 (and its predecessors) for the solemnization of 'marriages.' And it is clear that the term 'marriage' as used in all those laws always has been, and still is (unless the courts can conjure the ability to retroactively change

API, - So.3d at - - (emphasis added).
Clearly, the State of Alabama has exercised its sovereign authority to define marriage as being inherently that relationship between a man and a woman by the authority that has exclusively been delegated to the states, including this State, to regulate, pursuant to the express language in the Ninth Amendment to the United States Constitution,
part of the Bill of Rights (addressing the rights, retained
by the people, that are not specifically enumerated in the Constitution) and the Tenth Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). Moreover, the people of Alabama have given voice to their sovereign state authority through ratification of the Sanctity of Marriage Amendment to the Alabama Constitution by an overwhelming 81 percent vote. Justice Kennedy, writing for the majority in United States v. Windsor, 570 U.S. - - , - -, 133 S.Ct. 2675,

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2691 (2013), acknowledged the above-mentioned authority when he referred to the well settled authority of each state to regulate its own laws regarding marriage and the definition of "marriage":
*43 ''The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298 (1942) ('Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders'). The definition ofmarriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the '[p]rotection of offipring, property interests, and the enforcement of marital responsibilities.' Ibid. '[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.' Haddock v. Haddock, 201 U.S. 562, 575 (1906); see also In re Burrus, 136 U.S. 586, 593594 (1890) (' The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States')."
(Emphasis added.) Without comment concerning, or apology regarding, those words, only two years later the same Justice Kennedy, writing for the majority in Obergefe/1, reversed course and decreed that all states are now required by the Constitution to issue marriage licenses to same-sex couples. It bears repeating that this change of interpretation and direction came only two years after Windsor and in the words of the same Justice who authored that opinion. Although Justice Kennedy cited Windsor on six different occasions in Obergefe/1, he nonetheless made no attempt to distinguish his statement in Windsor that "[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States." Windsor, 570 U.S. at - -, 133 S.Ct. at 2689- 90. Rather, the Obergefel/ majority pulled from thin (legal) air a redefinition of marriage that is based not on any fundamental right deeply rooted in this Nation's history and tradition, but rather on its self-declared beliefs that same-sex couples should be allowed to marry because "[t]he nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality"; "[m]arriage responds to the universal fear that a lonely person might call out only to find no one there"; "[t]heir hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions"; "[t]hey ask for equal dignity

in the eyes of the law"; and "[t]he Constitution grants them that right." 570 U.S. at - -, 135 S.Ct. at 2599, 2600, and 2608. Yielding to current social mores and temporal societal policy to recognize a fundamental constitutional right in a way not intended for the judicial branch of government, the majority in Obergefel/, in the last phrase quoted above, is better understood to be saying: "We simply think that the Constitution should, and hereby does, grant them that right."
*44 The above-stated beliefs and accompanying conclusion, properly excoriated by the four Obergefell dissenters, are legislative rather than judicial in tone and nature and, again, ignore Supreme Court precedent to reach a desired societal result, which, as noted by Justice Scalia, "diminish[es] [the] Court's reputation for clear thinking and sober analysis." 576 U.S. at - -, 135 S.Ct. at2630 (Scalia, J., dissenting). Rather,
"[t]or today's majority, it does not matter that the right to samesex marriage lacks deep roots or even that it is contrary to longestablished tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental."
576 U.S. at - -, 135 S.Ct. at 2640-41 . (Aiito, J., dissenting) (emphasis added).
"Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer."
576 U.S. at- -, 135 S.Ct. at 2612 (Roberts, C.J., dissenting) (emphasis added).
Apparently the Constitution does leave doubt. Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme

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Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right,
it does make it a majority opinion. In my humble judgment, the 5-4 majority does not make the Obergefell decision well
reasoned or even based upon sound principles of established constitutional law. Rather, it only makes it binding authority for today-subject to being properly, and lawfully, reexamined and reconsidered in the future. In the meantime, it seems to me to be an opinion that defines the phrase ipse dixit- translated as meaning "he himself said it" or "[s]omething asserted but not proved." Black's Law Dictionary 956 (lOth ed.2014). My translation-it is because, without foundation, they say it is.

Alabama's marriage-licensing statutes is not squarely before this Court. However, as it pertains to a state statute, the United States Supreme Court has, at least currently, observed that "[s]everabi/ity [of a portion of a state statute] is of course a matter ofstate law." Leavitt v. JaneL., 518 U.S. 137, 139 (1996) (emphasis added). This Court noted in API that to
"allow the judiciary to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken, [is] contrary to well established state and federal principles ofjudicial review."

II. Alabama Licensing Scheme- Aftermath
The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively. See Chapter I, titled "Marriage," of Title 30, Ala.Code 1975. My concern arises because when some aspect ofa law has been held to be unconstitutional, or unenforceable, due to some unforeseen practical difficulty or impossibility, or, as in this case, a judicially quickened version of the deliberative democratic process, it must be determined whether what is left can be enforced without the ineffective portion. In API, this Court acknowledged that
*45 "the contemplated change in the definition (or 'application' if one insists, although this clearly misapprehends the true nature of what is occurring) of the term 'marriage' so as to make it mean (or apply to) something antithetical to that which was intended by the legislature and to the organic purpose of Title 30, Chapter I, would appear to require nothing short of striking down that entire statutory scheme."
- So.3d at - -.
At this juncture, I express only my concern rather than my opinion because the issue of the future enforceability of

- So.3dat - - n.l9.
The issue of severability involves a question of statutory construction, which primarily involves ascertaining and giving effect to the intent of the legislature.
"This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa, 251 Ala. 209, 217, 36 So.2d 487,493 (1948):
" 'A criterion to ascertain whether or not a statute is severable so that by rejecting the bad the valid may remain intact is: The act "ought not to be held wholly void unless the invalid portion is so important to the general plan and operation ofthe law in its entirety as reasonably to lead to
the conclusion that it would not have been adopted if the
legislature hadperceived the invalidity ofthe part so held to be unconstitutional." A. Bertolia & Sons v. State, 247 Ala. 269, 271, 24 So.2d 23, 25 [ (1945) ]; Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 [ (1934) ]; 6 R.C.L. 125, § 123.' "
King v. Campbell, 988 So.2d 969, 982 (Ala.2007) (emphasis added in King ). The fallout from Obergefe/1 may present a classic example of an inability to sever the remains of our statutory licensing scheme following the imposition of the newly crafted definition of "marriage" announced by the Obergefe/1 majority. Arguably, this result appears inescapable, because the new definitional fiat is completely contrary to what this State's legislature has historically intended and enacted. Stated differently, Alabama's marriagelicense provisions, Chapter 1 of Title 30, Ala.Code 1975, titled "Marriage," being the very heart and soul of our statutory licensing procedure, are dependent upon this State's

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historical definition of "marriage" as a union of a man and a woman. Under the circumstances with which we are left and upon proper challenge, neither the probate judges, nor this Court, nor the other courts ofthis State, may have the practical ability to enforce our State licensing laws concerning the institution of marriage in the manner contemplated by our legislature and our people.
Ill. Conclusion
*46 The Obergefe/1 majority declared that the constitutional authority and process for defining marriage is no longer a matter for the states; the Obergefe/1 majority usurped both this authority and process, knowing what was best for usan elitist view that is extrajudicial and condescending to the states under the 9th and IOth Amendments and to the citizenry and this country as a whole and, by the way, to the rule oflaw. With regard to this elitism and condescension, Justice Scalia succinctly noted that "[t)he opinion is couched in a style that is as pretentious as its content is egotistic." 576 U.S. at - -, 135 S.Ct. at 2630 (Scalia, J., dissenting), and that,
"to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresented panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.. ..
"But what really astounds is the hubris reflected in today's judicial Putsch."
576 U.S. at - - , 135 S.Ct. at 2629 (Scalia, J., dissenting) .
As tempting as it would be to reenact the type defiance the State of Georgia and President Andrew Jackson espoused when Georgia refused to comply with a Supreme Court order and President Jackson, decrying the Supreme Court and defending Georgia, purportedly stated: "[Chief Justice] John Marshall has made his decision, now let him enforce it" 31 - I cannot and will not go that far in defiance, because to do so would only placate the heart at the expense of the head; and, should anyone do so, our constitutional republic would begin to cease being a nation of laws and not of men; and, finally, to do so in this case could potentially render the licensing officials, i.e., the probate judges ofthe State, subject to personal civil liability for following their religious beliefs. And it is arguably not hyperbole to further contemplate that it could place those same licensing officials in the middle of an endgame stand-off with federal marshals and/or federalized

national guardsmen on one side, with a contempt order from a federal court in hand, and state law-enforcement officers on the other, with a competing and conflicting state court order in hand. We have already had one war with kinsmen fighting kinsmen. We do not need another. Rather, we need to see that review of this wrong decision is done the right way- by constitutional means; otherwise, we would be in the same position as Chief Justice Roberts when he stated in the Obergefe/1 decision: "Just who do we think we are?" 576 U.S. at - - , 135 S.Ct. at 26I2 (Roberts, C.J., dissenting). In this regard, I join that portion of Part II of Justice Shaw's well reasoned special writing concerning defiance.
As respectfully as I can, albeit reluctantly, concur in dismissing the petitioners' motions, and I further concur specially to note that the process of licensing of marriages in Alabama as we have known it may have been irreparably broken.
PARKER, Justice (concurring specially). *47 I concur in the issuance of the certificate ofjudgment and in the dismissal of the pending motions and petitions. Dismissal, as distinct from denial, is not a decision on the merits. Thus, this Court is not denying on the merits matters of vital importance concerning the effect--or lack thereof --of Obergefe/1 v. Hodges, 576 U.S. - - , 135 S.Ct. 2584 (20 I5), on such issues as the issue of religious-liberty rights of individuals.
I concur specially to state that Obergefe/1 conclusively demonstrates that the rule of law is dead. "Five lawyers" 32 - appointed to judgeships for life 33 and practically unaccountable 34 to the more than 320 million Americans they now arbitrarily govern-enlightened by "new insights" into the true meaning of the word "liberty," determined that "liberty" means that Americans have a new fundamental right only now discovered over 225 years since the Constitution was adopted. "Five lawyers," who have treated the Constitution as "a mere thing of wax ... which they may twist, and shape into any form they please," 35 determined to impose their enlightenment on this nation in spite of the vast majority of the states having democratically refused again and again to redefine the divinely initiated institution ofmarriage. In marching this country "forward" to their moral ideal, the "five lawyers" composing the majority in Obergefe/1 have trampled into the dust the last vestiges of the legitimacy of the United States Supreme Court.

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Obergefe/1 is not based on legal reasoning, history, tradition, the Court's own rules, or the rule of law, but upon the empathetic feelings of the ''five lawyers" in the majority. What the late John Hart Ely said of another decision can be said of Obergefe/1: "It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be." John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 {1973). The majority in Obergefe/1 does not set forth authorities that lead to its conclusion; it sets forth only sentiments that support its whim in this case to create a fundamental constitutional right. In order to reach this conclusion, the majority in Obergefe/1, having ascended to a new understanding of human liberty, threw off the restraints ofthe rule oflaw and history. Having by judicial will set themselves free from those "shackles," the majority then ushered in a new era of "liberty": court-pronounced dignity. Justice Hugo Black, an Alabamian, provided an apt description ofwhat the United States Supreme Court has done in Obergefe/1 in his dissent in In re Winship, 397 U.S. 358, 384 (1970):
"When this Court assumes for itself the power to declare any law--state or federal-unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the 'law of the land' and instead becomes one governed ultimately by the 'law of the judges.'"
*48 In Cottingv. Godard, 183 U.S. 79,84 {1901), the United States Supreme Court stated:
"It has been wisely and aptly said that this is a government oflaws, and not of men; 36 that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them."
See also Marbury v. Madison, 5 U.S. (I Cranch) 137, 163 (1803)("The government of the United States has been

emphatically termed a government oflaws, and not ofmen."). 8 y rejecting the rule oflaw, history, and the viewpoint ofmost states, the majority's approach in Obergefe/1 explicitly rejects the idea that America is a government oflaws and not ofmen. Instead, the majority illegitimately imposed its will upon the American people. We now appear to be a government not of laws, but of"five lawyers."
In Planned Parenthood v. Casey, 505 U.S. 833 , 865-{)6 (1992), a plurality ofthe United States Supreme Court stated:
"The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.
"The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation."
(Emphasis added.) See also Michael H. v. GeraldD., 491 U.S. 110, 127 n. 6 (1989)("[A] rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all."). Obergefe/1 is "no judicial act at all" because it is "without principled justification." Casey, 505 U.S. at 865. In

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fact, it is without any legal justification at all. Accordingly, the United States Supreme Court's decision in Obergefell is without legitimacy. See Republican Party of Minnesota v. White, 536 U.S. 765, 793 (2002)(Kennedy, J., concurring) ("Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen's respect for judgments depends in turn upon the issuing court's absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.").
*49 I also caution against the United States Supreme Court's inherent assertion in Obergefell that it is above the law, rather than being constrained to its constitutional function of interpreter of the law. " It is emphatically the province and duty of the judicial department to say what the law is," Marbury, 5 U.S. (I Cranch) at 177- not to make it up as we go along. The majority in Obergefell was even so brash as to set aside the Supreme Court's own established rules in ignoring the requirement that, in order for a fundamental right to be recognized, it must be rooted in our nation's history. History has shown a proclivity to ignore the rules when they get in the way of a desired goal. Justice Joseph Story warned of such a practice:
"A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.
"This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks uponjudicia1 authority."
Joseph Story, Commentaries on the Constitution ofthe United States 127 (1833). Justice Sutherland stated the following in his dissent in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937):
"The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point

of difference between the two is to miss all that the phrase 'supreme law of the land' stands for and to convert what was intended as inescapable and enduring mandates into mere moral reflections."
One should not be so naive to think that Justice Sutherland was warning ofan event that has not already come to pass. In fact, Obergefell demonstratively evinces that the "mere moral reflections" of the judiciary's constitutional role no longer give any pause for reflection at all to a majority ofthe Justices on the United States Supreme Court. There appears to be no restraint on the judiciary, because "five lawyers" believe that they may simply decide, with no legal support whatsoever, that a particular fundamental right be created because they think it fair. This is not the rule of law, this is despotism 37 and tyranny. 38
Despotism and tyranny were evils identified in the Declaration of Independence as necessitating the break with King George and Great Britain. In his dissent in Loan Association v. Topeka, 87 U.S. 655, 669 (1874), Justice Clifford defined judicial despotism as follows:
"Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general· latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism."
*50 (Footnotes omitted; citing Walker v. CityofCincinnati, 21 Ohio St. 14, 8 Am. Rep. 24 (Ohio 1871).) Further, Montesquieu, in his enduring work "The Spirit of the Laws," stated:
"In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to

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investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life is concerned."
Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (Thomas Nugent trans. 1752)(Kitchener 2001) (emphasis added). 39 Obergefe/1 is the latest example of judicial despotism. It is a decision not based on law, but on the bare majority's philosophy oflife. For the states to honor such a decision as legitimate is to bow our knee to the selfestablished judicial despots of America. "[T]yranny is the exercise ofpower beyond right, which no body can have a right to." John Locke, Second Treatise of Government 101 (C.B. Macpherson ed., 1980)(1690). As Thomas Jefferson wrote, "experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." Thomas Jefferson, A Bill for the More General Diffusion of Knowledge, June 18, 1778, 2 The Works ofThomas Jefferson 414 (Paul Leicester Forded., G.P. Putnam's Sons, 1904).
Edward S. Corwin, who popularized the term "judicial review," only settled on that wording for that phrase in
° 1909. 4 Corwin initially used the term ''the doctrine of
judicial paramountcy." 41 Corwin's original term captures the reality of judicial supremacy that has grown out of judicial review. But the version of judicial supremacy reflected in the majority's decision in Obergefe/1 is far beyond earlier manifestations of judicial supremacy. As employed by the majority in Obergefe/1, it is the implicit claim to the supreme authority of the federal judiciary to decide any important political or social question confronting our country, whether the Constitution authentically addresses it or not (although the judges will contend that it does). Chief Justice Roberts refers to this as "the majority's extravagant conception of judicial supremacy." Obergefell, 576 U.S. at - -, 135 S.Ct. at 2624 (Roberts, C.J., dissenting). He describes the majority view of judicial supremacy as follows :

dimensions of freedom ... apparent to new generations,' for providing 'formal discourse' on social issues, and for ensuring 'neutral discussions, without scornful or disparaging commentary.' Ante, at 2596-2597." *51 Id Chief Justice Roberts then puts this selfaggrandizing claim of power in historical context: "Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges." 576 U.S. at - - , 135 S.Ct. at 2624. To use the term applied by Justice Scalia, this is an anti-constitutional "judicial Putsch." 576 U.S. at - -, 135 S.Ct. at 2629 (Scalia, J., dissenting). As justices and judges on state courts around the nation, we have sworn an oath to uphold the United States Constitution. We have not sworn to blindly follow the unsubstantiated opinion of "five lawyers." As the Supreme Court of Utah boldly stated:
"The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three fourths ofthe states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erst while free and independent states are now in effect and purpose merely closely supervised units in the federal system.
" ... We ... long for the return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions."

"The role of the Court envisioned by the majority today .. . is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority's telling, it is the courts, not the people, who are responsible for making 'new

Dyett v. Turner, 20 Utah 2d 403, 405-06, 439 P.2d 266, 26768 (1968). An illegitimate decision is due no allegiance; our allegiance as judges is to the United States Constitution.

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The rule oflaw is ofutmost importance to the sustainability of this nation and the foundation of American exceptionalism. Taking a line from the late Ronald Reagan, we as justices and judges have a crucial role to "preserve to our children this [constitutional republic based upon the rule of law], the last best hope of man on earth, or we'll sentence them to take the last step into a thousand years of darkness." 42

Among other things, Justice Jackson's concerns bring to mind this colloquy:
" 'I don't know what you mean by "glory,' "Alice said.
"Humpty Dumpty smiled contemptuously. 'Of course you don't-till I tell you. I meant "there's a nice knock-down argument for you!' "

MURDOCK, Justice (concurring specially). I share many ofthe concerns expressed by my colleagues, not the least of which is the concern for religious liberty and the concern expressed by Justice Bolin in Part II of his writing. I write not to repeat those concerns, but to offer some related thoughts .

" 'But "glory" doesn't mean "a nice knock-down argument,' " Alice objected.
"'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to meanneither more nor less .'
" 'The question is,' said Alice, ' whether you can make words mean different things.'

***
A group of judges can declare all it wants that two people of the same sex can "marry," but in the words of The Federalist No. 78, 43 they cannot change "the nature and reason of the thing" called marriage. In Brown v. Allen, 344 U.S. 443 (1953), Justice Jackson warned that "it is prudent to assume that the scope and reach of the Fourteenth Amendment will continue to be unknown and unknowable, that what seems established by one decision is apt to be unsettled by another, and that its interpretation will be more or less swayed by contemporary intellectual fashions and political currents." 344 U.S. at 534 (Jackson, J., concurring in the result)(emphasis added). He further observed that the Supreme Court "may look upon this unstable prospect complacently, but state judges cannot." Id. 44 Justice Jackson summarized the problem this way:
*52 "Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fzxed principles." 344 U.S. at 535 (emphasis added). Justice Jackson's words were prescient.

"'The question is,' said Humpty Dumpty, 'which is to be master- that's all.' "
Lewis Carroll, Through the Looking- Glass, and What Alice Found There (Macmillan and Co., London 1872).
At least Carroll's protagonist was undertaking only to declare contemporaneously the meanings of his own words, not proposing to change the meanings of words used by others at some time in the past. At best, the federal courts are applying a new meaning to words after they have been spoken and written by others, including the Supreme Court itself in earlier opinions, state legislatures, and the people themselves in organic state law. Even viewed in this manner, what the federal courts are doing has the gravest of consequences. If we cannot depend upon the meaning of words as understood at the time the words were chosen by their speaker or writer, the ability to communicate any idea from one time to another is lost. The ability to communicate any truth from one time to another is lost. And therewith the rule of law.
In reality, however, the federal courts, including the Supreme Court, are doing something even more radical than "merely" changing the meaning of the word "marriage" after its use by others. They purport to engage in alchemy. To declare, as if they could do so, a change in the essential nature of the thing itself. That they purport to do so is appropriately met with the consternation expressed by Chief Justice Roberts when he exclaimed: "Just who do we think we are?" Obergefell v. Hodges, 576 U.S. - , - , 135 S.Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting).

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Governments did not and do not create the institution of marriage. A civil government can choose to recognize that institution; it can choose to affirm it; and it can even take steps to encourage it. Governments throughout history have done so. But governments cannot change its essential nature. Marriage is what it is. No less so than any naturally occurring element on the periodic table. 45
*53 Yet, here we are. The courts undertake to change-or at least declare a change in- the essential nature of the thing itself. It is not just that the existence of such an ability would make it impossible to communicate and maintain a rule of law (which it does) or even to communicate truths from one person or time to another (which it also does). To assume the ability to declare such a change presumes there is no objectively ascertainable, universally applicable and immutable---''unalienable" in the words ofthe Declaration of Independence--truth about the thing.
The postmodem philosophy of truth this represents is that each individual can decide for himself or herself what is true. In contrast, the Declaration of Independence and the United States Constitution reflect, and the drafters of the one and framers and ratifiers of the other believed in, a philosophy of objectively ascertainable truth. Truth that is external to each ofus. Truth that informs a common value system against which to consider one another's ideas and conduct. Only out of such a universal truth can there arise "certain rights" that can themselves be universal- and unalienable.

I The procedural background oftoday's ruling
API ordered the probate court judges of this State who were not subject to a contraryfederal court injunction to continue to follow Alabama's marriage laws. 46 As I stated in my dissent to that opinion, I am of the view that this Court never had jurisdiction in this case under Ala. Const.190 1, Art. VI, § 140(b), or Ala.Code 1975, §§ 12- 2- 7(2) and (3). API, So.3d at - - (Shaw, J., dissenting). Furthermore, I am also of the view that the petitioners had no right under Alabama law to pursue the petition in their own names or in the name of the State. I further objected to addressing issues no party had raised. Id In short, I concluded that the petition was never properly before this Court and should have been dismissed at the outset. I continue to adhere to those views and that conclusion.
*54 Subsequent to, and perhaps as a result of, this Court's decision in API, all of Alabama's probate court judges were sued in the United States District Court for the Southern District of Alabama. Strawser v. Strange, 307 F.R.D. 604 (S.D.Ala.2015). All are now subject to a federal class action and an injunction forbidding them from enforcing Alabama's ban on the issuance of same-sex governmentmarriage licenses. Strawser v. Strange, 105 F.Supp.3d 1323 (S.D.Ala2015). 47 Because of that federal court injunction, this Court's decision in API, by its own terms, no longer applies to them. See note 46, supra.

So, in the end, perhaps the real question is this: Can the United States Supreme Court decide upon some philosophy of truth different from that assumed by the framers ofthe Constitution and by the Constitution itself-the same Constitution that gives that Court its very existence and its authority to make decisions? And impose this different philosophy oftruth upon the people of this country? Where is the authority for that?
SHAW, Justice (concurring specially). I concur with this Court's dismissal of the various postjudgment motions and requests in this case that ask this Court to enter an order defYing the decision of the Supreme Court of the United States in Obergefell v. Hodges, 576 U.S. - -, 135 S.Ct. 2584 (2015). As discussed below, this Court's decision, Ex parte State ex rei. Alabama Policy Institute, [Ms. 1140460, March 3, 2015] - So.3d - (Ala.2015) ("API "), no longer has a field ofoperation or any legal effect.

After the decisions in Strawser, one of the parties in this case filed in this Court a request to clarifY and "reaffirm" the decision in API "despite" the contrary injunctions issued by the federal district court in Strawser. The Supreme Court of the United States later issued its opinion in Obergefell and held that the United States Constitution barred restrictions on the issuance of same-sex government-marriage licenses. This Court "invited" the parties to submit motions or briefs to address the impact of Obergefel/. I did not concur with that invitation. In response, several parties in this case and others have now requested this Court to address the impact of Obergefell on API. Among the suggestions are that this Court can ignore Obergefell and that, essentially, this Court can and should order all probate court judges to ignore it too. As a result, we are urged to order our probate court judges to defY the federal court injunction against them. I initially found these post-decision requests to be extraordinary in nature: As explained below, this Court does not ordinarily entertain motions to clarifY past cases in light of new Supreme Court

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decisions, and the law is well settled that this Court can do nothing to allow the probate court judges of this State to ignore a federal court injunction and a Supreme Court decision.
When the Supreme Court of the United States issues a decision calling into question prior decisions of state courts, those prior state court decisions generally are not reopened. The same is true if this Court issues a decision calling into question its own past judgments or past judgments of lower courts. Any new issues are resolved in new litigation, if that is allowed under law. Post-decision filings, other than an application for rehearing, do not demand the use of time and judicial resources by this Court. Cases must end, even if the law later changes. Our decision today refuses to grant the reliefrequestedandshouldnot be construed to mean anything else. 48

Obergefe/1, which the federal courts would have certainly enforced over the protestations of this Court.
We have now been invited to order Alabama's probate court judges to violate a federal court injunction. Even if this Court had the authority or the inclination to issue such an order, which it does not, the order would accomplish nothing because, if our probate court judges actually followed such an order, their defiance of the federal court injunction would subject them to punitive fines, fees, and sanctions by the federal government, the price ofwhich would have to be paid - at least in part- by the taxpayers and would not stop the enforcement of the federal court decisions. Further, such a course ofaction would damage the institution of the Alabama Supreme Court and the rule of law, and it would not stop the issuance of federally mandated same-sex governmentmarriage licenses.

Those requests- whether so intended--opened the door for additional opinions to be issued by any Justice of this Court wishing to expound on Obergefell. For the reasons explained above, I saw no need for this Court to respond to the resulting requests, and this Court correctly took no action.
*55 However, on January 6, 2016, ChiefJustice Moore, who until now has not voted in this case, issued an "administrative order" directing probate courtjudges to take a course ofaction contrary to the federal court injunction against them. 49 This action on his part, which I view as unauthorized, 50 now requires a response by this Court to the petitioners' requests for clarification.
II. This Court cannot stop afoderal court action
A decision by this Court cannot stop the issuance of federally mandated same-sex government-marriage licenses; as I have previously expressed, this Court has never been in a position definitively to rule on whether Alabama's laws prohibiting same-sex government-marriage licenses were constitutional. Ex parte State ex rei. Alabama Policy Inst., (No. 1140460, February 13, 2015) (order calling for answers and briefs) (Shaw, J., dissenting), 51 and API, - So.3d at - - (Shaw, J., dissenting). As is now demonstrated, Alabama's probate court judges have always been subject to a federal court action, and the rulings ofthe federal district court have always had the potential of being underpinned by the decision in

A. All courtsfollow United States Supreme Court decisions
It has long been understood in American jurisprudence that the decisions ofthe Supreme Court of the United States are to be followed by lower courts. Obergefe/1 has been decided, and, as this Court has previously acknowledged: "Under Article VI of the United States Constitution, we are bound by the decisions of the United States Supreme Court." Ingram v. American Chambers Life Ins. Co., 643 So.2d 575, 577 (Ala.1994). It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. I (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions. 52
*56 The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefe/1 decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,' " " 'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican

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form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil." - So.3d at - -, - -. They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreedwith their rationales.
I would further suggest that the idea that a decision of the Supreme Court does not have application outside the parties to that particular case or outside the federal circuit from which it originated 53 is, to be blunt, just silly. 54 A statement by a high court as to how that court would rule in every case is one of the very basic definitions of "law": lower courts follow higher court decisions because they know they will be reversed by the higher court ifthey do not. The people,judges, and lawyers, in turn, rely on those decisions as statements of the "law." People do not need to have the Supreme Court of the United States rule against them individually to know what that Court considers legal or constitutional. It is, to say the least, rather nonsensical judicial hairsplitting to suggest that the law has no application to people because they never had a court specifically render a judgment against them on that particular issue. Do we really think that it makes a difference that Obetgefell did not originate in Alabama or that Alabama probate court judges were not parties to it? This peculiar argument, raised in the context of such strong opposition to Obergefell, simply looks like an excuse to avoid a court decision because one disagrees with it.
Conjuring up specious arguments to contend that the courts of this State suddenly do not have to follow the Supreme Court -despite doing so for nearly 200 years-is embarrassing. It does nothing but injure public confidence in the integrity and impartiality of the judiciary.
I further reject any implication that the dissenting Justices in Obergefell have "intimate[d]" or implied that the decision should be defied. I note that in Davis v. Miller (No. 15- A250, August 31, 2015), a Kentucky state official, Kim Davis, applied in the Supreme Court of the United States for a stay of an injunction that required her to issue federally mandated same-sex government-marriage licenses. The application was denied without any written dissents. If the dissenting Justices in Obergefell were sending coded messages to invite state officials to defy Obergefell, then would they have not at least

issued dissents to denying relief to Davis, who was such a state official? 55
*57 At least one Justice who dissented in Obergefe/1 has previously suggested that when a judge disagrees with the law, defiance is not an option. Justice Antonin Scalia, in an article titled "God's Justice and Ours," First Things (May 2002), discussed the options of a judge morally opposed to the death penalty but called upon to rule in such a case:
"I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty-and if that fails, lead a revolution. But rewrite the laws he cannot do."
If a judge fmds that he or she cannot abide by a controlling decision of a higher court, then that judge should resign from office. He or she should not indulge in the pretense that rebelling against a superior court's decision is an accepted judicial response. Such conduct does not show respect for or comply with the law; it does not promote public confidence in the integrity or impartiality ofthe judiciary. Instead, I believe that defiance would bring the judicial office into disrepute.
Additionally, I find curious this idea put forth by ChiefJustice Moore that " 'the judges in every state' " may personally weigh the correctness of any Supreme Court decision and, if they disagree with it, then they may ignore it. - So.3d at - -. If this were indeed the case, the Constitution would in no way be protected; instead, it would mean that there would be a different Constitution for every judge based on varying legal opinions. In McDonald v. Chicago, 561 U.S. 742 (2010), a mere "five Justices" of the Supreme Court held that the restriction in the Second Amendment on the federal government's infringing on the right to keep and bear arms also, through the Fourteenth Amendment, restricted the states. I obey that decision, and not simply because I happen

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to agree with it. If I did not agree with it, I would still reject the argument that such disagreement would give me the 1I° cense to I0 gnore I0 t. 56 Further, this Court recently held that an Alabama Code section that banned the possession of a pistol on the property of another violated the Constitution. Ex parte Tulley, [Ms. 1140049, September 4, 2015] - So.3d - (Ala.2015). If the lower court judge, in his "legal opinion," disagrees with the "five lawyers" who concurred with this Court's "opinion that purports to interpret" the Constitution, may he ignore it, lest he "betray" his "oath and blatantly disregard the Constitution"? - So.3d at - -. I think that this Court's reaction to such defiance would swiftly squash any such notion.

do in this case. Even if this Court were to right now reject the Supreme Court's longstanding role as the fmal arbiter of tlte meaning of the Constitution and purport to defy its decision in Obergefe/1, Alabama's probate court judges are still subject to a lawsuit in a federal district court that would not give a whit about tltis Court's actions. In any event, if anyone believes that this Court can issue a ruling on tltese requests that would allow our probate court judges to legally continue Alabama's prohibition on the issuance of same-sex government-marriage licenses, such belief is refuted by 200 years of law and practice. We can express our well founded frustration at tlte unprecedented nature of Obergefe/1, but we cannot stop its effect. Judges should not lead tlte people of tltis State to believe otheiWise.

B. This Court's opinion ofthe correctness ofObergefell is not material to our probate courtjudges
*58 Whether this Court defies the Supreme Court does not matter, of course, because it is not Obergefe/1 that truly controls the probate court judges of this State. Instead, those probate court judges are bound by a federal court injunction that was issued pursuant to a federal statute, 42 U.S.C. § 1983, before Obergefel/ was even decided. Article VI of the Constitution, the "Supremacy Clause," states that "the Jaws
of the United States" trump state law: "This Constitu~ion,
and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws ofany State to the Contrary notwithstanding." So, even if one believes the notion that a Supreme Court decision is not a "law" the Supremacy Clause requires state judges to obey, the federal statute pursuant to which the federal court injunction was issued against Alabama probate court judges still trumps a contrary order by this State Court. When our probate court judges are faced with conflicting federal and state court orders- here a federal injunction issued pursuant to § 1983, and directed to parties in that case, versus this Court's writ of mandamus- the federal court's order controls. This is why no probate court in this State is currently complying with API or the ChiefJustice's January 6 administrative order and issuing governmentmarriage licenses to opposite-sex couples but not to samesex couples. Is it seriously to be suggested that a decision by the Supreme Court of Alabama issued on its own volition can override the decision in a federal court action where the parties are under the jurisdiction ofthe federal court? Perhaps it distracts too much from the rhetorical points about defying Obergefell to admit that the probate court judges still have to comply with the federal court injunction, no matter what we

III. Challenges to Obergefell cannot come from this Court
The debate over tlte legal and moral propriety of samesex government marriage will certainly continue; but tltat debate has necessarily shifted to the court of public opinion. The issue, for all practical purposes, is now a political one. The genius of our Founding Fatlters is reflected in our constitutional form of government, which dictates tltat whetlter Obergefell stands tlte test of time or ultimately finds itself cast upon the trash heap of history depends upon the people of tlte United States, who serve as tlte ultimate repository of political power and whose collective voices can be heard tltrough their elected representatives at both tlte federal and state levels. See U.S . Const., art. V (setting out tlte procedure for amending tlte Constitution). If tltere is to be a showdown with respect to this issue, it could never have been led by this Court. Such a showdown must pit the judicial will of the highest court in tlte land against the greater political will oftlte people of this country.
*59 "To every tlting there is a season, and a time to every purpose under the heaven ... a time to keep silence, and a time to speak...." Ecclesiastes 3: 1- 7. In accordance witlt my views concerning tltis Court's lack ofjurisdiction, I believe tltat this Court should have dismissed this case at tlte outset; however, it is now time for the people to speak their conscience on the issue of same-sex government marriage, ifthey so choose.
Chief Justice Moore and Justice Parker have assumed for tltemselves the mantle of authority to declare a decision of tlte Supreme Court oftlte United States an illegitimate nullity. Justice Parker goes further to declare tltat the rule of law is dead. These are bold declarations from "two lawyers" sitting

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on a court subject to the decisions of that higher court. To me, the irony of doing this while failing to address this Court's own lack ofjurisdiction and its failure to follow its own well established rules of review is inescapable.
Equally troubling to me are the veiled criticisms directed toward other Justices of this Court-quoted above- who, despite principled reservations to the contrary, might follow well recognized, uncontroversial precedents that require the acknowledgment of the binding impact of Obergefell on lower courts. I cannot speak for all judges who understand that the rule of law expressed by a court of competent jurisdiction, and not the contrary opinion of a lower court judge, is the bedrock upon which our legal system was established and upon which its stability depends. I can say, however, that I have proudly fulfilled my oath of office since the day the people ofAlabama first honored me in 2001 with the title "Judge" and placed on me the great responsibilities that go along with that title and that I have spent over 31 years in the service ofmy State striving to vindicate the rule oflaw and not to legislate from the bench. I am certainly no apologist for the Supreme Court of the United States, whose decisions have sometimes confounded me over the years. 57 But there is ·a right way and a wrong way under Alabama law and the United States Constitution for that Court's decisions to be questioned and addressed. Judges should act like judges, not frustrated policymakers, or, as Justice Scalia has suggested, they should resign on principle. Failure to do either, in my opinion, degrades public confidence in the judiciary.
IV. ChiefJustice Moore's statement ofnonrecusal
Normally, the Justices of this Court would not comment on another Justice's reasons for declining to recuse himself or herself in a case. That is a matter for the recusing Justice's conscience, and unlike the federal courts, 58 this Court has no mechanism for disqualifying one of its own members. However, Chief Justice Moore has used my name and my rationale in Ex parte Hinton, 172 So.3d 348 (Ala.2012), as support for the position he takes in his statement of nonrecusal. I am thus compelled to take the unusual step of disassociating my prior words from his current position.
*60 Chief Justice Moore notes that he issued an administrative order on February 8, 2015, instructing the probate court judges that they were not required to comply with certain federal court injunctions in cases in which they were not named parties. In this case, one of the prior issues

raised was whether the probate court judges were required to adhere to that administrative order.
In Hinton, I noted that there exists a reasonable basis to question a judge's impartiality when he sits in appellate review of his decision as a lower court judge. Chief Justice Moore states that, for an analogous reason, he declined to vote in the previous orders in this case because his February 8, 2015, order "addressed the issue whether probate judges in Alabama were bound by" certain federal court injunctions, which was one of the issues raised in the case. - So.3d at
I noted in Hinton that the requirement to recuse one's self did not apply when the issues in the new case were not the same as the issues in the prior case the judge had addressed. Chief Justice Moore states that the issue addressed in his February 8 order- whether the probate court judges were bound by certain federal court orders- was "mooted" by this Court's decision in API. The ChiefJustice states that there now exists a "new " issue: "[T)he effect of Obergefell on this Court's mandamus order [the APIdecision] that the probate judges are bound to issue marriage licenses in conformity with Alabama law." The "issue now before the Court," he says, " 'does not involve a determination of the correctness, propriety, or appropriateness'" of his February 8 order. - So.3d at - - .
The February 8, 2015, administrative order is not the only order Chief Justice Moore has issued. On January 6, 2016, he issued a second administrative order. While stating in that order that he was "not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court," he went on to make the same arguments he makes in his special writing to explain that Obergefell did not impact this Court's prior decision. He then ordered the probate court judges to continue to apply API. These are the very things the motions before us argue and call upon the Court to address. Whether it can be claimed that the January 6 order did not actually address the same issues is not material; the focus should be on the appearance of impropriety, even if disqualification is not required by law. See Canon 3.C.(I)("A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned ...." (emphasis added)); Hinton, 172 So.3d at 354 ("'[A) reasonable person has a reasonable basis to question the impartiality of a judge who sits ... to review his own decision .... '" (quoting Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir.l978) (emphasis added))). The ethical

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Ex parte State ex rei. A labama Polley Institute, -- So.3d -- (2016)

considerations here involve judicial prudence and discretion,
not technicalities. My statement in Hinton in no way provides
ChiefJustice Moore with justification to participate or vote in this case. Whether any participation or vote by him violates the Canons of Judicial Ethics is an issue I do not address.

BOLIN, J., concurs as to Part II.A. All Citations -- So.3d ---,2016 WL 859009

Footnotes

1

By contrast, Supreme Court Justice Ruth Bader Ginsburg presided at a same-sex wedding while Obergefel/was pending

before the Supreme Court, thus demonstrating her view of the merits of that very case. Maureen Dowd, Presiding at

Same-Sex Wedding, Ruth Bader Ginsburg Emphasizes the Word "Constitution," New York Times, May 18, 2015.

2

The docket sheets for Aereo (No. 1~61) and Scientific-Atlanta (No. 06-43) can be found on the Supreme Court Web

site. See http:/lwww.supremecourt.gov. Copies ofthose docket sheets printed from the Web site are available in the case

file of the clerk of the Alabama Supreme Court.

3

The United States Code, "the official codification of the general and permanent laws of the United States," includes the

Declaration of Independence in the section entitled "The Organic Laws of the United States of America." See Black's

Law Dictionary 1274 (10th ed.2014) (defining "organic law" as "[t]he body of laws (as in a constitution) that define and

establish a government").

4

Sir William Blackstone described as an "aristocracy" that form of government in which the sovereign power "is lodged in

a council, composed of select members." 1 Commentaries *49.

5

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the

people." U.S. Const. amend IX. "The powers not delegated to the United States by the Constitution, nor prohibited by it

to the States, are reserved to the States respectively, or to the people." U.S. Const. amend X.

6

This warning was quoted virtually verbatim in Justice White's majority opinion in Bowers v. Hardwick, 478 U.S. 186, 194

(1986).

7

In a concurring opinion Justice Shaw states that a judge who "cannot abide by a controlling decision of a higher court"

should resign. - So.3d at - -. In support of this assertion, he quotes from an article in which Justice Scalia criticized

Justices on the Supreme Court who let their personal views of the morality of the death penalty override constitutional

and state law to the contrary. Antonio Scalia, God's Justice and Ours, 2002 First Things 123 (May 2002). In Obergefe/1,

a majority of five Justices supplanted state marriage laws with no authority whatsoever in the Constitution. Under Justice

Scalia's logic, the Justices who elevated Obergefell above the Constitution they swore to uphold should themselves

resign, and not state judges who uphold that sacred document.

8

By constitutionalizing attacks on the procreative core of marriage, the Supreme Court has greatly contributed to the

erosion of this institution. See Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972)

(contraception); Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833 (1992) (abortion).

9

The Bible likens marriage to the relationship between Christ and the church. Ephesians 5:22-27. The Obergefell majority

creates an unnatural form of marriage whose participants delight in "vile affections." Romans 1:26.
10 Justice Black is describing this philosophy, not agreeing with it. "For myself, I must with all deference reject that

philosophy." Griswold, 381 U.S. at 522 (Black, J., dissenting).

11 Justice Holmes referred to this tendency of the Court to discover constitutional novelties in the Fourteenth Amendment

as "evoking a constitutional prohibition from the void of 'due process of law.'" Baldwin v. Missouri, 281 U.S. 586, 596

(1930) (Holmes, J., dissenting).

12 One may reasonably surmise that in the era of fears about a population explosion, the Court felt that its duty to limit the

reproduction of the masses superseded any fealty to the text of the Constitution. Eisenstadt represented the Court's first

sustained assault on sexual morality and laid the groundwork for future decisions that were consistent with a policy of

reducing population growth, either through abortion (killing the conceived) or homosexuality (promoting nonreproductive

sexuality). In a 2009 interview, Justice Ruth Bader Ginsburg stated: "Frankly I had thought that at the time Roe was

decided, there was concern about population growth and particularly growth in populations that we don't want to have

too many of." Emily Bazelon, The Place of Women on the Court, New York Times Magazine (July 7, 2009).

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13
14 15 16 17 18 19 20 21 22
23
24
25
26 27
28
29 30 31

"By placing a premium on 'recent cases' rather than the language of the Constitution, the Court makes it dangerously simple for future Courts, using the technique of interpretation, to operate as a 'continuing Constitutional convention .' • Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Burger, C.J., dissenting). As two scholars have noted, "[E]stablishing a tradition through reliance on Supreme Court cases is bootstrapping." Nelson Lund & John 0. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L.Rev. 1555, 1610 (2004).
http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf. (On the date this special writing was released, this information could be found at the preceding Web address.)
http://www.nydailynews .com/news/national/tenn--county--clerk-staffresigns-gay-marriage-ruling-article-1 .2281567. (On the date this special writing was released, this information could be found at the preceding Web address.) http://www.foxnews.com /opinion/2015/08/11/chaplains-banned-frompreaching-that-homosexuality-is-sin.html. (On the date this special writing was released, this information could be found at the preceding Web address.) Booth was an abolitionist whom federal authorities charged with assisting in the escape of a captured fugitive slave. The Wisconsin Supreme Court affirmed the issuance of a writ of habeas corpus to release Booth from federal custody. One Justice indeed dissented outright and stated: "Marriage is not only for the parties. Its purpose is to provide children with a safe and stable environment in which to grow. It is the epitome of civilization. Its definition cannot be changed by legalisms." Costanza, 167 So.3d at 624 (Hughes, J., dissenting).
James Iredell's Charge to the Grand Jury, Case ofFries, 9 Fed. Cas. 826, no. 5, 126 (C.C.D.Pa.1799). Iredell served as a Justice of the United States Supreme Court from 1790 to 1799.
"Senators and Representatives [of the United States], and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation
to support this Constitution." U.S. Const., art. VI, 1J 3 (emphasis added).
See Windsor v. United States, 699 F.3d 169, 188 (2d Cir.2012), aff'd, 570 U.S. - - . 133 S.Ct. 2675 (2013) (noting that "same-sex marriage is unknown to history and tradition").
"Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh." Genesis 2:24. "Marriage is honourable in all, and the bed undefiled: but whoremongers and adulterers God will judge." Hebrews 13:4.
http://www.huffingtonpost.com/entry/ruth-bader-ginsburgtk_55b97c68e4b0b8499b18536b. (On the date this special writing was released, this information could be found at the preceding Web address.) Justice Shaw's concurrence reflects his errant judicial philosophy of blind adherence to an unlawful, illegitimate, and unconstitutional decision of the United States Supreme Court. Because Justice Shaw was the only Justice in this case
who declined to affirm the validity of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act
before the United States Supreme Court decision in Obergefe/1, and thereafter recommended to this Court that it take no further official action in this case, even after this Court requested further briefing from the parties, he is understandably upset that this Court now proceeds to act.
"The Emperor's New Clothes," in The Annotated Hans Christian Andersen 3--16 (Maria Tatar ed ., 2008).
Justice Abe Fortas, for example, according to one of his clerks, viewed legal analysis as a "necessary form of packaging that had to be provided for things he wanted to do." Laura Kalman, Abe Fortas: A Biography 271 (1990). After revising one memorandum, Fortas returned it to his clerk with the brief order: "Decorate it." /d. at 271-72. "The United States shall guarantee to every State in this Union a Republican Form of Government...." U.S. Const., art. IV, §4.
Justice Shaw terms my arguments about the scope of federal court decisions "silly" and "nonsensical." - So.3d at - - . His comments demean the office he holds and diminish the dignity of this Court. He fails to distinguish between the scope of a federal court judgment and the precedential effect of a federal court opinion. The first is binding as to the parties; the latter is only precedent for future cases and is legitimately subject to skepticism if it lacks any basis in the Constitution. The doctrine of judicial supremacy, as propounded by Justice Shaw, would remove all moral responsibility from judges, whose sole duty would be to follow the orders of their superiors. Nuremberg has taught the perniciousness of such a doctrine.
"Pro tanto brutum fulmen" means "to that extent," "an empty threat." Black's Law Dictionary 234, 1417 (10th ed.2014).
http://www.lc.org/news room/details/statement-of-kentucky--clerk-kimdavis-1. (On the date this special writing was released, this information could be found at the preceding Web address.)
President Jackson's confrontation with the Supreme Court resulted from that court's holding unconstitutional a Georgia statute that allowed non-Indians to live among Indians only if they got a license to do so and swore an oath of loyalty to the State of Georgia. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 577-78 (1832). Samuel Worcester, a white northern

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Ex parte State ex rei. Alabama Polley Institute,-- So.3d -- (2016)

missionary, was convicted because he refused to do either. The Supreme Court held the Georgia statute unconstitutional, overturned Worcester's conviction, and ordered Georgia to release him. Georgia refused to do so. Tradition has it that President Jackson declared: "John Marshall has made his decision, now let him enforce it." Amy Coney Barrett, Symposium Stare Decisis and Nonjudicial Actors, 83 Notre Dame L.Rev. 1147, 1154 (2008). "Jackson was saved from a direct collision with the Court by the fact that he appeared to lack the authority to act. Timing and a procedural quirk had prevented the Supreme Court from dispatching the federal marshal to execute the judgment, and a federal statute authorized the President to intervene only if the marshal failed.· 83 Notre Dame L.Rev. at 1155.
32 Chief Justice Roberts referred to the Obergefe/1 majority three times as "five lawyers," 576 U.S. at--, 135 S.Ct. at
2612, 2624 (Roberts, C.J ., dissenting), instead of Justices, thus caustically pointing out that the five were not acting in a judicial role.
33 The dissents in Obergefe/1 refer eight times to "unelected" judges. 34 The dissents in Obergefe/1 refer twice to the "unaccountable" judges.
35 Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819, 12 The Works of Thomas Jefferson 137 (Paul Leicester
Forded., G.P. Putnam's Sons, 1905).
36 The historic phrase "a government of laws and not of men· was used by John Adams in the Massachusetts Declaration
of Rights, pt. 1, art. 30. The State of Alabama adopted John Adams's provision almost verbatim in Art. Ill, § 43, Ala. Const.1901, thus incorporating this phrase into our organic law.
37 Despotism has been defined as "[a]bsolute power; authority unlimited and uncontrolled by men, constitution, or laws, and
depending alone on the will of the prince ...." 1 N. Webster, An American Dictionary of the English Language 59 (1828) (emphasis added).
38 Tyranny has been defined as "[a]rbitrary or despotic exercise of power; exercise of power over subjects and others with
a rigor not authorized by law or justice, or not requisite for the purposes of government." 2 N. Webster, An American
Dictionary of the English Language 99 (1828).
39 Montesquieu was the most frequently cited source in the establishment of the three branches of government. Matthew
P. Bergman, Montesquieu's Theory of Government and the Framing of the American Constitution, 18 Pepp. L.Rev. 1, 24 (1990). "Among the delegates to the Convention, Montesquieu's writings were taken as 'political gospel.' Many such delegates read Montesquieu as preparatory material. Indeed, besides studying Montesquieu himself, Madison translated sections of The Spirit of the Laws for George Washington . Washington's notes reveal that he also studied Montesquieu in preparation for the Convention." /d.
40 Matthew J. Franck, "Introduction to the Transaction Edition," Edward S. Corwin, The Doctrine of Judicial Review: Its
Legal and Historical Basis and Other Essays, at xxi n.46 (Transaction Publishers, 2014) (citing EdwardS. Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L.Rev. 643 (1909)).
41 Franck, supra, at xxi n.45 (citing EdwardS. Corwin, The Supreme Court and Unconstitutional Acts of Congress, 7 Mich.
L.Rev. 606 (1906)).
42 Ronald Reagan speech "A Time for Choosing" (also known as "A Rendezvous with Destiny"), October 27, 1964.
43 The Federalist No. 78, at 404 (Alexander Hamilton) (George W. Carey and James McClellan eds., Uberty Fund, 2001 ). 44 Indeed, state courts often, as here, are the ones left with the task of enforcing whatever is left of state law in the aftermath
of a decision such as Obergefe/1 v. Hodges, 576 U.S.--. 135 S .Ct. 2584 (2015). See Ex parte State of Alabama ex ref. Alabama Policy lnst., [Ms. 1140460, March 4, 2016]-So.3d - - . - - (Ala.2015)(Bolin, J., concurring specially, Part II); Ex parte State of Alabama ex ref. Alabama Policy lnst., [Ms. 1140460, March 3, 2015]- So.3d - - , - n.19 and accompanying text (Aia.2015); see also Ex parte Davis, [Ms. 1140456, Feb. 11, 2015]- So.3d - - , - (Aia.2015) (Murdock, J., concurring specially).
45 Man can recognize, for example, the presence of oxygen in the atmosphere. He can affirm that oxygen is a good thing,
and perhaps even maintain vegetation to encourage its production. But man can not change what oxygen is. Man might declare that henceforth oxygen atoms will have some different number or arrangement of protons, neutrons, and electrons, but that will not make it so. Nature has made oxygen as it is; it has made marriage as it is.
As John Finnis put it:
"[L]aw is both secondary or even subordinate to, while regulating, other social institutions which it does not institute, whether they be reasonable and good (like proper forms of marriage
and family, or less ambitious kinds of promising, not to mention religious communities and
practices), or unreasonable, vicious, and harmful (like prostitution, slavery, or the vendetta). We
should not imagine that market institutions or marriages or corporations await the emergence of
'power-conferring' rules of law. Legal rules are often ratificatory and regulative rather than truly

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46 4 7
48
49
50 51

constitutive, whatever their legal form and their role in creating the law's versions of the social practices and institutions upon which it, so to speak, supervenes."
John Finn is, Philosophy of Law: Collected Essays: Vol. IV 118 (Oxford Univ. Press 2011 ). This Court's decision applied only where probate court judges were not under a federal court injunction. Specifically, this Court noted that the decision did not apply to Judge Don Davis, who was under a federal court order:
"The final procedural issue we consider is whether the federal court's order prevents this Court from acting with respect to probate judges of this State who, unlike Judge Davis in his ministerial capacity, are not bound by the order of the federal district court in Strawser[v. Strange (Civil Action No. 14-0424-CG-C, Jan. 26, 2015) ]."
- So.3d a t - - (emphasis added). Although this Court could have purported to order Judge Davis to disregard the federal court injunction, it did not do so.
At this time, the issue of how much the taxpayers will have to pay as a result of this litigation is undetermined.
For purposes of this Court's order, no material distinction exists between the "dismissal," as opposed to the "denial," ofthe postjudgment motions and requests. Whether cast as a substantive rebuke on the merits or as the rejection of a request to further consider a concluded case, this Court's order expresses a clear refusal to enter an order defying Obergefe/1.
Furthermore, the issuance of a certificate of judgment, which is also dictated by the order issued today, is a routine administrative task that is normally accomplished automatically by the clerk of the Court and is not voted upon by the Justices. A certificate of judgment in a mandamus matter is generally issued after the application for rehearing has been overruled, which occurred on March 20, 2015. However, because this case was not an appeal, the usual procedures for issuing a certificate of judgment under the Alabama Rules of Appellate Procedure, Rule 41 , were not utilized. It is not clear to me that this Court has a procedure for issuing a certificate of judgment in this type of casean original petition for mandamus relief-or that, because this Court was sitting as a trial court, one is even needed. The issuance of a certificate of judgment is a rote entry. Further, as explained below, it does not, and cannot, mean that the parties in this case may defy Obergefell or any federal court injunction against them. Chief Justice Moore's order stated thatin API this Court "issued a lengthy opinion upholding the constitutionality of Article I, Section 36.03(b), Ala. Const.1901 ('the Sanctity of Marriage Amendment'), and Section 30-1-19(b), Ala.Code 1975 ('the Marriage Protection Act')." He further noted that in AP/this Court stated that" 'Alabama probate judges have a ministerial duty not to issue any marriage license contrary to [the Sanctity of Marriage Amendment or the Marriage Protection Act].' ·in Strawser, the federal court declared§ 36.03 and§ 30-1-19 unconstitutional, declared that the probate court judges were enjoined from enforcing them, and declared that the probate court judges could not deny a license "because it is
prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by ... any injunction issued
by the Alabama Supreme Court [i.e., API,] pertaining to same-sex marriage." Strawser, 105 F.Supp.3d at 1330. The January 6 order "ordered and directed" that "the existing orders of the Alabama Supreme Court [i.e., API,] that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.· Ordering and directing that Alabama probate courtjudges had a "duty not to issue any marriage license contrary to the Sanctity of Marriage Amendment or the Marriage Protection Act" is contrary to the federal district court injunction, which said that the probate court judges could not enforce those provisions. The order did more than address the hypothetical impact of Obergefe/1 on API; it ordered and directed that the probate court judges continue to follow API, a course of action that would be contrary to the federal court injunction. The failure of the order to mention the federal court injunction did not negate that reality. Although the Chief Justice of the Supreme Court has certain authority to perform "administrative tasks," Ala. Const.1901, art. Vi, § 149, it is this Court that possesses the authority to "govern[] the administration of ali courts." Ala. Const.1901, art. Vi, § 150. The Chief Justice does not have the authority, on his or her own, to interpret the substantive legal effect of a decision of this Court and then to seek to enforce that decision against the parties in that action; in this case, it is this Court that possesses the "authority to interpret, clarify, and enforce its own final judgments." State Pars. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000).
I stated:
"In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling ..., which ruling both a federal appellate court and the Supreme Court ofthe United States have refused to stay pending appeal. in my view, the petition does not provide an adequate foundation for reaching such a conclusion."

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Ex parte State ex rei. A labama Po licy Institute, -- So.3d --- (2016)
52 President Abraham Lincoln may have believed that he, as the head of a branch of the federal government, had the right
to disavow a decision of the head of another coordinate branch of the federal government. President Lincoln was not a lower court judge. Further, I would be hesitant to cite President Lincoln as an authority for the idea that the states can rebel against the federal government.
53 To the extent it is suggested that various federal courts have held that Obergefe/1 applied to only certain states, I disagree.
In Wate~ v. Ricketts, 798 F.3d 682,685 (8th Cir.2015), Rosenbrahn v. Daugaard, 799 F.3d 918 (8th Cir.2015), Jernigan v. Crane, 796 F.3d 976 (8th Cir.2015), and Marie v. Mosier, [No. 14-cv-02518-DDC-TJJ, Aug. 10, 2015]- F.Supp.3d - - (D.Kan.2015), the courts stated that Obergefe/1 explicitly applied to the laws of other states only to note that it did not moot the litigation in those underlying cases; nevertheless, those courts specifically held that Obergefe/1 rendered unconstitutional the same-sex government-marriage-license prohibitions they were addressing. To say that these cases somehow indicate that Obergefe/1 does not impact Alabama has no basis.
54 Although Alabama's probate judges are not parties in Obergefe/1, as noted above, they are parties to a lawsuit pending in
a federal court that will enforce Obergefe/1. I find the suggestion that Obergefe/1 somehow does not impact them strange.
55 Recently, the Supreme Court issued a decision with no dissents in James v. City of Boise,- U.S.--, 136 S.Ct.
685 (2016), stating:
"As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court's rulings on federal law, 'the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.' Martin v. Hunter's Lessee, 1 Wheat. 304, 348 (1816).
"The Idaho Supreme Court, like any other state or federal court, is bound by this Court's interpretation of federal law." (Emphasis added.)
56 McDonald was not a decision originating from Alabama. I could not ignore it based on the argument that it did not apply
to Alabama parties or that I remained ignorant of how the Supreme Court would rule on the issue.
57 To this day, I have expressed no opinion with respect to Obergefe/1 or the legality of same-sex government-marriage
. licenses because, given my previously expressed views on this Court's lack of jurisdiction in this case, the law will not · let me. I have made no public comment on a proceeding pending before this Court, which is barred by Canon 3.A.
(6), Alabama Canons of Judicial Ethics ("A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control."), and the Commentary to Canon 2, Alabama Canons of Judicial Ethics ("Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.... He must, therefore, accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."). Further, I have not conducted myself in a manner that calls into question my integrity and impartiality, and I have avoided conduct prejudicial to the administration of justice that would bring the judicial office into disrepute, which are barred by Canon 2.
58 See 28 U.S.C. §§ 351-364.

End of Document

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47

 
 Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

KeyCite Red Flag - Severe Negative Treatment Abrogated by Obergefell v. Hodges, U.S., June 26, 2015
200 So.3d 495 Supreme Court of Alabama.
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. |
March 3, 2015. |
Order Issued March 10, 2015.* |
Order Issued March 4, 2016.
Synopsis Background: Public-interest groups, in name of state, filed emergency petition for writ of mandamus to prohibit all probate judges in state from issuing marriage licenses to same-sex couples.

Petition granted; writ issued.
Main, J., filed an opinion that concurred in part and concurred in the result.
Shaw, J., filed a dissenting opinion, and dissented from order of March 10, 2015.
Moore, C.J., filed a statement of nonrecusal and a specially concurring opinion to order of March 4, 2016, dismissing pending motions and petitions.
Stuart, J., filed a specially concurring opinion, in which Bolin and Main, JJ., concurred, to order of March 4, 2016, dismissing pending motions and petitions.
Bolin, Parker, and Murdock, JJ., filed specially concurring opinions to order of March 4, 2016, dismissing pending motions and petitions.
Shaw, J., filed a specially concurring opinion, in which Bolin, J., concurred in part, to order of March 4, 2016, dismissing of pending motions and petitions.
West Headnotes (22)

Holdings: The Supreme Court held that:

[1]

Mandamus

Public officers

[1] statutes prohibiting issuance of marriage licenses to same-sex couples did not discriminate on basis of gender and thus were not subject to heightened scrutiny;
[2] statutes did not violate equal-protection principles;
[3] statutes did not violate due-process principles;
[4] statutes were not based solely on animus against homosexuals; and, on judge’s motion for extension of time to respond,
[5] extension of time was not warranted, and

Probate judge would be realigned as an additional relator, in proceedings on emergency petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples, even though judge had been initially named as a respondent, where judge filed response specifically requesting that the relief sought in the petition be granted.
Cases that cite this headnote

[6] judge was subject to order directing probate judges not to issue marriage licenses to same-sex couples.

[2] Constitutional Law Marriage and divorce

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1

Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

Marriage and Cohabitation Marriage and Cohabitation
Marriage and Cohabitation Marital Rights, Duties, and Liabilities in
General
Marriage is not a contract within the meaning of the clause of the constitution which prohibits impairing the obligation of contracts; it is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress. U.S.C.A. Const. Art. 1, § 10, cl. 1.
Cases that cite this headnote

[3]

Courts

Courts, judges, and judicial officers, acts and

proceedings of

Supreme Court had subject-matter jurisdiction, pursuant to its power of general supervision and control of inferior courts, to hear emergency petition for writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples; probate judges functioned as courts of inferior jurisdiction with responsibility to administer law in many types of cases, there was a need for immediate, uniform relief among all of state’s probate judges, and no circuit court had jurisdiction over any probate judge outside its territorial jurisdiction. Const. Art. 6, § 140(b); Code 1975, § 12–2–7.

1 Cases that cite this headnote

A mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the state on the relation of one or more persons interested in the performance of such duty to the public.
2 Cases that cite this headnote

[5]

Mandamus

Use of name of state

Petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples was not required to be brought by attorney general, but could be brought by private parties in name of state, since petition did not concern a duty owed to the government as such; duty to issue marriage licenses in accordance with state law was a duty owed to the public for its benefit.

1 Cases that cite this headnote

[6]

Mandamus

Interest in Subject-Matter

Probate judge had standing to litigate emergency petition in Supreme Court seeking writ of mandamus to prohibit probate judges from issuing marriage licenses to same-sex couples; in his official capacity, judge had interest in discharging his ministerial duty in a manner consistent with law, and judge would be required to confront question of validity of same-sex marriages licensed by other probate judges and to address unavoidable derivative questions.

[4]

Mandamus

Use of name of state

Cases that cite this headnote

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

[7]

Courts

Construction of federal Constitution, statutes,

and treaties

Courts

Courts, judges, and judicial officers, acts and

proceedings of

Decision of federal district court, determining that statutes prohibiting issuance of marriage licenses to same-sex couples violated equal-protection principles, was not controlling authority on state Supreme Court and did not preclude Supreme Court from issuing writ of mandamus prohibiting state probate judges from issuing marriage licenses to same-sex couples.
U.S.C.A. Const.Amend. 14; Const. Art. 1, §
36.03; Code 1975, § 30–1–19.

nonparties.
Cases that cite this headnote
[10] Courts Decisions of United States Courts as
Authority in State Courts
In determining federal common law, the Alabama Supreme Court defers only to the holdings of the United States Supreme Court and its own interpretations of federal law; legal principles and holdings from inferior federal courts have no controlling effect, although they can serve as persuasive authority.

4 Cases that cite this headnote

2 Cases that cite this headnote

[8]

Courts

Decisions of United States Courts as

Authority in Other United States Courts

A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.

Cases that cite this headnote

[11] Courts Nature of judicial determination
Courts Construction of federal Constitution, statutes,
and treaties
In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy, for both sets of courts are governed by the same reviewing authority of the United States Supreme Court.

[9]

Courts

Decisions of United States Courts as

Authority in Other United States Courts

Courts

Decisions of United States Courts as

Authority in State Courts

Federal district court decisions cannot clearly establish the law because, while they bind the parties by virtue of the doctrine of res judicata, they are not authoritative as precedent and therefore do not establish the duties of

Cases that cite this headnote
[12] Courts Decisions of United States Courts as
Authority in Other United States Courts Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions; indeed, such results were contemplated by the federal system, and neither sovereign is required to, nor expected to, yield to the other.
Cases that cite this headnote
[13] Constitutional Law Equal protection
Constitutional Law Statutes and other written regulations and
rules
For purposes of an equal-protection challenge to a statute, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[14] Constitutional Law Equal protection
Constitutional Law Economic or social regulation in general
When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude, and the constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. U.S.C.A. Const.Amend. 14.

Race, national origin, or ethnicity
When a statute classifies by race, alienage, or national origin, these factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy, a view that those in the burdened class are not as worthy or deserving as others; for these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny in an equal-protection challenge and will be sustained only if they are suitably tailored to serve a compelling state interest. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[16] Constitutional Law Marriage and civil unions
Marriage and Cohabitation Sex or Gender;  Same-Sex Marriage
Statutes prohibiting issuance of marriage licenses to same-sex couples did not discriminate on basis of gender, and thus were not subject to heightened scrutiny for purposes of determining whether statutes violated equal-protection guarantees; all men and all women were equally restricted to marriage between the opposite sexes. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 36.03;
Code 1975, § 30–1–19.
Cases that cite this headnote

Cases that cite this headnote
[15] Constitutional Law Alien status
Constitutional Law

[17] Constitutional Law Marriage and civil unions
Marriage and Cohabitation Sex or Gender;  Same-Sex Marriage
Rational basis existed for statutes prohibiting issuance of marriage licenses to same-sex

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

couples, and thus statutes did not violate equal-protection guarantees; statutes were rationally related to legitimate government interest in recognizing and encouraging the ties between children and their biological parents. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 36.03; Code 1975, § 30–1–19.
Cases that cite this headnote

partners for disfavored status, but served legitimate purposes including protecting children produced in opposite-sex relationships, fashioning a system for parental legal responsibilities, encouraging family structure, and enabling formative education and socialization of children. U.S.C.A.
Const.Amend. 14; Const. Art. 1, § 36.03;
Code 1975, § 30–1–19.

Cases that cite this headnote

[18] Constitutional Law Same-sex marriage
Marriage and Cohabitation Sex or Gender;  Same-Sex Marriage
Statutes prohibiting issuance of marriage licenses to same-sex couples did not violate due-process principles, since statutes did not interfere with any fundamental rights; fundamental right to marry was limited to traditional opposite-sex marriage since same-sex marriage was not a deeply rooted tradition, there was no fundamental right to obtain state approval of one’s sexual relationships, there was no fundamental right to marry a person one loved regardless of the gender of that person, and there was no fundamental right to enjoy the dignity of having the status of a married person. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 36.03; Code 1975, § 30–1–19.
Cases that cite this headnote
[19] Constitutional Law Same-sex marriage
Marriage and Cohabitation Sex or Gender;  Same-Sex Marriage
Statutes prohibiting issuance of marriage licenses to same-sex couples were not based solely on animus against homosexuals, and thus did not violate due-process principles; statutes were not intended to single out same-sex

[20] Courts In issuance of writs
Marriage and Cohabitation Sex or Gender;  Same-Sex Marriage
Marriage and Cohabitation Duties of officers in general
Extension of time was not warranted for probate judge to comply with Alabama Supreme Court’s order, on grant of emergency petition by public-interest groups for writ of mandamus to prohibit all probate judges in state from issuing marriage licenses to same-sex couples, directing probate judge to advise Court as to whether he was bound by any existing federal court orders regarding issuance of same-sex marriage licenses other than the four same-sex marriage licenses probate judge was ordered to issue in prior federal court case, even though probate judge had asked for a ruling as to that question from Judicial Inquiry Commission (JIC) and requested that federal court stay its order enjoining probate judge from refusing to issue the four marriage licenses; inquiry regarding whether probate judge was bound by any existing federal court orders was a factual one, task of reading order enjoining probate judge from issuing licenses was task for the Court, not the JIC, and there was no showing that federal court order for which probate judge sought stay was one that had not already been executed.
Const. Arts. 1, § 36.03, 6, § 156; Code 1975, § 30–1–9.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752
3 Cases that cite this headnote

[21] Courts Courts, judges, and judicial officers, acts and
proceedings of Courts
Restraining Particular Proceedings Marriage and Cohabitation
Sex or Gender;  Same-Sex Marriage Marriage and Cohabitation
Duties of officers in general
Probate judge, who was enjoined by federal court order from refusing to issue marriage licenses to four same-sex couples involved in federal case, was subject to Alabama Supreme Court’s order granting emergency petition by public-interest groups for writ of mandamus to prohibit all probate judges in state from issuing marriage licenses to same-sex couples; federal court order granted injunctive relief against probate judge only as to same-sex couples who were plaintiffs in federal case, couples in federal case sought relief only on their own behalf, and inclusion of probate judge in Supreme Court’s order was necessary and appropriate to the end of achieving order and uniformity in the application of state marriage laws. Const. Art. 1, § 36.03; Code 1975, § 30–1–9.
2 Cases that cite this headnote
[22] Federal Courts Nature of dispute;  concreteness
Judgment Mutuality of estoppel in general
Federal jurisprudence contemplates that federal court decides only the case before it, in turn binding parties before the court only with respect to other parties in the case.
Cases that cite this headnote

Attorneys and Law Firms
*499 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.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

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.
Opinion

PER CURIAM.

**1 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 *500 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
**2 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 *501 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

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

court’s order, Attorney General Strange has refrained from taking any other official acts in conflict with those orders.
**3 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

(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).

“ ‘[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)

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 *502 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 issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples.
**4 Also on February 9, 2015, the plaintiffs in Searcy I filed a motion seeking to hold Mobile Probate Judge Don Davis in contempt for “fail[ing] to comply with [the federal district court’s] January 23, 2015 Order.” The federal district court denied the motion, stating:
“Probate Judge Don Davis is not a party in this case and the Order of January 23, 2015, did not directly order [Judge] Davis to do anything. Judge Davis’s obligation to follow the Constitution does not arise from

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

this court’s Order. 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.”
(Footnote omitted.)
On February 10, 2015, the federal court granted the plaintiffs’ motion in Strawser to amend their complaint to add three additional same-sex couples as plaintiffs and to add Judge Davis as a defendant. On February 12, 2015, the federal district court entered an order requiring Judge Davis to issue marriage licenses to each of the four couples named as plaintiffs in that case.
As noted, on February 11, 2015, API and ACAP filed their petition. On February 13, 2015, this Court ordered answers and briefs in response to the petition, “as to the issues raised by the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition.” On February 18, 2015, the named respondent probate judges and Probate Judges Don Davis and John E. Enslen filed their respective responses to the petition.
In his response, Judge Davis “moved this ... Court to enter an Order that the Emergency Petition for Writ of Mandamus filed on February 11, 2015, with this Court does not apply to [him] due to changing circumstances that are not reflected in the Mandamus Petition.” He states that the petition does not apply to him because he is a defendant, in his official capacity as probate judge, in Strawser, and he has been “enjoined from refusing to issue marriage licenses to the plaintiffs [in that case] due to the Alabama laws which prohibit same-sex marriage.”
[1] For his part, Judge Enslen stated in his response that he “has thus far refused to issue same sex marriage licenses.” Judge Enslen expressly requested that this Court “by any and all lawful means available to it, protect and defend the sovereign will of the people of the State of Alabama as expressed in the Constitution of the State of Alabama, as amended.” We treat Judge Enslen’s response as a

motion to join this proceeding in the place of one of the “Judge Doe” respondents, and we grant that motion.
*503 **5 Also, in light of the fact that the legal positions of API, ACAP, and respondent Judge Enslen are clearly aligned, we hereby modify the record to reflect that alignment.2 Judge Enslen has been realigned as an additional relator seeking an order from this Court requiring, among other things, that Alabama probate judges continue to perform their duty in accordance with Alabama law. API, ACAP, and Enslen are hereinafter collectively referred to as “the relators.”
The relators assert that Alabama’s probate judges have a ministerial duty to follow Alabama law limiting marriage to a union of one man and one woman. In contrast, the respondents contend that granting the relief the relators request necessarily would require this Court to determine the validity of that law when tested against the United States Constitution because there would be no ministerial duty of the nature asserted if the law is unconstitutional.
The ministerial duty of probate judges in Alabama is, of course, a function of Alabama law, which probate judges swear by oath to support, except to the extent that that duty may be altered or overridden by the United States Constitution, to which they likewise swear an oath. Before the federal district court issued its decisions in Searcy I and Strawser, the named respondents and all other probate judges in this State were performing their ministerial duty in accordance with the express provisions of the Act and the Amendment. They did so even though numerous federal courts had already declared other states’ laws limiting marriage to opposite-sex couples to be
unconstitutional. See, e.g., Bostic v. Schaefer, 760
F.3d 352 (4th Cir.2014); Baskin v. Bogan, 766 F.3d
648 (7th Cir.2014); Latta v. Otter, 771 F.3d 456 (9th
Cir.2014); and *504 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014). The respondents stopped following Alabama law, however, following the Searcy I and Strawser decisions. Clearly, the respondents, who were not bound by the federal district court’s decision, assumed a new position as to the nature of their duty in accordance with the position taken by the federal district court. Therefore, in order to determine whether the respondents are correct to now treat their ministerial duty as being altered or overridden by the United States Constitution, we must examine the reasoning of the federal district court’s decision in Searcy I, which triggered their change of position. Absent our doing so, we cannot resolve the

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

dispute that exists in this adversarial proceeding; we cannot provide the relators the relief that they request and that the respondents oppose. It would not be enough for this Court merely to order that the respondents “follow their ministerial duty.” Such an order would beg the question whether they are or are not doing so at the present time, the very question the parties contest. Accordingly, in order to resolve the dispute before us and to discharge the supervisory duties and responsibilities imposed upon this Court by law, we must address that question.

L.Ed. 654 (1888). It “creat[es] the most important relation in life, ... having more to do with the morals and
civilization of a people than any other institution.” Id. at 205.
“ ‘[Marriage] is not then a contract within the meaning of the clause of the constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.’ ”

I. The Significance and Meaning of Marriage **6 [2] The family is the fundamental unit of society. Marriage is the foundation of the family. There is no institution in a civilized society in which the public has any greater interest.
“The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society.”

Id. at 211–12 (quoting Adams v. Palmer, 51 Me. 480, 484–85 (1863)).
“[M]arriage is a contract sui generis, and the rights, duties, and obligations which arise out of it, are matters of so much importance to the well-being of the State, that they are regulated, not by private contract, but by the public laws of the State, which are imperative on all, who are domiciled within its territory.”

Joseph Story, Commentaries on the Conflict of Laws Foreign and Domestic § 109 (3d ed. 1846).

Story, supra, at § 111.

“[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”
Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31

According to one observer, marriage is a “prepolitical” “natural institution” “not created by law,” but nonetheless recognized and regulated by law in every culture and, properly understood, an institution that must be preserved as a public institution based on the following rationale: “The family is the fundamental unit of society.... [F]amilies ... produce something *505 that governments need but, on their own, they could not possibly produce: upright, decent people who make honest law-abiding, public-spirited citizens. And marriage is the indispensable foundation of the family.” Robert P. George, Law and Moral Purpose, First Things, Jan. 2008; see also Sherif Girgis, Robert P. George & Ryan T. Anderson, What is Marriage?, 34 Harv. J.L. & Pub. Pol’y 245, 270 (2011)

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

(discussing the bases for laws supporting “conjugal” or “traditional” marriage and noting that “[m]arriages ... are a matter of urgent public interest, as the record of almost every culture attests—worth legally recognizing and regulating. Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for each other.... In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability.”).
Thus it is for the stability and welfare of society, for the general good of the public, that a proper understanding and preservation of the institution of marriage is critical. It is the people themselves, not the government, who must go about the business of working, playing, worshiping, and raising children in whatever society, whatever culture, whatever community is facilitated by the framework of laws that these same people, directly and through their representatives, choose for themselves. It is they, who on a daily basis must interact with their fellow man and live out their lives within that framework, who are the real stakeholders in that framework and in the preservation and execution of the institutions and laws that form it. There is no institution more fundamental to that framework than that of marriage as properly understood throughout history.
**7 In 1885, the United States Supreme Court expressed the axiomatic nature of marriage as follows:
“[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best

guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”
Murphy v. Ramsey, 114 U.S. 15, 45, 5 S.Ct. 747, 29 L.Ed. 47 (1885). See, also, Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 638–39 (1904), describing marriage as “the sacred relation.” Even in decisions suggesting that marriage is simply a “civil status,” courts have recognized “the fair point that same-sex marriage is unknown to history and tradition.” Windsor v. United States, 699 F.3d 169, 188 (2d Cir.2012). As the United States Supreme Court acknowledged in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013):
“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its *506 role and function throughout the history of civilization.”
– –– U.S. at ––––, 133 S.Ct. at 2689 (also noting that “[t]he limitation of lawful marriage to heterosexual couples ... for centuries had been deemed both necessary and fundamental,” id.).
“It is beyond dispute, as the Court of Appeal majority in this case persuasively indicated, that there is

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

no deeply rooted tradition of same-sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman.”
In re Marriage Cases, 43 Cal.4th 757, 866, 183 P.3d 384, 460, 76 Cal.Rptr.3d 683, 773 (2008) (Baxter, J., concurring in part and dissenting in part) (footnote omitted).3

seem to agree in.’—Ruthf. Insts. of Nat. Law, p. 162; 1 Bish. on Mar. and Div. § 3, 29; 2 Kent, 74, 75; 6 Bac. Abr. Bouv. p. 454; 2 Bouv. Law Dict. 12th ed. p. 105.
“Mr. Parsons, referring to the same subject, in a late work of the highest *507 authority, uses like language. He declares that ‘the relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; and some of the questions which it suggests are of great difficulty.’—2 Pars. on Contr. p. 74.”
Goodrich v. Goodrich, 44 Ala. 670, 672–75 (1870).

**8 From its earliest days, Alabama has recognized so-called common-law marriages. See, e.g., Campbell’s Adm’r v. Gullatt, 43 Ala. 57, 69 (1869) ( “[A] marriage good at the common law, is to be held a valid marriage in this State.”). Also from its earliest days, the State has by legislation provided a statutory scheme for the formal licensing and recognition of marriages by the State. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 1 (1823). The present statutorily prescribed scheme for the licensing and solemnization of marriages is found in Chapter 1 of Title 30, Ala.Code 1975. Further, both the caselaw and the statutory law of Alabama incorporate or contemplate the institution of marriage in many areas.
The meaning and significance of marriage as an institution, as prescribed or recognized throughout all of these statutes and all of Alabama’s decisional laws, reflects the truths described above: that marriage, as a union between one man and one woman, is the fundamental unit of society.
As the Alabama Supreme Court stated in 1870:
“Archbishop Rutherford, one of the most able and eminent of the commentators on Grotius, has placed marriage among the natural rights of men. He defines it in these words: ‘Marriage is a contract between a man and woman, in which, by their mutual consent, each acquires a right in the person of the other, for the purpose of their mutual happiness and for the production and education of children. Little, I suppose, need be said in support of this definition, as nothing is affirmed in it, but what all writers upon natural law

II. This Court’s Authority And Responsibility To Act
A. This Court Has Subject–Matter Jurisdiction
[3] As discussed, the federal district court’s order in Searcy I enjoined Attorney General Strange from enforcing the Amendment and the Act, thus effectively preventing the Attorney General from giving much needed advice to Alabama’s probate judges as to their legal duties under the law. The federal district court’s order in Strawser specifically relied upon the legal reasoning set out in Searcy I. Neither order specifically discusses or analyzes the remainder of Chapter 1 of Title 30. Neither order analyzes the import of its approach to the term “marriage” for such related terms as “husband,” “wife,” “spouse,” “father,” and “mother” so entrenched in much of the caselaw and other statutory law of this State. See discussion infra. The probate judges of this State, in both their judicial and ministerial capacities, continue to be bound by that caselaw and by those statutes. Furthermore, 67 of this State’s 68 probate judges are not the subject of any restraint by the federal district court, including as to the interpretation and application of the Act and the Amendment.
Yet there is the federal district court decision. And, in the wake of that decision, the refusal of the federal district court to stay that decision and the unavailability of the Attorney General as a source of guidance, uncertainty has

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

become the order of the day. Confusion reigns. Many judges, including the respondents, are issuing marriage licenses to both same-sex couples and opposite-sex couples. Others are issuing no marriage licenses at all. Still others, like relator Judge Enslen, are issuing marriage licenses only to opposite-sex couples. There is no order or uniformity of practice.
**9 But the problems that lie before us are not limited to the confusion and disarray in the ministerial act of licensing marriages. If the same-sex marriage licenses being issued by respondents and other probate judges are given effect by those judges and their colleagues in other circuits throughout the State, this will work an expansive and overnight revolution in countless areas of caselaw and statutory law that incorporate or contemplate the traditional definition of marriage. To name but a few examples, there is caselaw and/or statutory law that presumes, accommodates, or contemplates man-woman marriage in such wide-ranging areas as the laws of inheritance and the distribution of estates, the administration of estates, postmarital support, custodial and other parental rights as to children, adoption of children,4 dissolution of marriages, testimonial *508 privileges in both the civil and criminal law, certain defenses in the criminal law, interests in land, the conveyance and recording of such interests, compensation for the loss of consortium, and the right to statutory or contractual benefits of many types. Indeed, most of the matters falling within the jurisdiction of the probate courts involve rights that are affected by marital status because of the rights of a spouse or legal preferences given to a spouse or parent.
Section 12–13–1, Ala.Code 1975, states, in part:
“(b) The probate court shall have original and general jurisdiction over the following matters:
“(1) The probate of wills.
“(2) The granting of letters testamentary and of administration and the repeal or revocation of the same.
“(3) All controversies in relation to the right of executorship or of administration.
“(4) The settlement of accounts of executors and administrators.
“(5) The sale and disposition of the real and personal

property belonging to and the distribution of intestate’s estates.
“(6) The appointment and removal of guardians for minors and persons of unsound mind.
“(7) All controversies as to the right of guardianship and the settlement of guardians’ accounts.
“(8) The allotment of dower in land in the cases provided by law.”
Without a clear understanding as to whether a marriage exists, how is a probate court to know whether a same-sex partner must be served with process as a surviving spouse for purposes of a petition to probate a deceased partner’s will; how is the probate court to know whether a same-sex partner has a priority right, as a surviving spouse, to appointment as administrator of a deceased partner’s estate; how is the probate court to know whether a deceased partner has the right of a surviving spouse to an intestate share of the estate, or to homestead allowance, to exempt property, to family allowance, or to other rights of a surviving spouse; and how is the probate court to determine priority rights as to the appointment of guardians and conservators?
And the problems will not be confined to probate courts. Circuit courts must assess marital status in regard to whether to grant a petition for a legal separation or a divorce and in making property divisions *509 and alimony awards. And marital status is part of our law concerning the legitimation of children and paternity, including presumptions as to married persons to whom a child is born, a matter that affects both circuit courts and juvenile courts. Likewise, circuit courts will be confronted with claims of loss of consortium and wrongful-death claims brought on behalf of the heirs of decedents, and all trial courts will have to assess the applicability of evidentiary privileges belonging to a spouse.
**10 The Governor of Alabama recently highlighted in an amicus brief to the United States Court of Appeals for the Eleventh Circuit (filed in support of Attorney General Strange’s request for a stay of the order in Searcy I ) some of the laws and practices that potentially would be affected by a redefinition of marriage:
“[A]ll of the statutes governing marital and domestic relations, Ala.Code Title 30, and the judicial decisions interpreting them; the presumption of paternity,

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

Ala.Code § 26–17–204, and other rules for establishment of the parent-child relationship, Ala.Code § 26–17–201; laws governing consent to adopt, Ala.Code § 26–10A–7(3), and all other laws governing adoption, Ala.Code Title 26, Chapter 10A; termination of parental rights, Ala.Code § 12–15–319; all laws that presuppose different people occupying the positions of ‘father,’ ‘mother,’ ‘husband,’ and ‘wife,’ e.g., Ala.Code § 40–7–17; laws governing intestate distribution, the spousal share, Ala.Code § 43–8–41, and the share of pretermitted children, Ala.Code § 43–8–91; legal protections for non-marital children, Ala.Code § 26–17–202; registration of births, Ala.Code § 22–9A–7, J.M.V. v. J.K.H., 149 So.3d 1100 (Ala.Civ.App.2014); conflict-of-interest rules and other ethical standards prohibiting marital relations,
Ala.Code § 45–28–70(f)(1), Cooner v. Alabama State, 59 So.3d 29 (Ala.2010); and laws presupposing biological kin relations, Ala.Code § 38–12–2.
“This does not include laws governing forms issued by the State that identify mothers, fathers, husband, or wife; tax laws; education curricula; accreditation standards for educational institutions; licensing standards for professions; public accommodations rules; religious liberty protections; health care regulations; and many other areas of law. What are children to be taught in Alabama’s schools about the nature of marriage? How will it be defined in textbooks and other instructional materials? Will all private schools, colleges, and universities be required to go along with the new definition, whatever it is? Will there be moral or religious exemptions for those who perceive inherent differences between marital unions and non-marital unions?”
Every day, more and more purported “marriage licenses” are being issued to same-sex couples by some of the probate judges in this State. Every day, the recipients of those licenses and others with whom they interact may be, and presumably are, relying upon the validity of those licenses in their personal and business affairs. Every probate judge in this State, regardless of his or her own stance on the issuance of such licenses, will soon enough be faced, in his or her judicial capacity, with a universe of novel derivative questions unprecedented in their multiplicity, scope, and urgency. The circuit courts of this State will confront a similar experience.
**11 The probate judges of this State are members of the judicial branch of government. Accepting the position

suggested by all relators and respondents, that insofar as their execution of the authority to *510 issue marriage licenses they function not as courts of inferior jurisdiction, but as executive ministers of the law, the fact remains that each probate judge in this State also functions as a “court of inferior jurisdiction” with responsibility to administer the law in many types of cases. Their ability to do so with any semblance of order and uniformity, with due regard for the lives their decisions impact, and with respect for the law and the constitutions of this State and of the United States, which they have sworn an oath to uphold, is in peril. Indeed, given the disparate views of the law held among these judges, and no doubt the circuit judges as well, we see no way for there to be uniform and even-handed application of the law among the circuits of this State unless and until this Court speaks.
Section 140(b), Ala. Const.1901, states that this Court “shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction.” Section 12–2–7(3), Ala.Code 1975, echoes § 140, stating that “[t]he Supreme Court shall have authority ... [t]o issue writs of injunction, habeas corpus, and such other remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction.” A separate provision of § 12–2–7, subsection (2), provides the following jurisdiction to the Supreme Court: “To exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction.”
Alabama is not alone in its adoption of provisions such as those cited above. “Constitutional or statutory provisions expressly granting to various courts superintending control over inferior tribunals are common, although not universal, in the states of this country.” P.V. Smith, Annotation, Superintending Control Over Inferior Tribunals, 112 A.L.R. 1351, 1352 (1938). The language used by most states in granting courts this power is very similar to the language found in Alabama’s Constitution. Generally, concerning the origin of the superintending control over inferior tribunals, Smith states:
“The following conclusion was drawn by the annotator in 51 L.R.A. 33, loc. cit. p. 111: ‘The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted.’ ”
**12 112 A.L.R. at 1356 (emphasis added). Further,
“[i]n Kelly v. Kemp (1917) 63 Okla. 103, 162 P. 1079, in regard to the constitutional provision vesting the Supreme Court with a general superintending control over inferior tribunals, the court said: ‘This provision placed the Supreme Court in practically the same position with reference to the inferior courts of the State, as that occupied by the court of King’s Bench to the inferior courts of England under the common law, which court, as stated by Blackstone, was vested with power to keep all inferior courts within the bounds of their authority and, to do this, could remove their proceedings to be determined *511 by it, or prohibit their progress below (3 Bl. Com. 42), and that court was also possessed of authority to enforce in inferior tribunals the due exercise of those judicial or ministerial powers which had been vested in them, by restraining their excesses and quickening their negligence and obviating their denial of justice (2 Bl. Com. 111).’ ”
112 A.L.R. at 1356–57 (emphasis added).
“The power of superintending control is not limited by forms of procedure or by the writ used for its exercise.” 112 A.L.R. at 1357.
“Accordingly, in State v. Long (1911) 129 La. 777, 56 So. 884, where it was argued as to the conditions under which writs of certiorari, mandamus, and prohibition might issue, the Supreme Court said that, in the exercise of its supervisory powers, it was not tied down by the provisions of the Code of Practice regarding such writs.
“And in Thomas v. Doughty (1927) 163 La. 213, 111 So. 681, the Supreme Court said: ‘This court, in the exercise of its general supervision and control over inferior courts, is not tied down by forms of procedure, and will look at the substance of the right sought to be vindicated and the need for speedy relief, rather than to the form in which such relief is sought.’

“In Dinsmore v. Manchester (1911) 76 N.H. 187, 81 A. 533, in answer to an objection to the scope of review by the Supreme Court on certiorari under its statutory general superintendence of all inferior tribunals, the court said that it was unimportant that the proceeding was called ‘certiorari,’ and that ‘the superintending power of the court over inferior tribunals does not depend upon, and is not limited by, technical accuracy of designation in legal forms of action.’
“And in Lowe v. District Ct. (1921) 48 N.D. 1, 181 N.W. 92, the Supreme Court said that the nature and extent of its superintending control are ‘not reflected by the name of the writ that has been used for its exercise.’ ”
**13 112 A.L.R. at 1357–58 (emphasis added). See also Thompson v. Lea, 28 Ala. 453, 463 (1856) (Rice, C.J.) (noting that this Court’s appellate jurisdiction and its superintending control over inferior tribunals are “distinct things, and must not be confounded” and stating that “ ‘[a] general superintendence and control of inferior jurisdictions’ is, by the constitution, granted to this court unconditionally. ‘Appellate jurisdiction’ is, by the very terms of the grant, subjected to ‘such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law.’ ” (emphasis added)).
“The generally accepted view is that a court will exercise its superintending control over inferior tribunals only in extreme cases and under unusual circumstances.” Smith, 112 A.L.R. at 1373. This sentiment is consistent with our
Court’s precedent. In Ex parte Alabama Textile Products Corp., 242 Ala. 609, 613, 7 So.2d 303, 306 (1942), this Court exercised jurisdiction over an original action on the ground that the Montgomery Circuit Court could not provide the complete relief necessary, observing that
“the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

where no application can be made to the lower court in time to prevent the consummation of the alleged wrong.”
See also Roe v. Mobile Cnty. Appointment Bd., 676 So.2d 1206 (Ala.1995), overruled *512 on other grounds
by Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057 (1999), in which this Court relied upon the unified nature of our court system and the supervisory authority granted to it under what is now § 140 of our constitution to “reach down” and “pull up” to it the record in a still pending lower court proceeding in order to create a framework for its assessment of a related matter.
The respondents’ briefs focus on Alabama Textile and make three arguments as to why the holding in that case does not support jurisdiction in this Court over the present matter. First, the respondents argue that Alabama Textile involved a petition for a writ of certiorari rather than a petition for a writ of mandamus. The respondents give no explanation, and cite no authority, as to how or why this makes a difference. We cannot see that it does.
Second, the respondents argue that the Court in Alabama Textile determined that it should exercise jurisdiction “because all parties consented to the jurisdiction of the Supreme Court.” This assertion is incorrect. Parties cannot vest this Court with jurisdiction by agreeing that it
has jurisdiction. 242 Ala. at 612, 7 So.2d at 305 (“[T]his Court can only act within the jurisdiction conferred by law, and this cannot be enlarged by waiver or the consent of the parties.”). And the parties did not do so in Alabama Textile. What they did agree to do was to waive the necessity of a writ of certiorari calling up the case for review. But the issue of a formal writ of certiorari is irrelevant here because the present case comes to us as a petition for a writ of mandamus or similar relief. The case therefore is already before us without the necessity of our calling it up from some lower court.5
The third and final argument of the respondents—which they refer to as their “most important[ ] argument”—is as follows: The holding of Alabama Textile has been recognized in subsequent cases, but only as dicta. The fact that Alabama Textile, itself, held as it did, however, is in itself sufficient precedent for the action taken by this Court today. In any event, one would expect that extraordinary circumstances justifying this Court’s action,

rather than action by a circuit court, would be rare. In addition, as the respondents themselves note, the principle recognized by this Court in Alabama Textile has in fact been reiterated by this Court on several occasions, including in this Court’s decision in Ex parte Tubbs, 585 So.2d 1301, 1302 (Ala.1991). See also Denson v. Board of Trustees of the University of Alabama, 247 Ala. 257, 258, 23 So.2d 714, 715 (1945), and Ex parte Barger, 243 Ala. 627, 628, 11 So.2d 359, 360 (1942).
**14 An additional argument that might have been, but was not, made by the respondents is that the probate court, in exercising its authority to issue marriage licenses, acts not as a “court” or a “court of inferior jurisdiction” in relation to this Court, but as an executive minister. API and ACAP themselves cite authority for the proposition that “ ‘[t]he issuance of a marriage license by a judge of probate is a ministerial and not a judicial act.’ ” (Quoting Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896).)
There are several problems with attempting to conclude that this Court lacks *513 jurisdiction on the basis of such a purported distinction in Alabama Textile. First, the respondent in Alabama Textile was not a “court” either. It was the Alabama Department of Industrial Relations, an agency of the executive branch of government. Although its internal procedures for decision-making might have been quasi-judicial in nature, its eventual action or inaction was that of an executive agency, not a court.
It would further appear that the exact nature of the party before the Court in Alabama Textile was of no moment to the Court, and would have been of no moment even if examined more closely, given the provisions of § 12–2–7(2). As noted, that section states simply that the Supreme Court “shall have authority ... [t]o exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction.” The text refers not to writs directed to lower “courts” but to “matters in which no ... court” (other than the Supreme Court) would have jurisdiction. In addition, of course, there is the fact that the writ of quo warranto authorized thereby is not a writ issued only to courts acting as courts, but is in the normal course a writ issued to individuals purporting to hold (or exercise the authority of) offices of all sorts in all three branches of government. In fact, this Court recently exercised its original jurisdiction under § 12–2–7(2) to issue a writ of mandamus to a probate judge in his administrative capacity where no circuit court had the ability to do so.6

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

It is clear that no other court in this State has the jurisdiction to provide the relief necessary in this most unusual of cases. There is a need for immediate, uniform relief among all the probate judges of this State, and no circuit court has jurisdiction over any probate judge outside its territorial jurisdiction. See Brogden v. Employees’ Ret. Sys., 336 So.2d 1376 (Ala.Civ.App.1976) (explaining that the Constitution authorized the Legislature to divide the state into judicial circuits with geographical or territorial boundaries, that within such boundaries each circuit court exercises the authority granted it exclusive of other circuit courts, and therefore the statutory grant to a circuit court of supervisory power over inferior jurisdictions could be applied only to such inferior judicial bodies that sat or acted within the territorial limits of the circuit), cert. denied sub nom., Ex parte State ex rel. Baxley, 336 So.2d 1381 (1976).
**15 Alabama Textile offers a helpful framework for assessing the necessity of action by this Court under § 12–2–7(2) in this case:
“The necessity is not wholly dependent upon whether some court inferior to this has the legal power by certiorari to review the order in question. See Ex *514 parte Boynton, 44 Ala. 261 [ (1870) ]. But the rule observed elsewhere with a similar provision of the constitution seems to be that the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation of the alleged wrong. 14 Corpus Juris Secundum, Certiorari, p. 204, § 57. That authority cites Halliday v. Jacksonville [& Alligator] Plank Road Co., 6 Fla. 304 [ (1855) ]. The report of that case quotes the constitution of Florida in identical language as our section 140, supra, as here material, and observes: ‘It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this Court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment of justice.’ [6 Fla. at 304.]

inferior in grade to us has a like power.
“While we hold that the Circuit Court of Montgomery County may review by appropriate remedial writs the boards and commissions of the State sitting in Montgomery, we also think that this Court may do so when in our judgment it is necessary to afford full relief and do complete justice. An exercise of such discretion will receive more favorable consideration when the interested parties appear and virtually agree that there is such necessity by submitting the cause without making the objection that there is an absence of it. We have the right to determine whether a necessity exists, influenced by the magnitude and importance of the question involved, and the convenience of the parties in presenting it, rather than in first going to the Circuit Court of the county where the board sits.
“On account of the importance of the question here involved, its state-wide application, the need of an early decision, the territorially restricted jurisdiction of the circuit court and the consent of the parties, we have concluded in the exercise of our power and discretion to give consideration to the merits of the question and make decision of it.”
**16 242 Ala. at 613–14, 7 So.2d at 306 (emphasis added).
The “magnitude and importance” of the issue before us is unparalleled. And the “special reasons” that compel us to act are unlike any other in the history of our jurisprudence. Given the textual grant of authority described above, the sui generis nature of this matter, the unprecedented existing and potential confusion and disarray among the probate and other judges of this State, the multiplicity and magnitude of the substantive issues presented, the resulting need for an immediate resolution of this matter, the unavailability in any other court of the immediate statewide relief that is needed, and this Court’s ultimate responsibility for the orderly administration of justice in this State, we are clear to the conclusion that this Court has the authority to act in this matter to maintain and restore order in the administration of our laws by the probate judges and the courts of this State.

“We do not think that the requirement of the Constitution that we shall issue such writs only when necessary to give us a general superintendence fixes an iron-clad rule that we cannot do so when another court

B. This Proceeding Is Between Adverse Parties with

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

Standing
The respondents argue that the relators lack “standing” to bring this action because, *515 they say, the relators have no private interest or private right in the performance by Alabama’s probate judges of their duty to issue marriage licenses only in accordance with Alabama law. The respondents fail to allow for the fact, however, that the present petition is filed in the name of the State for the purpose of securing performance by public officials of a duty owed to the public, not in the name of a private party to enforce a private right or duty.
[4] The rule of public-interest standing, sometimes referred to as the public-interest exception, has been widely and long-recognized. Consistent with this principle, this Court has stated that a relator has standing to bring a petition for mandamus or comparable relief, in the name of the State, seeking to uphold a State statute and to secure performance by respondents of a duty owed to the public.
“It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public....”
Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 213, 54 So.2d 442, 447 (1951); see also Morrison v. Morris, 273 Ala. 390, 392, 141 So.2d 169, 170 (1962) (same); Homan v. State ex rel. Smith, 265 Ala. 17, 19, 89 So.2d 184, 186 (1956) (same). Indeed, this has been well settled in Alabama for over 100 years: “There is no doubt that, where the writ is sued out to require the performance of a definite duty to the public, the proceeding must proceed in the name of the state as plaintiff.” Bryce v. Burke, 172 Ala. 219, 230, 55 So. 635, 638 (1911) (opinion on rehearing).

This Court did not fundamentally change the law of standing in Alabama in 2003 when it adopted the federal formulation of the general standing rule focusing on injury. See Alabama Alcoholic Beverage Control Bd. v. Henri–Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003). Rather, the Court “effectively restated the standard ... using language adopted from the Supreme Court of the United States.” Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004) (emphasis added). The Cedar Bluff Court explained the development as follows:
**17 “In Jones v. Black, 48 Ala. 540 (1872), this Court first articulated a test for determining whether a party has the necessary standing to challenge the constitutionality of an act of the Legislature. We stated then:
“ ‘A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is, or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.’
“48 Ala. at 543. In Alabama Alcoholic Beverage Control Board v. Henri–Duval Winery, LLC, 890 So.2d 70, 74 (Ala.2003), a party challenged the constitutionality of Alabama’s Native Farm Winery
Act, § 28–6–1 et seq., Ala.Code 1975. In that case, this Court effectively restated the standard articulated in Jones, using language adopted from the Supreme Court of the United States:
“ ‘A party establishes standing to bring a challenge [on constitutional grounds] when it demonstrates the existence of (1) an actual, concrete and particularized “injury in fact”—“an invasion of a legally protected interest”; (2) a “causal connection between the injury and the conduct complained of”; *516 and (3) a likelihood that the injury will be “redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).’ ”
904 So.2d at 1256–57 (emphasis omitted).7
By comparing this Court’s own standing formulation from Jones v. Black, 48 Ala. 540 (1872) (focusing on injury), with the adopted, three-pronged formulation from
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

2130, 119 L.Ed.2d 351 (1992) (focusing on injury), the Cedar Bluff Court showed that this was no seismic shift in Alabama standing law. The Court simply used the federal formulation to state its own entrenched standing law more precisely. See Ex parte King, 50 So.3d 1056, 1059 (Ala.2010) (“[I]n 2003 this Court adopted the ... more precise[ ] rule regarding standing based upon the test used by the Supreme Court of the United States.”); Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (“In [Henri–Duval ], this Court adopted a more precise rule regarding standing articulated by the United States Supreme Court.”).
What this Court did not do in Henri–Duval in 2003, and has not done since, is overrule those cases recognizing the equally entrenched standing rule applicable in mandamus cases seeking to compel performance of a public duty. To be sure, the rule is known in the modern law of other states under such labels as the “public-standing exception,” the “public-standing doctrine,” and “public-interest standing,” etc. For example, the Indiana Supreme Court in 2003 concluded, after surveying the laws of numerous accordant states: “The public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve the enforcement of a public rather than a private right, continues to be a viable exception to the general standing
requirement.” State ex rel. Cittadine v. Indiana Dep’t of Transp., 790 N.E.2d 978, 983 (Ind.2003) (emphasis added). In affirming the viability of the rule, the court explained:
**18 “Under our general rule of standing, only those persons who have a personal stake in the outcome of the litigation and who show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct will be found to have standing. Absent this showing, complainants *517 may not invoke the jurisdiction of the court. It is generally insufficient that a plaintiff merely has a general interest common to all members of the public.
“[Relator] seeks to avoid this general rule by invoking the public standing exception. He does not contend that he has suffered a specific injury, but argues that, because the object of the mandate is to procure the enforcement of a public duty, he has standing under Indiana’s public standing doctrine. As we recently
noted in Schloss [v. City of Indianapolis, 553 N.E.2d 1204 (Ind.1990) ]:

“ ‘Indiana cases recognize certain situations in which public rather than private rights are at issue and hold that the usual standards for establishing standing need not be met. This Court held in those cases that when a case involves enforcement of a public rather than a private right the plaintiff need not have a special interest in the matter nor be a public official.’
“ Schloss, 553 N.E.2d at 1206 n. 3 (quoting Higgins [v. Hale], 476 N.E.2d [95,] at 101 [(Ind. 1985) ]). Specifically, the public standing doctrine eliminates the requirement that the relator have an interest in the outcome of the litigation different from that of the general public.
“The public standing doctrine has been recognized in Indiana case law for more than one hundred and fifty years.”
790 N.E.2d at 979–80 (emphasis added; some citations omitted).
More recently, the historical yet still vital “public-interest standing” was invoked in a 2013 New York mandamus proceeding:
“However, in matters of great public interest, a citizen may maintain a mandamus proceeding to compel a public officer to do his or her duty. The office which the citizen performs is merely one of instituting a proceeding for the general benefit, the only interest necessary is that of the people at large. One who is a citizen, resident and taxpayer has standing to bring an Article 78 proceeding for the performance by officials of their mandatory duties, even without a personal grievance or a personal interest in the outcome. The public interest standing of a citizen has been extended to corporations as well as other organizations.
**19 “In fact, as far back as the Nineteenth Century, the Court of Appeals held, the writ of mandamus may, in a proper case, and in the absence of an adequate remedy by action, issue ... on the relation of one, who, in common with all other citizens, is interested in having some act done, of a general public nature, devolving as a duty upon a public officer or body, who refuse to perform it.”
Marone v. Nassau Cnty., 967 N.Y.S.2d 583, 589, 39 Misc.3d 1034, 1040–41 (Sup.Ct.2013) (expressing a limitation of the doctrine to “matters of great public interest ”) (internal quotation marks and citations omitted;

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

emphasis added).
Still more recently, the California Court of Appeal affirmed the vitality of the “public-interest exception”:

“It is true that ordinarily the writ of mandate will be issued only to persons who are beneficially interested. Yet, in [1945, the California Supreme Court] recognized an exception to the general rule where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. The exception promotes the policy *518 of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. It has often been invoked by California courts.”

Hector F. v. El Centro Elementary Sch. Dist., 173 Cal.Rptr.3d 413, 418, 227 Cal.App.4th 331, 338 (2014) (emphasis added; internal quotation marks and citations omitted).

The same rule is found in states throughout the nation. See, e.g., Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 660, 755 S.E.2d 683, 687 (2014) (“ ‘Where the question is one of [a] public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown [to petition for mandamus], but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.’ ” (quoting Ga.Code Ann. § 9–6–24

(West 2014) (emphasis added)));

Protect MI

Constitution v. Secretary of State, 297 Mich.App. 553,

566–67, 824 N.W.2d 299, 306 (2012), rev’d on other grounds, 492 Mich. 860, 819 N.W.2d 428 (2012); ProgressOhio.org, Inc. v. JobsOhio, 973 N.E.2d 307, 313

(Ohio Ct.App.2012); State ex rel. Kansas City Power & Light Co. v. McBeth, 322 S.W.3d 525, 531 (Mo.2010) (“[W]here the duty sought to be enforced is a simple, definite ministerial duty imposed by law, the threshold for

standing is extremely low.”);

Anzalone v.

Administrative Office of Trial Court, 457 Mass. 647,

653–54, 932 N.E.2d 774, 781 (2010); Stumes v.

Bloomberg, 551 N.W.2d 590, 592 (S.D.1996); State ex rel. Clark v. Johnson, 120 N.M. 562, 568–69, 904 P.2d 11, 17–18 (1995); Rogers v. Hechler, 176 W.Va. 713, 348

S.E.2d 299 (1986); Wells v. Purcell, 267 Ark. 456, 461, 592 S.W.2d 100, 103 (1979) (“The rule is well settled, that when ... the proceedings are for the enforcement of a duty affecting not a private right, but a public one, common to the whole community, it is not necessary that the relator should have a special interest in the matter.” (emphasis added)); and Florida Indus. Comm’n v. State ex rel. Orange State Oil Co., 155 Fla. 772, 775, 21 So.2d 599, 600–01 (1945) (“We also said in that case that where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, it being sufficient that he is interested as a citizen in having the law executed and the duty in question enforced.” (emphasis added)).8

Alabama’s public-standing rule, as articulated in Kendrick, contemplates an action in the name of the State, which obviously has standing in its own right. Like the authorities from other states cited above, it *519 respects the injury-in-fact requirement for general standing when a plaintiff seeks in his own name to vindicate his or her private right, while equally respecting the alternative rule (or exception) for cases brought in the name of the State to vindicate the public interest in the enforcement of duties owed to the public rather than to an individual. Several Alabama cases illustrate this fidelity.

**20 First, in Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308 (1962), a clerk of the circuit court petitioned, in his own name, for a writ of mandamus to compel the county sheriff to perform his statutory duty to file written reports with the clerk regarding the prisoners entering and leaving the county jail. The Court held that compliance with the statute was mandatory for the sheriff. 274 Ala. at 185–86, 146 So.2d at 314. But the Court also held that the circuit clerk did not have standing to seek mandamus to

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

compel the sheriff’s performance because the statute conferred no private right on the clerk. 274 Ala. at 186, 146 So.2d at 314. In so holding, the Court distinguished the private standing on which the clerk relied in error from the public standing on which the clerk could have relied:
“We hold that the duty here placed on the sheriff by [the reporting statute] is a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely. Under the settled rule, petition for mandamus to compel a public officer to perform such duty is properly brought in the name of the state on the relation of one or more persons interested in the performance of that duty. The instant petition was not so brought.”
274 Ala. at 186, 146 So.2d at 314–15 (emphasis added). In other words, because the duty involved was owed to the public,9 the clerk did not have a private interest in the matter, and so the action could be brought only as an on-relation action in the name of the State. 274 Ala. at 186, 146 So.2d at 315.

**21 “It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public.”
256 Ala. at 213, 54 So.2d at 447 (emphasis added). Applying the public-standing rule, the Court concluded:
*520 “It is clear that the act which petitioner seeks to have performed does not concern the sovereign rights of the State and is one in which the public, all the people of Jefferson County, have an interest. Petitioner’s right to have the act performed is not dependent upon the fact that he may or may not vote in a voting place where the governing body is required to install a voting machine.”

Second, in Kendrick, a citizen relator, in the name of the State, sued his county commission to force it to provide voting machines for elections in compliance with a State statute. The statute required the county to provide voting machines for all elections in the county, but gave the commission discretion not to provide machines in any precinct having less than 100 registered voters. 256 Ala. at 213, 54 So.2d at 447. The respondents challenged the relator’s petition on the basis that he failed to show the requested relief would redress any injury particular to him, because he failed to show he voted in a precinct entitled to be provided voting machines. Id.
In rejecting the respondents’ challenge to the relator’s standing, the Court cited the public-standing rule:

Id. (emphasis added).
Similarly, in Homan v. State ex rel. Smith, 265 Ala. 17, 18, 89 So.2d 184, 186 (1956), a relator filed an action seeking to force the respondents, all the members of the Board of Commissioners of the Town of Muscle Shoals,
“ ‘to forthwith call an election for and in the Town of Muscle Shoals, a municipal corporation in Alabama, to decide the question whether said town shall be annexed to the City of Sheffield, a municipal corporation in Alabama, and to pass the necessary Ordinance providing for such an election to be held not less than thirty days after the passage of the Ordinance, in accordance with the provisions of Title 37, § 188.’ ”

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

265 Ala. at 18, 89 So.2d at 185. The circuit court granted the petition, and, on appeal, the respondents contended that the relator did not have a sufficient interest in the action. The Homan Court rejected the argument:
“The act sought to be performed does not concern the sovereign rights of the State and is one in which the public, all of the people of the municipalities involved, have an interest. We hold that this mandamus proceeding was properly brought in the name of the State on the relation of J.E. Smith, and that the trial court did not err in overruling motion of appellants to require Smith to show by what authority the suit was filed in the name of the State of Alabama.”
265 Ala. at 19, 89 So.2d at 186 (emphasis added).

**22 In Henri–Duval Winery, L.L.C., 890 So.2d at 74, the plaintiff, a winery, brought an action for its own benefit, not that of the public, to invalidate, not enforce, a statute providing for the taxation of wine sales. A careful reading of the plurality opinion in Ex parte Alabama Educational Television Commission, 151 So.3d 283 (Ala.2013), reveals a similar circumstance. The plaintiffs there sought not to procure an injunction requiring the commission to hold open meetings in the future pursuant *521 to applicable law, something that could benefit the public, but to vindicate a violation of their private rights allegedly stemming from a meeting that had already occurred:
“Applying the Lujan[ v. Defenders of Wildlife, 504 U.S. 555 (1992),] test here, we conclude that Pizzato and Howland do not have standing to bring this action because they have failed to demonstrate ‘a likelihood that [their alleged] injury will be “redressed by a favorable decision.” ’ Henri–Duval, supra. Pizzato and Howland argue that they were injured by the Commission’s termination of their employment and that that ‘termination was the direct result and consequence of the Commissioners’ violation of the Open Meetings Act.’
“....

In Gray v. State ex rel. Garrison, 231 Ala. 229, 231, 164 So. 293, 295 (1935), the Court held that a county commissioner’s statutory duty to sign a warrant on appropriation for a public library was “a legal duty in which there was such public interest as warranted a proceeding by mandamus in the name of the state.” And in Marshall County Board of Education v. State ex rel. Williams, 252 Ala. 547, 551, 42 So.2d 24, 27 (1949), the Court held that a petition for mandamus to a county board of education to compel its performance of a statutory duty to allow school enrollment only to students of a certain age “was for the enforcement of a public duty by respondents and, therefore ... was properly brought in the name of the State on the relation of the petitioners.”
Whereas in Rodgers the petitioner lacked standing to bring the action in his own name because he had no particularized injury (and he failed to invoke public standing through an on-relation action in the name of the State), in each of the other cases discussed above the relator properly invoked public standing. In each, the official duty was imposed by applicable law, and the duty owed was to the public. In particular, the right at issue was not the relator’s private right.

“... [T]he only specific relief Pizzato and Howland requested was the civil fines provided for in § 36–25A–9(g)[, Ala.Code 1975]. Like the injury in
Steel Co. [v. Citizens for a Better Environment, 523 U.S. 83 (1998) ], however, the alleged injury here was caused by an alleged one-time violation of the Open Meetings Act that was wholly past when Pizzato and Howland’s action was filed. Pizzato and Howland have not alleged any ‘continuing or imminent violation,’ nor does any ‘basis for such an allegation appear to exist.’ ”
Alabama Educ. Television Comm’n, 151 So.3d at 288 (footnote omitted); see also id. at 291 (Murdock, J., concurring specially) (“[W]e do not have before us a claim by which a media organization or a citizen seeks to enjoin an anticipated future violation of the statute.”).
In sum, injury in fact has always been the primary focus of Alabama’s general standing rule (as it has been for the other states discussed above). See King, 50 So.3d at 1059 (“Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing.”). For over a century, however, Alabama has recognized that actions may be

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

brought in the name of the State in circumstances comparable to those in which other states refer to public-interest standing. See, e.g., Bryce, 172 Ala. at 229, 55 So. at 638. As in other states, as Alabama adopted the formulaic restatement of the general standing rule (adopted by this Court in Henri–Duval ), we did not overrule our cases providing for such proceedings by persons interested in the enforcement of a public duty.10
As indicated, relators must show that they are seeking to require a “public officer *522 to perform a legal duty in which the public has an interest.” Kendrick, 256 Ala. at 213, 54 So.2d at 447. It could not be clearer that the public—the people of Alabama—have an interest in the respondents’ faithful compliance with Alabama’s marriage laws. The duty owed by the probate judges to follow state law in the issuance of marriage licenses is a duty owed to the public. We refer the reader in this regard to our discussion of the fundamental nature of this law and the critical interest of the public in it for the reasons discussed in Part I above.11
**23 That the duty and corresponding right at issue are owed to and held by the public is made even clearer when one considers the exact nature of the duty in question as one that is not even susceptible of vindication as a private right. The duty is not of some affirmative action on the part of the respondents, because the statute in question merely authorizes, without requiring, the issuance of
licenses by a probate judge. See § 30–1–9 (a probate judge “may” issue marriage licenses). Rather, the duty sought to be enforced is in the negative, i.e., to not take certain action. It is a duty not to issue marriage licenses to same-sex couples. It is hard to conceive of a private right in any person to prevent the issuance of a marriage license to another person. The duty and the corresponding right are intrinsically public in their nature, not even susceptible to an action by an individual asserting a private right as to their enforcement.
[5] Notwithstanding the foregoing, the respondents contend that the present case falls within a subcategory of on-relation cases that can only be brought in the name of the State by the Attorney General. They point to the below emphasized portion of the larger passage from Williams with which we began our discussion of standing:
“It is now the settled rule in

Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public; but if the matter concerns the sovereign rights of the State, it must be instituted on the relation of the Attorney General, the law officer of the State.”
Marshall Cnty. Bd. of Educ. v. State ex rel. Williams, 252 Ala. 547, 551, 42 So.2d 24, 27 (1949).
In Morrison v. Morris, 273 Ala. 390, 391–92, 141 So.2d 169, 169–70 (1962), the relator, a member of the Jefferson County Board of Equalization, sought a writ of mandamus against the chairman of the board to void a notification sent by the board to certain taxpayers that changes had been made in assessment of their property.
“Identical motions to dismiss were filed by the appellee, by the State of Alabama, and by the Attorney General individually, grounded upon the position that the appellant was not a proper party to the petition since the functioning of *523 the Board was an activity affecting the sovereign rights of the State, necessitating the filing of such petition by the law officer of the State, the Attorney General.”
**24 273 Ala. at 391, 141 So.2d at 169. The Morrison Court agreed that the action fell within the sovereign rights of the State and as such could not be brought as an on-relation action by a private party in the name of the State. Its explanation of the applicable rule begins to shed

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

light on its inapplicability to the present case, however:
“The conduct of County Boards of Equalization is governed by legislative act. Title 51, §§ 81–113, Code, and amendments. The authority of these Boards, having emanated from the State, it necessarily follows that the functioning of the Boards is a matter affecting the State, which has a peculiar interest in the uniformity of their activities. ‘The right of a private individual to enforce by mandamus duties owing to the public is necessarily confined to duties which are not owing to the state in its sovereign capacity. Where the duty is owing to the government as such, private individuals, even though taxpayers, cannot resort to mandamus to enforce it; ....’ 35 Am.Jur., Mandamus, § 321, citing
State ex rel. Foshee v. Butler, 225 Ala. 194, 142 So.
533 [ (1932) ]. See also State ex rel. Chilton County v. Butler, 225 Ala. 191, 142 So. 531 [ (1932) ]. Where a right pertains to the sovereignty of the State, proceedings for the enforcement of such right are to be instituted by the Attorney General.”
273 Ala. at 391–92, 141 So.2d at 169–70 (emphasis added).
The rule as stated in Marshall County and Morrison is that only the Attorney General may bring an action in the name of the State if its purpose is to enforce a “duty owing to the government as such.” The duty in those
cases concerned the payment of taxes. Lewright v. Love, 95 Tex. 157, 159, 65 S.W. 1089, 1089–90 (1902), is an early example of an action involving the sovereign rights of the state in which the court well explains the significance of this fact. In Lewright, the private relator

95 Tex. at 159, 65 S.W. at 1089. The Texas Supreme Court concluded that the relator could not bring the action, explaining:
“Suits to collect debts due the state must, as a rule, be brought in the name of the state, and by its principal law officer, the attorney general, or by some other law officer whose duty it is to represent the state in legal proceedings, and who may be authorized by statute to sue for it in the particular class of cases.
**25 “....
“In the case of Kimberl[ ]y v. Morris, 87 Tex. 637, 31
S.W. 808 [ (1895) ], the rule announced in [ Union Pacific] Railroad Co. v. Hall, 91 U.S. 343, 23 L.Ed. 428 [ (1875) ], ‘that private persons may move for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer,’ was quoted with approval.... [I]t should be held, as it seems to us, that a citizen of the state, though a taxpayer, cannot maintain a suit to compel an officer to perform a function due merely to the government as such, and in which he can *524 have no private interest whatever. There are some decisions which probably hold to the contrary, but we think the great weight of authority and the better reason support the rule announced by us. We therefore conclude that, if a suit of this character were maintainable against the comptroller, the relator in the petition before us is not the proper party to bring it.”
95 Tex. at 159–60, 65 S.W. at 1089–90 (emphasis added). The duty in Lewright—the collection of taxes owed to the government—was one owed to the government as such, and as such could only be brought by the state’s attorney general.

“file[d] a petition for a writ of mandamus against the comptroller of the state to compel him to institute a suit against the International & Great Northern Railroad Company to recover taxes alleged to be due the state upon the gross passenger earnings of a certain line of its road for the series of years extending from 1879 to 1900.”

The Lewright court’s conclusion followed from the fact that taxation is a sovereign right of the state, a proposition that has been repeated by courts throughout the country,
including our own. See, e.g., Doremus v. Business Council of Alabama Workers’ Comp. Self–Insurers Fund, 686 So.2d 252, 253 (Ala.1996) (“The exclusive power and authority to sue for collection of State taxes lies with
the State.”); State ex rel. St. Louis Young Men’s Christian Ass’n v. Gehner, 320 Mo. 1172, 1182, 11 S.W.2d 30, 34 (1928) (“Taxation is a sovereign right of the state....”); and Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285, 290, 46 S.E.2d 578, 581 (1948) (noting “the sovereign right of the State to tax as declared

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

by the constitution”).12
Alabama on-relation cases bear out this distinction between duties owed to the government and duties owed to the public. This Court has addressed cases concerning the sovereign rights of the State in which the Court concluded that a private party could not bring the on-relation action. In Morrison, as already noted, the Court concluded that the duty of the Board of Equalization was owed to the government as such, not to the public at large, because it implicated the power of taxation.
Another such case, heavily relied upon by the
respondents, is State ex rel. Foshee v. Butler, State Tax Commissioner, 225 Ala. 194, 142 So. 533 (1932), a case in which the relator, a resident citizen and taxpayer of Chilton County, sought a writ of mandamus to compel the State tax commissioner to assess the property of the Alabama Power Company in that county at 60 percent instead of 45 percent. The Court concluded that the
**26 “Relator shows no official duty to the public at large, but only to the state in its sovereign capacity. The general rule is that an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to himself....
“He is, as is Chilton [C]ounty in its case, merely seeking to force the state, by the unauthorized use of its name, to control an administrative function of one of its officers, in respect to a matter which is the prerogative of the state.”
225 Ala. at 195, 142 So. at 534.
The Foshee Court’s mention of the case of “Chilton
County” is a reference to State *525 ex rel. Chilton County v. Butler, State Tax Commissioner, 225 Ala. 191, 142 So. 531 (1932), what Foshee describes as the
“companion case” to Foshee, 225 Ala. at 194, 142 So. at 533. In Chilton County, the county likewise brought an on-relation action to force the tax commissioner to assess the property of Alabama Power Company in that county at 60 percent instead of 45 percent. In a passage that explains the outcome in both cases, the Court stated:

“In respect to petitions for mandamus and other remedial writs when they seek to enforce private rights, petitioner may pursue such remedy without the use of the name of the state.... But when relief is sought against a public officer to require the performance of a public duty to the general public as distinguished from the state in its sovereign capacity, the petition is properly brought in the name of the state on the relation of petitioner, a member of the general public who may have such right.”
Chilton County, 225 Ala. at 192–93, 142 So. at 532. Both Chilton County and Foshee, however, involved the tax commissioner. The duty involved was one owed to the government as such, not to the public at large:
“So that when a county undertakes to use the name of the state to require state officers to fix a certain value upon property for taxation generally, it is seeking to enforce a claim which involves sovereign capacity, rather than one which relates to a function delegated to the county, and does not show a private right with the privilege of using the name of the state as a mere formal party. 38 Corpus Juris, 838.
“Relator here is seeking to use the name of the state to enforce a public duty to it in its sovereign right which belongs exclusively to [the state], and it has not delegated to the county nor to any one the right to enforce the duties to it of its own administrative officer. The Attorney General and perhaps the Governor are vested with the ultimate power, conferred by the sovereignty, to control this sort of litigation.”
**27 Chilton County, 225 Ala. at 193–94, 142 So. at 533.13
*526 In a separate argument, the respondents contend that the above-emphasized language states that the petitioner must have some “injury peculiar to himself” in order to qualify as a relator who can invoke the standing of the State in an on-relation action. Respondents misread Foshee and Chilton County and ignore other Alabama authorities in reaching this conclusion. Again, in Foshee, the Court noted that the “[r]elator shows no official duty

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

[by the defendant] to the public at large, but only to the state in its sovereign capacity. The general rule is [indeed] that an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains
an injury peculiar to himself.” 225 Ala. at 195, 142 So. at 534 (emphasis added). In other words, a private party cannot bring an action that concerns a duty owed to the government as such, unless the private party also seeks to vindicate or obtain redress for his or her own private rights or injury relating thereto.14
*527 [6] Granted, Kendrick and similar cases do refer to on-relation actions brought in the name of the State “on the relation of one or more persons interested in the performance of [a] duty ” to the public. E.g., Kendrick, 256 Ala. at 213, 54 So.2d at 447. Even if we were to now consider this language as a basis for qualifying prospective on-relation plaintiffs beyond the holding of mere citizenship, the nature of the “interest” we would impose in order to qualify a relator on behalf of the State, at least in the unique situation where, as here, the Attorney General is unavailable to fulfill his normal role of representing the public interest, certainly would not be an interest that rises to the same level required of plaintiffs under Lujan. The State itself supplies that standing. The only question would be whether the relator has a sufficient “peculiar interest” in the matter or a sufficient relationship to the State, coupled with the ability to do so, that he or she can be expected to prosecute the matter vigorously to the end of assuring a proper adversarial proceeding for its just resolution. Ultimately, we need not resolve the question whether there is a need for such an interest that would bear on API’s and ACAP’s status as relators in this proceeding. We are clear to the conclusion that Judge Enslen more than satisfies such criteria. As an individual, he would have the same interest held by other members of the public, yet, in his official capacity, he obviously has a relationship with the State and an interest in discharging his ministerial duty in a manner that is consistent with both Alabama law and the United States Constitution. Moreover, in his judicial capacity, his jurisdiction includes cases involving adoptions, administration of estates, guardianships, and conservatorship in which he must assess whether a marriage exists. In other words, Judge Enslen’s position will require him to confront the question of the validity of purported “marriages” licensed by other probate judges and to address unavoidable derivative questions. Indeed, even if we were to consider the issue before us as a matter concerning the “sovereign right” of the State as urged by the respondents, Judge

Enslen would well qualify to prosecute it in the name of the State under the circumstances presented.15
Judge Reed also argues that there must be a limitation on public standing because “[a]ll laws and executive actions affect the public in some sense, directly or indirectly.” But he cannot point to any authority or to the articulation of some sort of rule that would explain where we are to draw the line between those “public-duty” cases *528 that members of the public can bring and those that only the Attorney General can bring. The only line articulated in precedents here or elsewhere is between those cases that involve a duty owed to the public and those that involve a duty owed to the government as such. We can find no line of the nature he suggests differentiating between public-duty cases that can be brought by a citizen and those that can be brought only by the Attorney General, with one exception: Many states have limited the availability of on-relation or comparable actions on behalf of the state to “matters of great public interest” or “matters of great importance.” We have no problem applying such a limitation in the present case, for we can think of no matter of greater public interest or importance than the one before us.
**28 It is beyond question that the duty to issue marriage licenses only in accordance with Alabama law is a duty owed to the public for its benefit. The failure to perform that duty damages the framework of law and institutions the people have chosen for themselves. The proceeding before us is properly before us as an on-relation action to enforce a duty to the public—the people who must live their lives and raise their families within that framework and within the society made possible thereby.
C. The Federal Court Order Does Not Prevent this Court from Acting
[7] The final procedural issue we consider is whether the federal court’s order prevents this Court from acting with respect to probate judges of this State who, unlike Judge Davis in his ministerial capacity, are not bound by the order of the federal district court in Strawser. The answer is no.
[8] [9] Although decisions of state courts on federal questions are ultimately subject to review by the United

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States Supreme Court, 28 U.S.C. § 1257(a), as are decisions of federal courts, neither “coordinate” system reviews the decisions of the other. As a result, state courts may interpret the United States Constitution independently from, and even contrary to, federal courts.16 For that matter, it is even true that “ ‘[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.’
” Camreta v. Greene, 563 U.S. 692, 709, 131 S.Ct. 2020, 2033 n. 7, 179 L.Ed.2d 1118 (2011) (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[1][d], p. 134–26 (3d ed. 2011)). As the Seventh Circuit Court of
Appeals noted in Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995), “[federal district court decisions] cannot clearly establish *529 the law because, while they bind the parties by virtue of the doctrine of res judicata, they are not authoritative as precedent and therefore do not establish the duties of nonparties.”
[10] Numerous Alabama cases confirm this reasoning. “[I]n determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority.” Glass v. Birmingham So. R.R., 905 So.2d 789,
794 (Ala.2004). See also Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 744 n. 5 (Ala.2009) (noting that “United States district court decisions are not controlling authority
in this Court”); Ex parte Hale, 6 So.3d 452, 458 n. 5 (Ala.2008), as modified on denial of reh’g (“[W]e are not bound by the decisions of the Eleventh Circuit.”); Ex parte Johnson, 993 So.2d 875, 886 (Ala.2008) (“This Court is not bound by decisions of the United States Courts of Appeals or the United States District
Courts....”); Buist v. Time Domain Corp., 926 So.2d 290, 297 (Ala.2005) (“United States district court cases ... can serve only as persuasive authority.”); Amerada Hess Corp. v. Owens–Corning Fiberglass Corp., 627 So.2d 367, 373 n. 1 (Ala.1993) (“This Court is not bound by
decisions of lower federal courts.”); Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 n. 2 (Ala.1991) (“Decisions of federal courts other than the United States Supreme Court, though persuasive, are not binding authority on this Court.”).
**29 [11] [12] Federal courts have recognized that state-court review of constitutional questions is independent of the same authority lodged in the lower

federal courts. “ ‘In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.’ ” United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir.1970) (quoting State v. Coleman, 46 N.J. 16, 36, 214 A.2d 393, 403 (1965)).
“Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions. Indeed, such results were contemplated by our federal system, and neither sovereign is required to, nor expected to, yield to the other.”
Surrick v. Killion, 449 F.3d 520, 535 (3d Cir.2006).
The United States Supreme Court has acknowledged that state courts “possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law.” ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). Two Justices of the United States Supreme Court in special writings have elaborated on this principle.
“The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation. In our federal

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system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”
**30 Lockhart v. Fretwell, 506 U.S. 364, 375–76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) *530 (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482 n. 3, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (Rehnquist, J., concurring) (noting that a state court “would not be compelled to follow” a lower federal court decision).

domestic law historically is controlled by the states.17
For example, in Alabama it is true that the Act was enacted in 1998 and that the Amendment was ratified in 2006. Laws that include the concept of marriage as between a husband and wife have existed, however, since the inception of Alabama as a state in 1819.18 Such laws include the *531 full statutory scheme set out in the provisions of Chapter 1 of Title 30 (and their predecessors dating back 200 years) by which the legislature has provided for the affirmative licensing and recognition of
“marriage,” including the provision in § 30–1–9 (and its predecessors) for the licensing of “marriages” and the provisions in § 30–1–7 (and its predecessors) for the solemnization of “marriages.” And it is clear that the term “marriage” as used in all those laws always has been, and still is (unless the courts can conjure the ability to retroactively change the meaning of a word after it has been used by the legislature), a union between one man and one woman.

III. Respondents’ Ministerial Duty is Not Altered by the United States Constitution
The United States District Court for the Southern District of Alabama has declared that Alabama’s laws that define marriage as being only between two members of the opposite sex—what has been denominated traditional marriage—violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
It is important to observe at the outset that some of the federal courts that have declared traditional marriage laws unconstitutional have insinuated that these marriage laws are something new by pointing to the marriage laws and amendments that states began enacting in the early 1990s. By focusing on this spate of laws, the federal courts have asserted that marriage laws were enacted to target homosexuals. This line of argument was born in
United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), when the United States Supreme Court concluded that Congress’s passage of the Defense of Marriage Act (“DOMA”) in 1996 demonstrated a clear animus toward homosexuals because Congress rarely chose to enter the realm of domestic-relations law. But as Windsor itself observed,

Further, the contemplated change in the definition (or “application” if one insists, although this clearly misapprehends the true nature of what is occurring) of the term “marriage” so as to make it mean (or apply to) something antithetical to that which was intended by the legislature and to the organic purpose of Title 30, Chapter 1, would appear to require nothing short of striking down that entire statutory scheme.19 And beyond even that statutory *532 scheme, what ultimately is at issue is the entire edifice of family law discussed previously, an edifice that has existed in some form since before the United States was even a country.20 See 1 Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama Family Law § 1:1 (2008) (observing that “a whole range of state and federal legal rights and obligations depend on the existence of a valid marriage. If there is no legal marriage, then those rights and obligations do not apply. These legal rights and obligations are basic to the well-being of society, as the United States Supreme Court has noted in describing the importance of marriage as having a ‘basic position’ in ‘society’s hierarchy of
values.’ ” (quoting Boddie v. Connecticut, 401 U.S. 371, 374, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971))). It is no small thing to wipe away this edifice with a wave of the judicial wand.
**31 It is in this context that we turn then to the specific reasoning employed by the federal district court, reasoning that can be boiled down to the following train of thought. (1) Marriage is a fundamental right. (2) Under

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the Due Process and Equal Protection Clauses of the United States Constitution, laws that impinge upon fundamental rights are subject to “strict scrutiny” and are sustained only if supported by a “compelling state interest” and if they are “narrowly tailored” to fulfill that interest. (3) The interests cited by the State of Alabama in support of its laws limiting marriage to opposite-sex couples are either not compelling state interests or the limitation is not so narrowly tailored as to meet the stated interest. (4) Therefore, Alabama’s marriage laws impermissibly violate the right to marry and consequently “violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”
[13] [14] [15] The Searcy I plaintiffs’ first constitutional claim that led to the federal court’s decision and the reasoning it adopted is one that is often repeated in the marriage debate. The Searcy I plaintiffs contended that Alabama’s marriage laws violate the Equal Protection Clause because those laws unconstitutionally discriminate against same-sex couples in favor of opposite-sex couples by conferring benefits on the latter under the law not accorded to the former.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.... The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.
*533 “The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.”
**32 City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432, 439–40, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (emphasis added and citations omitted).
[16] The difficulty with the Searcy I plaintiffs’ equal-protection claim is that, in order to trigger a “strict-scrutiny” analysis, the offending law must discriminate against a suspect class, e.g., a class determined by race, alienage, or national origin. It is often contended that although laws upholding traditional marriage do not implicate any of these suspect classes, they do discriminate based on gender, a category the United States Supreme Court has stated is sometimes
entitled to heightened scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515, 532, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (observing that “[w]ithout equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in
post- Reed[ v. Reed, 404 U.S. 71 (1971),] decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men)” (footnote omitted)).
The fact is, however, that traditional-marriage laws do not discriminate based on gender: All men and all women are equally entitled to enter the institution of marriage. Only by redefining the term “marriage” to mean something it is not (and in the process assuming an answer as part of the question), can this statement be challenged. Put in the negative, traditional-marriage laws do not discriminate on the basis of gender because all men and all women are equally restricted to marriage between the opposite sexes.
See, e.g., Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1286 (N.D.Okla.2014) (“Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened
scrutiny on that basis.”); Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1139–40 (D.Or.2014) (“The state’s marriage laws discriminate based on sexual orientation, not gender. In fact, the ban does not treat genders differently at all. Men and women are prohibited from doing the exact same thing: marrying an individual of the same gender.”). Thus, if such laws discriminate against a classification, it is one based on sexual orientation, not gender. As the federal district court itself observed in its memorandum opinion in Searcy I: “Eleventh Circuit preceden[t] holds that such classification is not suspect.
Lofton v. Secretary of Dep’t of Children and Family Services, 358 F.3d 804, 818 (11th Cir.2004).”21 See also
DeBoer v. *534 Snyder, 772 F.3d 388, 413 (6th

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Cir.2014) (noting that “[t]he Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades”).
[17] Because Alabama’s marriage laws are not subject to strict scrutiny under the Equal Protection Clause, they need only survive a rational-basis analysis to pass constitutional muster. We have reviewed at length the more than rational bases for Alabama’s understanding of marriage in Part I, above. As discussed, one legitimate interest behind the laws (among others) is recognizing and encouraging the ties between children and their biological parents. Alabama’s marriage laws clearly survive rational-basis review.
**33 [18] The Searcy I plaintiffs’ second contention was that Alabama’s marriage laws violate the Due Process Clause of the Fourteenth Amendment because, according to their complaint, “[t]he Constitution protects the rights and liberties of married, homosexual couples just as it does heterosexual, married couples.” As we previously noted, the federal district court latched onto this argument, stating that “[n]umerous cases have recognized marriage as a fundamental right.” In this way, the federal district court subjected Alabama’s marriage laws to strict-scrutiny analysis.
To support its assertion that “marriage” is a fundamental right, the federal district court cited such cases as
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18
L.Ed.2d 1010 (1967); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); and
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The federal district court is, of course, correct that there are several United States Supreme Court cases stating such a principle. In
Zablocki v. Redhail, 434 U.S. 374, 383–84, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), for example, the Court stated: “ ‘Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.’
[ Loving, 388 U.S.] at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).” In Griswold, the Court stated that marriage is “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
381 U.S. at 486. In Meyer, the Court recognized

that “the right of an individual ... to marry, establish a
home and bring up children” is protected by the Due Process Clause. 262 U.S. at 399.
What the federal district court ignored in these cases, however, is that the Supreme Court plainly was referring to traditional marriage when it proclaimed that marriage
is a fundamental right. See, e.g., DeBoer, 772 F.3d at 412 (observing that “[w]hen Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning”). This is evident from the fact that in each of those cases the discussion of the right involved children. It is also apparent from the fact
that, as the federal district court discussed, in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal
dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), the Supreme Court summarily dismissed “for want of a substantial federal question” an appeal from the Minnesota Supreme Court in which that court concluded that a state statute *535 defining marriage in the traditional manner did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Despite disagreement among the federal circuit courts of appeal regarding Baker’s strength as precedent in the wake of Windsor,22 Baker indisputably demonstrates that, in the plethora of cases in which the Supreme Court has discussed a “right to marriage,” it was not referring to an institution that formally recognized homosexual relationships.
Thus, what the federal district court has done is to declare an entirely new concept of “marriage” a fundamental right under the guise of the previously understood meaning of that institution. It is, plainly and simply, circular reasoning—it assumes the conclusion of the matter, i.e., that marriage as newly defined is a fundamental right, in the premise of the question without acknowledging that a change of terms has occurred.23 As one federal appeals court judge has noted: “To now define the previously recognized fundamental right to ‘marriage’ as a concept that includes the new notion of ‘same-sex marriage’ amounts to a dictionary jurisprudence, which defines
terms as convenient to attain an end.”24 *536 Bostic v. Schaefer, 760 F.3d 352, 391 (4th Cir.2014) (Niemeyer, J., dissenting).25
**34 The ostensible reason for the federal district court’s judicial sleight of hand is apparent enough: conferring fundamental-right status upon a concept of marriage divorced from its traditional understanding is, to say the

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least, curious.
“[W]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this
Nation’s history and tradition,’ [ Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977) ] (plurality
opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’), and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were
sacrificed,’ Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a ‘careful description’ of
the asserted fundamental liberty interest. [ Reno v. Flores, 507 U.S. 292, 302 (1993) ].”
Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).

society in which marriage existed, that there could be marriages only between participants of different sex.”).26 See Part I, supra.
*537 Beyond the obvious historical problem with labeling marriage as defined by the Searcy I plaintiffs a fundamental right, there exists another logical problem with doing so. Proponents of same-sex marriage repeatedly contend that extending the benefits of marriage to their relationships carries no religious or moral dimension and therefore does not constitute a fundamental shift in the social fabric of America, because marriage, as far as the government is concerned, is simply a civil acknowledgment of a legal bond. See
Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 321, 798 N.E.2d 941, 954 (2003) (“We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage.... [C]ivil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution.”).27 If marriage truly is nothing more than a state-granted legal license, it is difficult to see how it could rise to the status of a fundamental right of such importance that the United States Constitution prohibits states from approving only the historically accepted understanding of the institution.

“It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State
Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 [ (2003) ]. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.”

**35 Before we follow the proponents of same-sex marriage down the road toward finding their new definition of marriage constitutionally significant (but somehow socially innocuous), we need to know what characteristic of marriage is so fundamental that it warrants constitutional protection. As the Glucksberg Court observed: “[A] ‘careful description’ of the asserted fundamental liberty interest” is required in
substantive-due-process cases. 521 U.S. at 721. Although it is undeniable that the institution of marriage is fundamental,28 it is also undeniable that several aspects of marriage are not treated as fundamental.29 *538 The United States Supreme Court observed in Windsor that
*539 “[m]arriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare

Vt. Stat. Ann., Tit. 18, § 5142 (2012), with

Windsor, ––– U.S. at ––––, 133 S.Ct. at 2715 (Alito,
J., dissenting) (footnote omitted). See also Hernandez v. Robles, 7 N.Y.3d 338, 361, 821 N.Y.S.2d 770, 777, 855 N.E.2d 1, 8 (2006) (“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any

N.H.Rev.Stat. Ann. § 457:4 (West Supp.2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa and Washington, see Iowa Code
§ 595.19 (2009); Wash. Rev.Code § 26.04.020

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(2012)—prohibit the practice).”
Windsor, ––– U.S. at ––––, 133 S.Ct. at 2691–92. No one contends (yet) that state age and consanguinity requirements violate a fundamental right to marriage even though such requirements clearly limit a person’s choices as to whom the person may marry. What differs, then, about the claims of same-sex partners? What of their relationship rises to the level of a constitutional right with which the states allegedly may not interfere? One possible answer is the act of sex, albeit absent potential procreative consequences. The United States Supreme Court has stated that sexual intercourse is protected by the right to privacy allegedly embedded in the “substantive” component of the Due Process Clause. Indeed, this was the constitutional basis for the Court’s
striking down state sodomy laws in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). But the Lawrence Court did so under the rationale that government had no interest in interfering with the sexual conduct of consenting adults in the privacy of their bedrooms.30 That rationale does not work here because same-sex partners expressly seek public state-government approval of their relationships. In other words, in Lawrence the protected constitutional interest was personal privacy, but here the Searcy I plaintiffs alleged that there is a constitutional interest in the public recognition of unions between couples of the same sex that overrides any interest Alabama has in limiting such unions to opposite-sex couples. Neither Lawrence, nor Windsor, nor any other decision of the United States Supreme Court has found such a fundamental right, and such a right cannot with any logic be embedded in the so-called right to privacy that has been trumpeted by the Supreme Court since Griswold.
Another possible answer to the question is love. Under this theory, a person has a right to marry the person he or she loves regardless of that person’s gender. This notion has broad public appeal and is, perhaps, the mantra most repeated in public discussions of this matter. But although love may be an important factor in a lasting marriage, civil marriage has no public interest in whether the people seeking a marriage license love one another. “[N]o State in the country requires couples, whether gay or straight, to
be in love.” DeBoer, 772 F.3d at 407. State governments *540 do not inquire about whether couples love each other when they seek a marriage license, nor do governments have any justifiable reason to do so. Moreover, if love was the sine qua non of marriage, then polygamy also would be constitutionally protected

because **36 “there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.”31
Id.
Proponents of the new definition of marriage therefore leave us with an untenable contradiction. On the one hand, they insist that expanding the definition of marriage to include relationships between members of the same sex constitutes nothing more than offering marriage licenses to another class of individuals. It is akin to modifying the age of consent for marriage or changing the length of residency required in a state before one can receive a marriage license, changes that are wholly within state government’s power to modify, without altering the nature of marriage. On the other hand, proponents of same-sex marriage contend that this new definition of marriage is so fundamental that the Constitution prohibits states from maintaining the traditional definition of marriage, yet they are unable to articulate a fundamental element of their definition of marriage that would justify government sponsorship of it. Thus, under their own theory, either the aspect of marriage the same-sex partners insist should be included in the institution is not fundamental to its nature, in which case Alabama’s laws enforcing the traditional definition of marriage are not unconstitutional, or marriage is a fundamental right but the characteristics upon which same-sex partners necessarily must hinge their definition of marriage fail to explain government’s interest in marriage.
Having discarded candidates for what aspect of marriage is so fundamental that it warrants constitutional protection, we are left with the characteristic that has remained unchanged throughout history: marriage has always been between members of the opposite sex. The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children.32 Marriage demonstrably channels the results of sex between members of the opposite sex—procreation—in a socially advantageous manner.33 It creates the family, the institution that is almost *541 universally acknowledged

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to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society. See, e.g.,
Lehr v. Robertson, 463 U.S. 248, 256–57, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (“The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society.... [A]s part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal
family.”); Smith v. Organization of Foster Families For Equal. & Reform, 431 U.S. 816, 843–44, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (“[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promot(ing) a way of life’ through the
instruction of children.” (quoting Wisconsin v. Yoder, 406 U.S. 205, 231–33, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972))); Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (“The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of [the] commanding problems....”). In short, government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by State law.
In his dissent in Goodridge, Judge Cordy summarized well many of the public purposes of traditional marriage, and, therefore, why traditional marriage is a rational state policy:
**37 “Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. See C.N. Degler, The Emergence of the Modern American Family, in The American Family in Social–Historical Perspective 61 (3d ed.1983); A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty–First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, Social Pathologists and the Socialization of Reproduction, in The American Family in Social–Historical Perspective,

[61,] at 80 [ (3d ed.1983) ]; W.J. O’Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, The Individual, Marriage, and the Family 229–230, 260 (1968); M.A. Schwartz & B.M. Scott, Marriages and Families: Diversity and Change 4 (1994); Wardle, ‘Multiply and Replenish’: Considering Same–Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771, 777–780 (2001); J.Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 28, 40, 66–67 (2002). Marriage has not been merely a contractual arrangement for legally defining the private relationship between two individuals (although that is certainly part of any marriage). Rather, on an institutional level, marriage is the ‘very basis of the whole fabric of civilized society,’ J.P. Bishop, Commentaries on the Law of Marriage and Divorce, and Evidence *542 in Matrimonial Suits § 32 (1852), and it serves many important political, economic, social, educational, procreational, and personal functions.
“Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. See Milford v. Worcester, 7 Mass. 48, 52 (1810) (civil marriage ‘intended to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species’). See also P. Blumstein & P. Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra at 61; G. Douglas, Marriage, Cohabitation, and Parenthood—From Contract to Status?, in Cross Currents: Family Law and Policy in the United States and England 223 (2000); S.L. Nock, The Social Costs of De–Institutionalizing Marriage, in Revitalizing the Institution of Marriage for the Twenty–First Century: An Agenda for Strengthening Marriage, supra at 7; L. Saxton, supra at 239–240, 242; M.A. Schwartz & B.M. Scott, supra at 4–6; Wardle, supra at 781–796; J.Q. Wilson, supra at 23–32. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.

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“The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. See G.L. c. 209C, § 6 (‘a man is presumed to be the father of a child ... if he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce’). Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. See J.Q. Wilson, supra at 23–32. See also P. Blumstein & P. Schwartz, supra at 29; C.N. Degler, supra at 61; G. Douglas, supra at 223; S.L. Nock, supra at 7; L. Saxton, supra at 239–240, 242; M.A. Schwartz & B.M. Scott, supra at 4–6; Wardle, supra at 781–796. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.
**38 “The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, *543 and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. See P. Blumstein & P. Schwartz, supra at 26; C.N. Degler, supra at 61; S.L. Nock, supra at 2–3; C. Lasch, supra at 81; M.A. Schwartz & B.M. Scott, supra at 6–7. More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. See M. Grossberg,

Governing the Hearth: Law and Family in Nineteenth–Century America 10 (1985); C. Lasch, supra; L. Saxton, supra at 260; J.Q. Wilson, supra at 221.”
Goodridge, 440 Mass. at 381–84, 798 N.E.2d at 995–96 (Cordy, J., dissenting) (footnote omitted).34
*544 Ultimately, these are the purposes of marriage that relate to government. Government is concerned with public effects, not private wishes. The new definition of marriage centers on the private concerns of adults, while the traditional definition focuses on the benefits to society from the special relationship that exists between a man and a woman, i.e., the effects for care of children, the control of passions, the division of wealth in society, and so on.
The federal district court and other courts that have struck down traditional marriage laws have stated that states cannot distinguish traditional marriage on the basis of procreation and the beneficial effects the institution provides to children because some married couples cannot or do not have children, and yet government recognizes their marriages. This argument is nothing more than an attempt to use the exception to disprove the rule.35 The fact that many people do not vote in elections does not invalidate the value of using elections to allow people to chose their government leaders. “Marriage laws are not aimed at making all married sex procreative but only seek to encourage that all man-woman sex occurs in marriage, as a protection for when such sex is procreative—a protection for the baby, the often vulnerable mother, and society generally.” Stewart, 31 Harv. J.L. & Pub. Pol’y at 344–45.36
**39 The federal district court’s memorandum opinion in Searcy I states that “[t]he 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.” But “ ‘the relevant inquiry here is not whether excluding same-sex couples from marriage furthers [the state’s] interest in steering man-woman couples into *545 marriage.’ Rather, the relevant inquiry is whether also recognizing same-sex marriages would further [the
state’s] interests.” Bostic, 760 F.3d at 394 (Niemeyer, J., dissenting)(quoting state-appellant’s brief). In other words, the state simply has to show that recognizing and encouraging marriage between men and women promotes

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

responsible procreation, not that excluding same-sex couples from marriage encourages heterosexuals to marry. Even if preventing homosexuals from marrying will not increase the likelihood that children are born in wedlock, this does not address the fact that offering marriage solely to heterosexuals indisputably serves as a tool to prevent out-of-wedlock pregnancies. Moreover, the state’s policy need only advance a rational goal; it does not need to demonstrate that it is the only way to advance the goal or even that it is the best way to do so. “[R]ational basis review does not permit courts to invalidate laws every time a new and allegedly better way
of addressing a policy emerges.” DeBoer, 772 F.3d at 405.

Federal Defense of Marriage Act (“DOMA”) because Congress’s intrusion into a traditional state-law area demonstrated that DOMA was “motived by an improper
animus.” – –– U.S. at ––––, 133 S.Ct. at 2693. The Court explained that DOMA’s aim was to “interfere[ ] with the equal dignity of same-sex marriages” conferred by New York’s laws on marriage. Id. The Court added that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other
reasons like governmental efficiency.” – –– U.S. at ––––, 133 S.Ct. at 2694. In short, “the principal purpose and the necessary effect of [DOMA] are to demean those *546 persons who are in a lawful same-sex marriage.”

[19] Under United States Supreme Court precedent, another potential method of finding traditional marriage unconstitutional is the notion that Alabama’s limitation of marriage to heterosexual unions is based solely on animus toward homosexuals and that, therefore, the laws violate both the Equal Protection Clause and the Due Process Clause. The federal district court did not expressly articulate this position, but doing so would require
reliance upon Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), Lawrence, and Windsor.
In Romer, the Supreme Court struck down an amendment to the Colorado Constitution that “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect” the status of persons based on their “ ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’ ”
517 U.S. at 624. The Court did so because the amendment “singl[ed] out a certain class of citizens for

– –– U.S. at ––––, 133 S.Ct. at 2695.37
The theme from Romer, Lawrence, and Windsor that government cannot single out a group for disfavored treatment solely on the basis of hatred for that particular group does not apply to Alabama’s marriage laws. Although Alabama’s limitation of marriage to opposite-sex couples prevents homosexual couples from receiving marriage licenses, the laws do not do so for the purpose of singling out same-sex partners for disfavored status. As we have already seen, the marriage laws undeniably have several purposes that have absolutely nothing to do with attempting to treat a particular group in an unequal fashion. The laws attempt to protect children produced in opposite-sex relationships; they fashion a system for parental legal responsibilities; and they encourage family structure and enable formative education and socialization of children. The limitation of marriage to opposite-sex couples has so long existed in law that ascribing its existence solely to hatred toward homosexuals is simply absurd on its face. See

disfavored legal status,” 517 U.S. at 633, and “raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
517 U.S. at 634. In short, the amendment “classifie[d] homosexuals not to further a proper legislative end but to
make them unequal to everyone else.” 517 U.S. at 635.
**40 In Lawrence, the Court struck down a Texas law criminalizing sodomy because, it said, homosexuals “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making

Lawrence, 539 U.S. at 570 (“American laws targeting same-sex couples did not develop until the last third of the 20th century.”). Even Alabama’s marriage amendment, which is of a more recent vintage,
“codified a long-existing, widely held social norm already reflected in state law. ‘[M]arriage between a man and a woman,’ as the Court reminded us just last year, ‘had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.’
Windsor, 133 S.Ct. at 2689.”

their private sexual conduct a crime.” 539 U.S. at 578. In Windsor, the Court struck down a portion of the

**41

DeBoer, 772 F.3d at 408. Alabama’s

longstanding and continued embrace of traditional

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

marriage is not due to be struck down on an animus rationale.
If Alabama’s marriage laws do not violate the Equal Protection Clause or the fundamental right to marry under the Due Process Clause, and if they are not solely the product of animus toward homosexuals, then Supreme Court precedent provides only one other course to justify the conclusion reached by the federal district court: The notion that marriage confers a certain dignity on its participants that the law cannot deprive individuals of simply because they desire to marry a person of the same sex. This line of reasoning comes from Windsor. In Windsor, the Court stated:
“Here [New York’s] decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
“....
*547 “... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see
Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and whose relationship the State has sought to dignify.”
Windsor, ––– U.S. at ––––, 133 S.Ct. at 2692, 2694;
see also – –– U.S. at ––––, 133 S.Ct. at 2693 (“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.”).

dignity’ ” (quoting Windsor, ––– U.S. at ––––, 133
S.Ct. at 2696; further citation omitted)); Kitchen v. Herbert, 755 F.3d 1193, 1213 (10th Cir.2014) (stating that “freedoms [such as marriage] support the dignity of each person, a factor emphasized by the Windsor Court”);
Garden State Equal. v. Dow, 434 N.J.Super. 163, 206, 82 A.3d 336, 361 (Ch.Div.2013) (relying on Windsor’s language that a “ ‘[s]tate’s decision to give this class of persons the right to marry conferred upon them a dignity
and status of immense import’ ” (quoting Windsor, ––– U.S. at ––––, 133 S.Ct. at 2705)).
Windsor’s “equal dignity” rationale contains several problems. First, there is no “equal dignity” provision in the text of the United States Constitution. Instead, what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.38 Since the notion is not textual, it is at least incumbent upon federal courts employing it to strike down state-marriage laws to describe in concrete terms what “dignity” state-sanctioned marriage confers and therefore exactly what same-sex couples are deprived of by traditional marriage laws.39 But those courts merely repeat the generalized language of Windsor. Does a paper license that publicly recognizes the relationship confer “dignity” upon those who obtain it? Is it the fact that government recognition of same-sex relationships declares them to *548 be “the same as” opposite-sex relationships that confers dignity? The United States Supreme Court has held that damage to reputation is not a cognizable interest protected by the
Fourteenth Amendment. See Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (holding that “the interest in reputation ... is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law”). So presumably this notion must be something more than reputation, but it is apparently too difficult for the judges relying on it to describe what it is. If the notion of “equal dignity” is a backdoor way of according fundamental-right status to the new definition of marriage, it utterly fails to cabin that right in any meaningful way.

Several courts that have declared state marriage laws unconstitutional have relied on Windsor’s “equal dignity”
language. See, e.g., Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir.2014) (emphasizing Windsor’s statement that “ ‘no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and

**42 Furthermore, emphasizing the “dignity” of the public recognition of a marriage places the focus on the adult relationship, again assuming the conclusion as a premise for the question. It constitutes an implicit adoption, without acknowledgment, of the new definition of marriage based solely on a special relationship between two adults—as opposed to the traditional definition of

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

marriage, which aligns with the historically recognized purpose relating to procreation and the “rights and obligations between the couple and any children the union may produce.” Maggie Gallagher, What Is Marriage for? The Public Purposes of Marriage Law, 62 La. L.Rev. 773, 781 (2002).
“Plaintiffs seek to bring the right to marry the person of their choosing regardless of gender within the protection of the well-recognized fundamental right to
marry (see Zablocki v. Redhail, 434 U.S. 374, 98
S.Ct. 673 [ (1978) ]; Loving v. Virginia, 388 U.S. 1,
87 S.Ct. 1817 [ (1967) ]; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 [ (1942) ] ). However, we find merit in defendants’ assertion that this case is not simply about the right to marry the person of one’s choice, but represents a significant expansion into new territory which is, in reality, a redefinition of marriage. The cornerstone cases acknowledging marriage as a fundamental right are laced with language referring to the ancient recognized nature of that institution, specifically tying part of its critical importance to its role in procreation and, thus, to the union of a woman and a man....”
Samuels v. State Dep’t Of Health, 29 A.D.3d 9, 14–15, 811 N.Y.S.2d 136, 140–41 (N.Y.App.Div.2006) (footnote
omitted), aff’d sub nom., Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006).

from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions. See Charles P. Kindregan, Jr., Same–Sex Marriage: The Cultural Wars and the Lessons of Legal History, 38 Fam. L.Q. 427, 428 (2004) (detailing the intertwining history of religious and civil marriage in America and stating that “[t]he Western concept of marriage has been strongly influenced by Judeo–Christian theology”). Moreover, because the Windsor Court’s moral judgment is (one must assume) not based on religion, then it must be asked what standard is being used to *550 judge that marriage is better than nonmarriage, that it contains some kind of higher dignity than other relationships?43 Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuitions.44 At any rate, it is not a legal basis for striking down a validly enacted law.
In the end, however, even if one were to accept that marriage carries with it a “dignity” that compels its availability to all, would we not meet ourselves coming? Under that construct, such dignity no doubt would be something gained from the very nature of traditional marriage, the foundation for the family unit within which children may be born and have imparted to them by a mother and father the values needed for responsible citizenship and the furtherance of society.

**43 Related to the fact that Windsor implicitly adopts the new definition of marriage is the fact that Windsor’s “equal dignity” rationale necessarily makes a moral judgment about adult sexual relationships, even though the Supreme Court in Lawrence and lower courts addressing the marriage issue have purported to disclaim ascribing any merit to moral or religious considerations.40 By asserting that denying same-sex couples the status of marriage deprives them of “a dignity and status of
immense import,” – *549 –– U.S. at ––––, 133 S.Ct. at 2692, the Windsor Court made a moral judgment that a married couple has more dignity than an unmarried couple.41 Many people would agree with such an assessment, but it is not, strictly speaking, a legal judgment—at least according to several courts that have invalidated traditional marriage laws.42 It seems at least disingenuous to find a constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart

“To remove from ‘marriage’ a definitional component of that institution (i.e., one woman, one man) which long predates the constitutions of this country and

state (see e.g.

Griswold v.

Connecticut, 381 U.S. 479, 486[,

85 S.Ct. 1678, 14 L.Ed.2d 510]

[1965] ) would, to a certain extent,

extract some of the ‘deep[ ]

root[s]’ that support its elevation

to a fundamental right.”

Samuels v. State Dep’t of Health, supra.
**44 Finally, an open question exists as to whether Windsor’s “equal dignity” notion works in the same

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

direction toward state laws concerning marriage as it did toward DOMA. The Windsor Court stated that “[t]he history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an
incidental effect of the federal statute.” Windsor, ––– U.S. at ––––, 133 S.Ct. at 2693. In Windsor, New York’s law allowed same-sex couples to obtain marriage licenses. Thus, the “dignity” was conferred by the state’s own choice, a choice that was “without doubt a proper exercise of its sovereign authority within our federal system, all in
the way that the Framers of the Constitution intended.” ––– U.S. at ––––, 133 S.Ct. at 2692. The problem with DOMA was that *551 it interfered with New York’s “sovereign” choice. Alabama “used its historic and essential authority to define the marital relation” and made a different “sovereign” choice than New York. Id. If New York was free to make that choice, it would seem inconsistent to say that Alabama is not free to make its own choice, especially given that “[t]he recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.”
– –– U.S. at ––––, 133 S.Ct. at 2691.
To all of this, proponents of same-sex marriage often retort that there is no reason both the traditional definition and the new definition of marriage cannot coexist. On one level, that argument makes the erroneous assumption that the two definitions are not making different claims as to why marriage exists. On another level, it simply assumes that the definitions are not mutually exclusive.45
Redefining marriage by definition implies that the traditional definition is inaccurate. In point of fact, we are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other.
Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage. Some other states, like New York, have more recently chosen the new definition. The United States Constitution does not require one definition or the other because, as the Windsor Court noted, “[b]y history and tradition,” and one should add, by the text of the Constitution, “the definition and regulation of marriage ... has been treated as being within

the authority and realm of the separate States.” – –– U.S. at ––––, 133 S.Ct. at 2689–90. That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.46
*552 As it has done for approximately two centuries, Alabama law allows for “marriage” only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.
IV. Order
**45 The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen’s request that this Court, “by any and all lawful means available to it,” ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the “Judge Does” identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator’s petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion.
As to Judge Davis’s request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
PETITION GRANTED; WRIT ISSUED.**

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

STUART, BOLIN, PARKER, MURDOCK, WISE, and BRYAN, JJ., concur.
MAIN, J., concurs in part and concurs in the result.
SHAW, J., dissents.

deviation from the law, I fear, will have unforeseen consequences in future cases. For that reason, I cannot join the main opinion. My concerns are as follows:

MAIN, Justice (concurring in part and concurring in the result).
I concur fully in the main opinion except for Part II.B. As to Part II.B., I concur in the result only. Consistent with my dissent from the Court’s earlier decision to order answer and briefs in this matter, I continue to harbor concerns regarding some of the procedural aspects of this highly unusual case. Nevertheless, given the unique facts of this case and the intervention of Probate Judge John Enslen, I am persuaded that Judge Enslen has a sufficient interest in these proceedings to satisfy the criteria necessary for standing.
*553 SHAW, Justice (dissenting).
**45 I do not believe that this case can be filed in this Court at this time; as discussed below, I do not believe that this Court yet has jurisdiction.
It is unfortunate that the federal judiciary has refused to stay the order striking down Alabama’s marriage-protection laws until the Supreme Court of the United States can conclusively rule on the issue within the next few months. The federal district court’s order did nothing less than change the very definition of the institution of marriage in Alabama. Such a drastic change in Alabama law warranted the granting of a stay. The lack of a stay has resulted in much unnecessary confusion and costly litigation. Because I do not believe the case before this Court is properly filed, I cannot, at this time, express my opinion as to whether the federal court’s decision was correct.
Against this backdrop, I write to express my concern that, in an attempt to reduce confusion and to restore order, the main opinion has deviated from certain principles of law that undermine its rationale for assuming jurisdiction of, and extending relief to, the petitioners here. This

1. This Court does not have jurisdiction in this case.
**46 Normally, this Court hears appeals from lower court decisions. Here, public-interest groups have filed a petition directly with this Court in an attempt to invoke its “original” jurisdiction, which is rare. “Original jurisdiction” is “[a] court’s power to hear and decide a matter before any other court can review the matter.” Black’s Law Dictionary 982 (10th ed.2014).
This Court’s original jurisdiction is described in the Constitution: “The supreme court shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction....” Ala. Const.1901, Art. VI, § 140(b)(2) (emphasis added). Alabama Code 1975, § 12–2–7(2), states that this Court has authority to exercise “original jurisdiction” in determining and issuing writs of mandamus in matters where “no other court has jurisdiction.” So, if another court has jurisdiction over this mandamus petition, the plain language of § 12–2–7(2) provides that this Court cannot exercise original jurisdiction. Circuit courts are courts of general jurisdiction whose judgments may be appealed to this Court and that, under § 12–2–7(2), cannot be bypassed. This Court is applying a different rule in this case.
This Court routinely hears petitions challenging a lower court’s decision in a pending case; this does not constitute hearing a matter “before another court” gets that opportunity and is not an exercise of original jurisdiction. Alabama Code 1975, § 12–2–7(3), states that this Court has authority to issue “remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction.” There is no indication in the plain language of this Code section that the reference to “original writs” encompasses “original jurisdiction”; rather, the language refers to writs that review interlocutory decisions of the lower courts:

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

“Other procedures by which decisions of a supervised court are brought to a supervising court for review are provided by the writs of certiorari, mandamus, and prohibition. Known variously as ‘prerogative writs,’ ‘peremptory writs,’ ‘extraordinary writs,’ ‘supervisory writs,’ and ‘original writs,’ these writs are not, *554 when appropriately employed, alternatives to appeal, but lie under circumstances in which an appeal does not lie. One or another of these writs can, under prescribed circumstances, be used to invoke supervisory review of interlocutory decisions that could not be appealed.”
Jerome A. Hoffman, Alabama Appellate Courts: Jurisdiction in Civil Cases, 46 Ala. L.Rev. 843, 852 (Spring 1995).
**47 Advising a probate judge how to issue government marriage licenses is not “superintendence and control” of an inferior court ‘s performance of a judicial function. Instead, it is instructing a State official acting in a nonjudicial capacity on how to perform a ministerial act. Specifically, probate courts are courts of limited jurisdiction.47 The jurisdiction of those courts is specified in Ala.Code 1975, § 12–13–1, which lists the types of cases and controversies the courts may hear. Issuing marriage licenses is not a function of the court or of its judicial power—the court has no judicial power to issue a marriage license.48 Instead, it is something the legislature has instructed that probate judges “may” do.49
Ala.Code 1975, § 30–1–9; Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896) (“The issuance of a marriage license by a judge of probate is a ministerial and not a judicial act.”). There is no exercise of a probate court’s jurisdiction when a probate judge issues a marriage license because the source of the probate judge’s authority to issue such a license does not stem from the jurisdiction of the court. By acting in this case, this Court is not correcting a legal mistake by a judicial officer; it is not supervising or correcting a court. Section 140(b), Ala. Const.1901, and § 12–2–7(3), Ala.Code 1975, are simply inapplicable in this case.

Furthermore, the decision in Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303 (1942), provides no exception. In that case, this Court purported to hear the petition under what is now § 12–2–7(3) and not § 12–2–7(2). A subsequent decision, State v. Albritton, 251 Ala. 422, 424, 37 So.2d 640, 642 (1948), notes that § 12–2–7(3)50 allows the Court to supervise only the exercise of judicial power: “It is clear from [§ 12–2–7(3) ] that the justices of the supreme court are limited in the issuance of these extraordinary writs as necessary to give general superintendence and control of inferior jurisdictions. That is, to supervise persons and bodies clothed with judicial power in the exercise thereof.” (Emphasis added.) It further notes that Alabama Textile involved a review of a “judicial action” of “an inferior tribunal vested with judicial or quasi judicial power,” and is thus also so limited. Id. In other words, Alabama Textile does not provide this Court with original jurisdiction to supervise the nonjudicial functions of probate judges. See also Russo v. *555 Alabama Dep’t of Corr., 149 So.3d 1079, 1081 (Ala.2014) (“This Court does not have original jurisdiction to issue writs against State officers and employees other than to the lower courts.”), and Ex parte Anderson, 112 So.3d 31, 35 (Ala.2012) (on application for rehearing) (Murdock, J., concurring specially) (“In her application for rehearing, Anderson ... [argues] that her petition to this Court did not seek a writ directed to the circuit court requiring it to enforce its original orders but, instead, was a petition asking this Court to issue a writ directly to the State comptroller. I am not persuaded that such a petition is within the original jurisdiction of this Court....”).51 This Court is applying a different rule in this case.
2. The public-interest groups cannot sue in the State’s name.
**48 The public-interest groups here are attempting to pursue this case “in the name of the State.” Citizens can sometimes sue in the name of the State to compel a public officer to perform a legal duty in which the public has an interest. But they cannot do this when “the matter
concerns the sovereign rights of the State....” Morrison v. Morris, 273 Ala. 390, 392, 141 So.2d 169, 170 (1962).52 I must respectfully disagree with the conclusion that this case does not concern the sovereign rights of this State. The relief requested and the relief granted touch directly

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

on Alabama’s sovereign authority to define the institution of marriage. This Court is applying a different rule in this case.
3. The public-interest groups do not have standing.

This Court is applying a different rule in this case. Here, the Court is recognizing an exception to Lujan when a party simply claims that it is acting on behalf of a public interest. If such recitation in the complaint is all that is required to avoid running afoul of Lujan, then Lujan is meaningless. The implications of such a holding are troublesome.

Not just anyone can file a lawsuit; the person or entity filing the action must have “standing,” meaning the person or entity must have a sufficient stake in the controversy to be allowed to file the case.53 The legal test this Court would normally use to determine whether
“standing” exists is found in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), which this Court has adopted.54 In Lujan, certain environmental groups alleged that the Secretary of the Interior was not correctly applying the law, and they wanted the courts to order the Secretary to apply the law in a different way. The Supreme Court of the United States held, among other things, that, in order for those interest groups to sue, they must have been “injured”: “the plaintiff must have suffered an ‘injury in fact’—an invasion *556 of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent,
not “conjectural” or “hypothetical.” ’ ” 504 U.S. at 560 (footnote and citations omitted). The injury suffered must impact the plaintiff “in a personal and individual
way.” 504 U.S. at 560 n. 1. Using this logic, this Court has held in the following cases that groups of interested people claiming that they have been broadly or generally harmed by allegedly unconstitutional or unauthorized governmental acts did not show the required injury: Ex parte King, 50 So.3d 1056 (Ala.2010); Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253 (Ala.2004); and Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164 (Ala.2002). The public-interest groups’ alleged injuries in this case are not personal or individual in nature. Their injuries are no different than the injuries alleged in the above cases, where standing was rejected by this Court. Their disagreement with the probate judges, alone, does not provide sufficient standing. Government officials cannot be sued simply because a person thinks the officials are doing something wrong; the thing they are doing must result in “concrete and particularized” and “actual or imminent” harm to the person seeking judicial relief.

4. This mandamus petition is procedurally deficient.
**49 “When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents.” Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala.2009). When a party seeks mandamus review of a lower court decision, it must attach to the petition “[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a)(1)(E), Ala. R.App. P. There is no record below in this case because there is no lower court proceeding. Although the petition includes various documents issued by the federal district court, we cannot take judicial notice of another court’s records. Green Tree–AL LLC v. White, 55 So.3d 1186, 1193 (Ala.2010). We are in a position similar to that of a circuit court hearing an original petition filed in that court. Those courts, however, have the benefit of Ala.Code 1975, § 6–6–640(a), which requires mandamus petitions to be “verified by affidavit.”55 Thus, the public-interest groups have provided us with no competent evidence upon which we can determine whether they have proven their case.
Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 814 n. 6 (Ala.2003) (“The petitioner has the responsibility of supplying the Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition.”). Normally, this Court would not *557 grant relief in such a situation. Ex parte Allianz Life Ins. Co. of North America, 25 So.3d 411 (Ala.2008). This Court is applying a different rule in this case.
5. This Court is addressing issues not presented.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

The public-interest groups have not asked this Court to rule on the constitutionality of Alabama’s marriage-protection laws. Van Voorst v. Federal Express Corp., 16 So.3d 86, 92–93 (Ala.2008) (noting that issues not briefed are waived). They have not presented an argument as to that issue. See Rule 21(a)(1)(C), Ala. R.App. P. (providing that a mandamus petition shall contain a statement of the issues presented and the relief sought). The briefs of the respondents appear to operate on the assumption that the constitutionality of the marriage-protection laws will not be addressed. Indeed, our order for answers and briefs may have misled them to believe that no argument as to this issue was required:

meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State’s probate judges, this Court, in my view, is venturing into uncharted waters and potentially unsettling established principles of law. Therefore, I must respectfully dissent.
ORDER

“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition.”

(Issued March 10, 2015)
**113 [20] In an opinion issued on March 3, 2015, this Court ordered Judge Don Davis, the Probate Judge for Mobile County,

**50 (Emphasis added.) The petition does not demonstrate “a clear legal right” to relief as to this issue because it does not even argue it. This Court would normally not perform a party’s legal research. Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) (“[I]t is not the function of this Court to do a party’s legal research....”). This Court is applying a different rule in this case, and, for all practical purposes, is issuing an advisory opinion on this issue to two public-interest groups. Again, this is something that this Court has held it cannot do. Stamps v. Jefferson Cnty. Bd. of Educ., 642 So.2d 941, 944 (Ala.1994).
For the foregoing reasons, I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court’s normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot

“to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser [v. Strange (Civil Action No. 14–0424–CG–C, Jan. 26, 2015) ].[1]”
*558 On March 5, Judge Davis filed a motion seeking an 11–day extension of time, until March 16, 2015, to comply with this Court’s order. On March 9, Judge Davis filed a “Response to Show Cause Order” in which he asserts that he should not be included in this Court’s March 3 order out of concern that doing so would require him to violate the federal district court order previously entered in Strawser.2 Because we find Judge Davis’s concern to be without merit, and for the additional reasons

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

discussed below, Judge Davis’s motion for extension is denied, and he is added as a respondent to this mandamus proceeding and is enjoined from issuing any further marriage licenses contrary to Alabama law.
Judge Davis asks for the 11–day extension to respond to this Court’s question because he has asked for a “ruling” as to that question from the Alabama Judicial Inquiry Commission (“the JIC”):
“As grounds for this Motion, Judge Davis sets out as follows:
“....
“2. Judge Davis has sought instruction today from the Alabama Judicial Inquiry Commission.
“3. Proper response to this Court is best made after [United States District Court] Judge Granade rules and/or after the Alabama Judicial Inquiry Commission rules.”
(Emphasis added.) Our inquiry to Judge Davis was intended as a factual one. We fail to see what knowledge the JIC might have as to the facts regarding whether Judge Davis is bound by an order in any case other than Strawser v. Strange (Civil Action No. 14–0424–CG–C, Jan. 26, 2015), or the fact of what the Strawser order says. As to the latter, the task of reading the order in Strawser and understanding what it says is the task of this Court, not the JIC.3
Judge Davis also notes that he has asked the federal district court “for a stay” of its order in Strawser. The fact of this request offers no basis for delay here; indeed, the prospect of such a stay by the federal court is compatible with the action of this Court. Further, Judge Davis has made no showing that the federal court order for which he seeks a stay is one that has not already been executed, i.e., one that concerns any license other than those already issued to the plaintiffs in that case.
[21] Our opinion of March 3 serves as binding statewide precedent. To ensure compliance with that precedent, we also entered on that date and as part of our opinion an order specifically directing Alabama probate judges not to issue marriage licenses contrary to that precedent. Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser, and he makes no showing that that order has any continuing, binding effect on him as to any

marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested. The inapplicability of the federal *559 court order to any other couple is evident from the terms of the order itself:
“Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment[, Ala. Const.1901, § 36.03,] and the Alabama Marriage Protection Act[, Ala.Code 1975, § 30–1–19,] or by any other Alabama law or Order pertaining to same-sex marriage.”
**114 (Capitalization in original; emphasis added.)
[22] In his motion, Judge Davis himself places emphasis on the same passages we have emphasized above. In the absence of a showing otherwise, we are left to read this language in accordance with its plain meaning: It grants injunctive relief against Judge Davis only as “to [the] plaintiffs” in Strawser. Our reading of this plain language is confirmed by the fact that the plaintiffs in Strawser sought relief only on their own behalf, not on behalf of any others, and by the fact that federal jurisprudence contemplates that a federal court decides only the case before it, see Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495, 528–30 (Part II.C.) (Ala.2015),4 in turn binding the parties before them only with respect to the other parties in the case.5
Notwithstanding the plain description of the activity enjoined by the quoted language in the federal court order

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

requiring Judge Davis to issue licenses “to [the] plaintiffs” in the Strawser case, Judge Davis questions whether the following language somehow was intended to enjoin him in relation to persons other than the four couples who sued and obtained a *560 judgment against him for their personal benefit:
“This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.”
The apparent purpose of this latter passage was to clarify who is bound by the federal court’s order, not what action that order requires of those persons. The question of “what” is the subject of the clear statement in the previous paragraph quoted above, i.e., that the enjoined parties are directed to issue marriage licenses specifically “to [the] plaintiffs.” The subsequent reference to persons who “would seek to enforce the marriage laws of Alabama” is in reference to Judge Davis and his agents, employees, etc., to the extent that they would seek to enforce the marriage laws of Alabama as “to [the] plaintiffs.” We are further confirmed in our reading of the federal court’s order by our understanding, as discussed in notes 4 and 5, supra, that federal court jurisprudence contemplates that a federal district court adjudicates the obligations, if any, of a defendant or defendants only with respect to the plaintiff or plaintiffs in the case before the court. See also

before the court.”); Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir.1974) (holding that “the injunction against the School District from enforcing its regulation against anyone other than [the plaintiff] reaches further than is necessary” (emphasis added)).
As we explained in our March 3 opinion, this Court has acted to ensure statewide compliance with Alabama law in an orderly and uniform manner. We have before us in this case a petitioner in the form of the State that has an interest in and standing as to the actions of every probate judge in the State. Moreover, as we noted in the opinion, Alabama’s probate judges took a variety of different positions in the wake of the federal district court’s decisions, and no single circuit court has jurisdiction over all probate judges to enable it to address that disarray. The inclusion of Judge Davis, along with all the other probate judges in this State, as a respondent subject to this Court’s March 3 order as to future marriage-license applicants is necessary and appropriate to the end of achieving order and uniformity in the application of Alabama’s marriage laws.
**115 Based on the foregoing, Judge Davis is added to this mandamus proceeding as a respondent and is subject
to this Court’s order of March 3, 2015. Section 30–1–9, Ala.Code 1975, provides that Judge Davis “may” issue “marriage licenses.” To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term “marriage” in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion.
STUART, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

Meinhold v. United States Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir.1994) (“An injunction ‘should be no more burdensome to the defendant than necessary to

SHAW, J., dissents.

provide complete relief to the plaintiffs.’ Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979).... This is not a class action, and Meinhold sought only to have his discharge voided and to be reinstated.... Beyond reinstatement ..., DOD should not be constrained from applying its regulations to Meinhold and all other military personnel.” (emphasis added));

*561 SHAW, Justice (dissenting).
As explained in my dissent in Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495, 553 (Ala.2015), I do not believe that this Court has jurisdiction in this case; therefore, I dissent.

Zepeda v. United States Immig. & Naturalization Serv., 753 F.2d 719, 727 (9th Cir.1983) (“A federal court ... may not attempt to determine the rights of persons not

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752
ORDER
(Issued March 4, 2016)

Injunction is binding on any Alabama probate judge, and prohibiting any probate judge from issuing or recognizing a marriage license which violates the Marriage Amendment or the Marriage Act.”

IT IS ORDERED that all pending motions and petitions are DISMISSED.
WISE and BRYAN, JJ., concur.
MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur specially.
MOORE, Chief Justice (statement of nonrecusal). On February 11, 2015, the State of Alabama on relation of the Alabama Policy Institute and the Alabama Citizens Action Program initiated this case by filing in this Court an “Emergency Petition for Writ of Mandamus.” The petition sought a writ of mandamus “directed to each Respondent judge of probate, commanding each judge not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

**51 Attached to the petition as Exhibit C was a copy of the referenced administrative order. In subsequent paragraphs the petition identified by name four respondent Alabama probate judges who allegedly were issuing marriage licenses to same-sex couples “in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order.” (Emphasis added.) The petition also named as respondents 63 Judge Does “who may issue, or may have issued, marriage licenses to same-sex couples in Alabama as a result of the Searcy or Strawser Injunction, in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order.”
The petition argued that the writ should issue because (1) the marriage amendment and the marriage act were consistent with the United States Constitution and (2) this Court was not bound by a federal district court’s interpretation of the United States Constitution. Alternatively, the petition stated:

In its statement-of-facts section the petition described the

federal injunctions in Searcy v. Strange, 81 F.Supp.3d 1285 (S.D.Ala.2015), and Strawser v. Strange (Civil No. 14–0424–CG–C) (S.D.Ala. Jan. 26, 2015), which enjoined the Alabama Attorney General from enforcing Alabama’s Sanctity of Marriage Amendment, Art. I, § 36.03, Ala. Const.1901 (“the marriage amendment”), and the Alabama Marriage Protection Act, § 30–1–19, Ala.Code 1975 (“the marriage act”). The petition further stated:
“On February 8, 2015, Chief Justice Roy S. Moore of the Supreme Court of Alabama entered an administrative order ruling that neither the Searcy nor the Strawser

“Chief

Justice

Moore’s

Administrative Order provides a

separate basis for mandamus relief

because it directly prohibits all

Alabama probate judges from

issuing marriage licenses to

same-sex couples in violation of

the Marriage Amendment and the

Marriage Act. (Admin. Ord. (Ex.

C) at 5.) The Administrative Order

is binding on all probate judges for

the reasons stated in the order. Just

as mandamus is appropriate *562

for this Court to command a lower

court’s compliance [with] this

Court’s mandate, see, e.g., Ex parte

Ins. Co. of N. Am., 523 So.2d 1064,

1068–69 (Ala.1988), it is

appropriate for this Court to

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

command probate judges’ compliance with the Administrative Order.”
Because the petition requested, as an alternative to the determination of the constitutional issues, that this Court order the enforcement of the administrative order, I abstained from voting on this Court’s order of February 13, 2015, that ordered the respondents to file answers and permitted them to file briefs. I also abstained from voting on the opinion and order of March 3, 2015, that granted the petition and ordered the named probate judges “to discontinue the issuance of marriage licenses to same-sex couples.” On March 3, 2015, I explained in a note to my fellow Justices:

Brunswick–Balke–Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864 (1913) (construing federal law and noting that an appellate judge should not pass upon “the propriety, scope, or effect of any ruling of his own made in the progress of the cause in the court of first instance”).
Justice Shaw identified, however, an exception to the principle that a judge should not review a case in which the judge had participated below: “The principle that a judge must recuse himself or herself in an appeal where the judge ruled in the case while a member of a lower court has been held not to apply if the issue on appeal is different from the issue ruled upon below.” 172 So.3d at 355. In my administrative order, I addressed the issue whether probate judges in Alabama were bound by the orders in Searcy and Strange when they were not parties to those cases. This Court’s order of March 3, 2015, which held that the United States Constitution did not require a state to recognize same-sex marriage, mooted that issue.

“I have decided to abstain from voting in this case to avoid the appearance of impropriety in light of the memorandum of February 3, 2015, and the administrative order of February 8, 2015 that I provided to Alabama probate judges in my role as administrative head of the Unified Judicial System.”
I likewise have abstained from voting on subsequent orders in this case.

The issuance of the opinion in Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), on June 26, 2015, has sufficiently altered the posture of this case to cause me to reconsider my participation. The effect of Obergefell on this Court’s writ of mandamus ordering that the probate judges are bound to issue marriage licenses in conformity with Alabama law is a new issue before this Court. The controlling effect of Obergefell was not at issue when I earlier abstained from voting. The issue then addressed was the effect of the order of a federal district court, which I had addressed in my administrative order. *563 In his analysis of the recusal issue in Hinton, Justice Shaw said:

**52 In Ex parte Hinton, 172 So.3d 348 (Ala.2012), Justice Shaw addressed the question whether he could sit on a case “given that it was previously before me when I was a judge on the Court of Criminal Appeals.” 172 So.3d at 353. Canon 3.C.(1), Ala. Canons of Jud. Ethics, states: “A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned....” Justice Shaw noted that “ ‘a reasonable person has a reasonable basis to question the impartiality of a judge who sits in [an appellate court] to review his own decision as a trial
judge.’ ” 172 So.3d at 354–55 (quoting Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir.1978)). See § 12–1–13, Ala.Code 1975. For an analogous reason I declined to vote in this case when my administrative order was potentially under review. Compare Rexford v.

“Participation in the instant case does not involve a determination of the correctness, propriety, or appropriateness of what I did as a member of the Court of Criminal Appeals in Hinton v. State, because we are now faced with an issue that had not been decided by the trial court in the case that was before the Court of Criminal Appeals while I was serving on that court. My impartiality cannot be questioned because I am not called upon to

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

review my prior decision....”
**53 172 So.3d at 355. Likewise in this case, the issue now before the Court “does not involve a determination of the correctness, propriety, or appropriateness” of my administrative order.

violate the laws of the State of Alabama, such as murder, rape, and robbery, but my personal opposition to the above acts does not prevent me from fairly and unbiasedly participating in cases involving such acts.”

In joining this case to consider the effect of Obergefell, I am not sitting in review of my administrative order, nor have I made any public statement on the effect of Obergefell on this Court’s opinion and order of March 3, 2015. My expressed views on the issue of same-sex marriage are also not disqualifying.

Barber, 960 So.2d at 620 (Bolin, J., statement of
nonrecusal) (emphasis added). See also Barber, 960 So.2d at 618 (Stuart, J., statement of nonrecusal) (stating that her “decision in a case [is] based on the application of the law to the facts in that particular case, regardless of my personal opinion”).

“ ‘A judge’s views on matters of law and policy ordinarily are not legitimate grounds for recusal, even if such views are strongly held. After all, judges commonly come to a case with personal views on the underlying subject matter.... Far from necessarily warranting recusal, typically such views merely mark an active mind.’ ”
Barber v. Jefferson Cty. Racing Ass’n, Inc., 960 So.2d 599, 618 (Ala.2006) (Stuart, J., statement of nonrecusal) (quoting United States v. Snyder, 235 F.3d 42, 48 (1st Cir.2000) (citations omitted)).

Although I have made public comments critical of Obergefell in which I quoted extensively from the four dissenting Justices in that case, “ ‘a judge’s expressing a viewpoint on a legal issue is generally not deemed to be disqualifying in and of itself; this is usually true without regard to where such judicial views are expressed, and even if they are expressed somewhat prematurely or harshly.’ ” Ex parte Ted’s Game Enters., 893 So.2d 376, 392 (Ala.2004) (See, J., statement of nonrecusal) (quoting Richard E. Flamm, Judicial Disqualification § 10.7 (1996)). Most noteworthy, I have not publicly commented on the question whether this Court is bound to follow Obergefell or on the effect of Obergefell on this Court’s March 3, 2015, order.1
*564 Furthermore, my job as Chief Justice requires me to participate in every case in which I am qualified to sit.

In Barber, the defendants were charged with “operating illegal gambling devices at the Birmingham Race Course.” 960 So.2d at 601. They sought Justice Bolin’s recusal because a voter guide for the 2004 election listed him as opposing gambling. Justice Bolin responded as follows:
“My position on that issue is consistent with the law of Alabama; gambling is illegal in this State. I also oppose other acts that

**54 “By establishing a Supreme Court consisting of nine Justices, Alabama law presumes that those Justices have something of value to contribute to the resolution of a case. Consequently, when a Justice recuses himself or herself unnecessarily, the recusal deprives the parties and the public of the benefit of the Justice’s participation and the Justice fails to do the job he or she was elected to do.”

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

Jones v. Kassouf & Co., 949 So.2d 136, 145 (Ala.2006) (Parker, J., statement of nonrecusal). Even when issues are difficult and controversial, a judge must decide. “It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants.”
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). See also Federated Guar. Life Ins. Co. v. Bragg, 393 So.2d 1386, 1389 (Ala.1981) (stating that “ ‘it is the duty of the judge to adjudicate the decisive issues involved in the controversy ... and to make binding declarations concerning such issues, thus putting the controversy to rest’ ” (quoting 26 C.J.S. Declaratory
Judgments § 161 (1956))); McGough v. McGough, 47 Ala.App. 223, 226, 252 So.2d 646, 648–49 (Ala.Civ.App.1970) (“If a judge is not disqualified or incompetent under statute, constitution or common law, it is his duty to sit, a duty which he cannot delegate or repudiate.”).
Because it is a judge’s duty to decide cases, a judge may participate in a case after initially not sitting if the issues that prompted that abstention have changed. A recent case illustrates the application of this procedure. The petition
for a writ of certiorari in American Broadcasting Cos. v. Aereo, Inc., 573 U.S. ––––, 134 S.Ct. 2498, 189 L.Ed.2d 476 (2014), according to the Supreme Court docket sheet, was filed October 11, 2013. The Court granted the petition on January 10, 2014. The docket sheet contains a notation that Justice Alito did not participate in the decision to grant certiorari. On March 3, 2014, the Court denied a motion to intervene. The docket sheet shows that Justice Alito did not participate in that decision either. Under the date of April 16, 2014, however, the docket sheet states: “Justice Alito is no longer recused in this case.” Justice Alito participated in the oral argument on April 22 and dissented when the opinion was released on June 25. Thus, in Aereo, Justice Alito recused himself and then unrecused himself. The
same scenario played out in Stoneridge Investment Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). Chief Justice Roberts, who did not vote on the decision to grant certiorari on March 26, 2007, “unrecused” himself on September 20 in time to participate in the oral argument on October 9 and in the final decision.2
As explained above, I abstained from voting in this case to avoid sitting in review of my own administrative order. Because that order is no longer at issue in this case, I may

appropriately sit on the case to review a different issue. A federal court noted that in certain instances a trial judge who had disqualified himself “could *565 resume direction or even decide the issues.... But the reason for resuming control should be more than a second reflection on the same facts which the trial judge considered
originally disqualified him.” Stringer v. United States, 233 F.2d 947, 948 n. 2 (9th Cir.1956). The relevant facts in this case are not the same because my administrative order is no longer at issue, having been superseded by orders of the entire Court.

MOORE, Chief Justice (concurring specially).

**55 On June 26, 2015, by a bare 5–4 majority, the United States Supreme Court declared that all states must now recognize a fundamental right to “same-sex

marriage.” Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). Because the Alabama Supreme Court had previously issued orders in this case directing the probate judges of this State not to issue marriage licenses to couples of the same sex, the Court requested briefing on the effect of Obergefell on those orders. See Ex parte State ex rel. Alabama Policy Inst., 200 So.3d 495 (Ala.2015). Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court’s holding therein that the Sanctity of Marriage

Amendment, art. I, § 36.03, Ala. Const.1901, and the

Alabama Marriage Protection Act,

§ 30–1–19,

Ala.Code 1975, are constitutional. Therefore, and for the

reasons stated below, I concur with the order.

In particular, I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefell is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752

I. Amending the United States Constitution by Judicial Fiat
Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefell is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution.

A. Amending the Constitution in Violation of Article V
**56 In reality, the Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act. The Constitution in Article V provides the only means for amending its provisions:

“The Congress, whenever two

thirds of both Houses shall deem it

necessary,

shall

propose

Amendments to this Constitution,

or, on the Application of the

Legislatures of two thirds of the

several States, shall call a

Convention for proposing

Amendments, which, in either

Case, shall be valid to all Intents

and Purposes, as Part of this

Constitution, *566 when ratified by

the Legislatures of three fourths of

the several States, or by

Conventions in three fourths

thereof....”

process requires the ratification of three-quarters of the states, not a mere 5 out of 9 Justices on the Supreme Court. The Obergefell majority states that the Founders anticipated that the Constitution might require alteration. Employing Justice Anthony Kennedy’s signature rhetoric, the opinion states:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
576 U.S. at ––––, 135 S.Ct. at 2598. I submit that our Founders knew a lot more about freedom than this passage indicates. They secured the freedoms we enjoy, not in judicial decrees of newly discovered rights, but in the Constitution and amendments thereto. That a majority of the Court may identify an “injustice” that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment.
Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it. In 1965 Justice Hugo Black, in a critique of such judicial activism, commented on the Court’s discovery of a heretofore unknown constitutional right for married couples to use contraception—a right supposedly found in the “penumbra” of the Bill of Rights. He stated:

U.S. Const., art. V (emphasis added). The amendment

“The Constitution makers knew the need for change and provided for it. Amendments suggested by the

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people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.”
Griswold v. Connecticut, 381 U.S. 479, 522, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Black, J., dissenting). In 1983, Brevard Hand, the Chief Judge of the United States District Court for the Southern District of Alabama, stated: “Amendment through judicial fiat is both unconstitutional and illegal. Amendment through judicial fiat breeds disrespect for the law, and it undermines the very basic notion that this country is governed by laws and not by men.” Jaffree v. Board of Sch. Comm’rs of Mobile Cty., 554 F.Supp. 1104, 1126 (S.D.Ala.1983), rev’d Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983). George Washington warned against attempts to usurp the Article V revision process:
“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
**57 Farewell Address (September 17, 1796), 12 The Writings of George Washington 226 (Jared Sparks ed., 1838) (emphasis added).
Novel departures from the text of the Constitution by the Court are customarily accompanied by pretentious language employed *567 to conceal the illegitimacy of its actions. Justice Scalia in his Obergefell dissent refers to this abandonment of “disciplined legal reasoning” as a

descent into “the mystical aphorisms of the fortune
cookie.” 576 U.S. at –––– n. 22, 135 S.Ct. at 2630 n. 22. Among some of the more ostentatious phrases used in the majority opinion that might be more suitable to a romance novel are the following:
• “Marriage responds to the universal fear that a lonely person might call out only to find no one
there.” 576 U.S. at ––––, 135 S.Ct. at 2600.
• The “hope [of homosexuals] is not to be condemned to live in loneliness, excluded from one
of civilization’s oldest institutions.” 576 U.S. at ––––, 135 S.Ct. at 2608.
• “A truthful statement by same-sex couples of what
was in their hearts had to remain unspoken.” 576 U.S. at ––––, 135 S.Ct. at 2596.
The opinion appeals more to emotion than law, reminding one of the 1974 song “Feelings” by Morris Albert, which begins: “Feelings, nothing more than feelings....” The Court’s opinion speaks repeatedly of homosexuals being humiliated, demeaned, and denied “equal dignity” by a state’s refusal to issue them marriage licenses. The majority seeks to invoke the grief, sorrow, and compassion associated with a Greek tragedy. Riding a tidal wave of emotion, the ensuing tears and pathos then suffice to fertilize a new constitutional right nowhere mentioned in the Constitution itself.
Abandoning the role of interpreting the written Constitution, the majority has instead decided to become the supposed “voice” of the people, discerning the people’s sentiments and updating the document accordingly. The function of keeping the Constitution up with the times, however, has not been delegated to the Court—or to Congress or the President; that function is reserved to the states under Article V. Alexander Hamilton stated: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.” The Federalist No. 78, at 527–28 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Obergefell is a clear example of such “presumption.” Consider the following quotations from the majority opinion:
• “When new insight reveals discord between the

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Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
576 U.S. at ––––, 135 S.Ct. at 2598 (emphasis added).
**58 • “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the
fundamental right to marry is now manifest.” 576 U.S. at ––––, 135 S.Ct. at 2602 (emphasis added).
• “[Rights] rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”
576 U.S. at ––––, 135 S.Ct. at 2602 (emphasis added).
• “[N]ew insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed
and unchallenged.” 576 U.S. at ––––, 135 S.Ct. at 2603 (emphasis added).
• “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment ... entrusted to future generations a charter protecting *568 the right of all persons to enjoy liberty as we learn its meaning.” 576 U.S. at ––––, 135 S.Ct. at 2598 (emphasis added).
An updating of the Constitution based on new insights and better informed societal understandings that are now manifest as we learn its meaning must arise solely from a “solemn and authoritative act” of the people pursuant to Article V, not from judicial innovation based on a “presumption, or even knowledge, of their sentiments.” The Federalist No. 78.

“[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”
Jacobson v. Massachusetts, 197 U.S. 11, 26, 25 S.Ct. 358, 49 L.Ed. 643 (1905).
Throughout the majority opinion Justice Kennedy speaks of the “dignity” of marriage and blatantly asserts that “[t]here is dignity in the bond between two men or two
women who seek to marry.” 576 U.S. at ––––, 135 S.Ct. at 2599. Historically, consummation of a marriage always involved an act of sexual intimacy that was dignified in the eyes of the law. An act of sexual intimacy between two men or two women, by contrast, was considered “an infamous crime against nature” and a “disgrace to human nature.” 4 William Blackstone, Commentaries on the Laws of England *215. Homosexuals who seek the dignity of marriage must first forsake the sexual habits that disqualify them from admission to that hallowed institution. Surely more dignity attaches to participation in a fundamental institution on the terms it prescribes than to an attempt to wrest its definition to serve inordinate lusts that demean its historic dignity. A “disgrace to human nature” cannot be cured by stripping the institution of holy matrimony of its inherent dignity and redefining it to give social approval to behaviors unsuited to its high station. Sodomy has never been and never will be an act by which a marriage can be consummated.

B. The True Meaning of Liberty

The Declaration of Independence identifies the source of “liberty” under the American system of government:

The Obergefell majority’s theory of constitutional law also overlooks the reality that the purpose of law is to restrain behavior for the public good.

**59 “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that

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among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed....”
The Declaration of Independence para. 2 (U.S. 1776).3 “Liberty,” an unalienable right, is an endowment of the Creator. “The God who gave us life gave us liberty at the same time....” Thomas Jefferson, A Summary View of the Rights of British America, at 23 (1774). Government exists to secure that right. Because liberty is a gift of God, it must be exercised in conformity with the laws of nature and of *569 nature’s God. “[T]he natural liberty of mankind ... consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature....” 1 Blackstone, Commentaries *121 (emphasis added).
Liberty in the American system of government is not the right to define one’s own reality in defiance of the Creator. The libertarian creed of unbridled self-definition is capsulized in Justice Kennedy’s oft-quoted statement: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of
the mystery of human life.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). But the human being, as a dependent creature, is not at liberty to redefine reality; instead, as the Declaration of Independence states, a human being is bound to recognize that the rights to life, liberty, and the pursuit of happiness are endowed by God. Those rights are not subject to a redefinition that rejects the natural order God has created.
“Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being.” 1 Blackstone, Commentaries *39. Part of that natural order is the institution of marriage as the union of a man and a woman. “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” Genesis 2:24. The Obergefell majority’s false definition of marriage arises, in great part, from its false definition of liberty. Separating man from his Creator, the majority plunges the human soul into a wasteland of meaninglessness where every man defines his own anarchic reality. In that godless world nothing has meaning or consequence except as the human being desires. Man then becomes the

creator of his own reality rather than a subject of the Creator of the Declaration. See Romans 1:25 (identifying those “[w]ho changed the truth of God into a lie, and worshipped and served the creature more than the Creator”).
This false notion of liberty, which permeates the majority opinion in Obergefell, is the ultimate fallacy upon which it rests. In a world with God left out, the moral boundaries of Scripture disappear, and man’s corrupt desires are given full rein. The end of this experiment in anarchic liberty is yet to be seen. The great sufferers will be the children—deprived of either a paternal or a maternal presence—who are raised in unnatural families that contradict the created order. A political scientist states: “ ‘[T]he traditional family, the embodiment and expression of the “laws of nature and of nature’s God,” as the foundation of a free society, has become merely one of many “alternative lifestyles.” ... A free people who succumbs to such a teaching cannot long endure.’ ” Samuel H. Dresner, Can Families Survive in Pagan America? 99 (1995) (quoting Harry V. Jaffa, Homosexuality and the Natural Law 38 (1990)). As Thomas Jefferson stated:
**60 “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just; that his justice cannot sleep forever....”
“Notes on the State of Virginia” (1787), in 8 The Writings of Thomas Jefferson 404 (H.A. Washington ed., 1854).
C. Abuse of the Fourteenth Amendment
The invocation of “equal dignity” to justify the invention

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of a heretofore unknown *570 constitutional right is just another judicial mantra to rationalize the invalidation of state laws that offend the policy preferences of a five-person majority. The notion of “equal dignity,” as this Court recently stated, “is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.” Ex parte State ex rel. Alabama Policy Institute 200 So.3d 495, 547 (Ala.2015) (“API ”). Justice Black once stated: “There is ... no express constitutional language granting judicial power to invalidate every state law of every kind deemed ‘unreasonable’ or contrary to the Court’s notion of
civilized decencies....” Rochin v. California, 342 U.S. 165, 176, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (Black, J., concurring). In 1930, in the waning days of his judicial career, Justice Oliver Wendell Holmes expressed his alarm at the elastic qualities the Supreme Court had ascribed to the Fourteenth Amendment to satisfy the Court’s desire to exercise plenary supervision over state legislation: “I cannot believe that the [Fourteenth] Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its
prohibitions.” Baldwin v. Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 74 L.Ed. 1056 (1930) (Holmes, J., dissenting).
As late as 1986, the United States Supreme Court specifically declared:

2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The “claimed right” of which the Court spoke in Bowers was the “right” to commit sodomy. Although the Court in 1986 adamantly refused to recognize any such right in the United States Constitution, the Lawrence v. Texas opinion did just that 17 years later. Nevertheless, the Supreme Court’s admonition in 1986 that expanding the substantive reach of the Fifth and Fourteenth Amendments to redefine fundamental rights like marriage would give the Court “further authority to govern the
country without express constitutional authority,” 478 U.S. at 195, is still true and can clearly be seen in Obergefell.
The “fundamental right” to marriage the Supreme Court has invoked in previous cases always involved the right of
a man and a woman to marry. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), cited as a precedent for constitutional review of state marriage laws
by the Obergefell majority, 576 U.S. at ––––, 135 S.Ct. at 2598–99, did not change this fact, but only removed a race-based barrier to participation in that institution. No one doubts that the Fourteenth Amendment was designed to remove such civil disabilities. Equally indisputable is that the states that ratified the Fourteenth Amendment in 1868 did not remotely intend to empower the federal courts to redefine marriage to include same-sex marriage.

**61 “There should be, therefore,

great resistance to expand the

substantive reach of [the Due

Process Clauses of the Fifth and

Fourteenth

Amendments],

particularly if it requires redefining

the category of rights deemed to be

fundamental. Otherwise, the

Judiciary necessarily takes to itself

further authority to govern the

country

without

express

constitutional authority. The

claimed right pressed on us today

falls far short of overcoming this

resistance.”

The majority opinion in Obergefell represents the culmination of a change in our form of government from one of three separate-but-equal branches to one in which the judicial branch now exercises *571 the power of the legislative branch.4 President George Washington asserted that this “spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” Farewell Address, at 226. And thus by the weapon of judicial usurpation, free government is destroyed.
The Constitution limits the power of the federal government in order to protect the right of the people to govern themselves. See U.S. Const. amends. IX & X.5 In his criticism of the Court’s invention of a constitutional right to bring contraceptive devices into the marital chamber, Justice Potter Stewart stated:

Bowers v. Hardwick, 478 U.S. 186, 195, 106 S.Ct.

“If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the

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people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”

**62

Griswold, 381 U.S. at 531 (Stewart, J.,

dissenting). The Obergefell majority, presuming to

know better than the people themselves how to order

the fundamental domestic institution of society, has

usurped the legislative prerogatives of the people

contrary to the Ninth and Tenth Amendments.

II. The Dissenters’ Critique
The four dissenters in Obergefell convincingly detail the illegitimacy of the majority opinion.

A. Chief Justice Roberts
The Chief Justice describes the pretended judicial acts of the majority as a form of theft. “Five lawyers have ... enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will
for many cast a cloud over same-sex marriage....” 576 U.S. at ––––, 135 S.Ct. at 2612 (emphasis added). He states flatly: “The right [the majority] announces has no basis in the Constitution or this Court’s precedent.” Id. He accuses the majority of “order[ing] the transformation of a social institution that has formed the basis of human society for millennia” based on “its desire to remake society according to its own ‘new insight’ into ‘the nature of injustice.’ ” Id. In short, the majority acts not as a court of law but as a band of social revolutionaries. The Chief Justice, amazed at this presumption, exclaims: “Just who do we think we are?” Id.
The Chief Justice underscores the serious consequences of acquiescence to the majority’s assumption of illegitimate power. The majority, he states, “seizes for
itself a question the Constitution leaves to the people.” 576 U.S. at ––––, 135 S.Ct. at 2612. The real issue, he explains, “is about whether, in our democratic republic, that decision [regarding the definition of marriage] should rest with the people acting through their elected

representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.” Id. He also points out that all previous decisions *572 of the Supreme Court that treated marriage as a fundamental right rested on “the core structure of marriage as the union between a man and a woman.”
576 U.S. at ––––, 135 S.Ct. at 2614.
“[T]he majority’s approach,” states the Chief Justice, “has no basis in principle or tradition except for the
unprincipled tradition of judicial policymaking.” 576 U.S. at ––––, 135 S.Ct. at 2616. Thus, “the majority’s position [is] indefensible as a matter of constitutional law.” Id. In support of this point, the Chief Justice draws on Justice Benjamin Curtis’s dissent in Dred Scott v.
Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857). Remonstrating against the Dred Scott majority’s novel effort at enforcing a pax judicatus on the slavery issue, Justice Curtis warned that, when the “ ‘fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control’ ” the meaning of the Constitution, “ ‘we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own
views of what it ought to mean.’ ” 576 U.S. at ––––, 135 S.Ct. at 2617 (quoting Dred Scott, 60 U.S. (19 How.) at 621).
The Chief Justice’s quotation of Justice Curtis’s Dred Scott dissent merits serious consideration. If acquiescence to Obergefell indicates that “we have no longer a Constitution,” then the legitimacy of Obergefell is subject to grave doubt. If five Justices of the Supreme Court may at will redefine the Constitution according to their own policy preferences, the mechanism of judicial review, designed originally to protect the rights of the people from runaway legislatures, has morphed into the right of five lawyers to rule the people without their consent.
**63 By employing the Constitution as a license to create
social policy for the nation, the Court, states the Chief Justice, becomes “a legislative chamber.” 576 U.S. at ––––, 135 S.Ct. at 2617 (quoting Learned Hand, The Bill of Rights, The Oliver Wendell Holmes Lectures, 1958 42 (1977)). Are the true legislative bodies of this country obligated to respect such a usurpation of their own prerogatives? The Chief Justice quotes Justice Byron White as follows: “ ‘The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy

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when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the
design of the Constitution.’ ” 576 U.S. at ––––, 135
S.Ct. at 2618 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 544, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (White, J., dissenting)).6 Such is the reality of the majority opinion in Obergefell.
Other concerns, states Chief Justice Roberts, appear in the wake of the majority’s “freewheeling notion of individual
autonomy.” 576 U.S. at ––––, 135 S.Ct. at 2621. If the opinion reflects no more than “naked policy preferences,” id., with no basis in the Constitution, what is to restrain the Court from inventing other new “liberties” the majority may imagine? The Chief Justice sees nothing in the majority opinion that would be incompatible with the declaration of a constitutional right to polygamy. The majority, he states, “offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may
not.” 576 U.S. at ––––, 135 S.Ct. at 2621. Polygamy, he notes, has more of a tradition in the *573 world’s cultures than same-sex marriage. “If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.” Id. Indeed, as the Chief Justice warns, the plenary power the majority asserts to redefine the fundamental institutions of society offers no assurance that it will not give birth to yet further attacks on the social order.
The majority ostensibly relies on the Due Process Clause of the Fourteenth Amendment to justify its mandate for an unprecedented social revolution. But, as the Chief Justice states: “The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking,
what can?” 576 U.S. at ––––, 135 S.Ct. at 2622. Noting that the majority’s actions are “dangerous for the rule of law,” id., the Chief Justice states that by undermining respect for the Court’s judgments, the majority draws into question the Court’s legitimacy. Decrying “the majority’s extravagant conception of
judicial supremacy,” 576 U.S. at ––––, 135 S.Ct. at 2624, he notes its absence of humility or restraint. “Over and over,” he states, “the majority exalts the role of the judiciary in delivering social change.” Id.

**64 “Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”
Id.
If, as the Chief Justice demonstrates, a governing majority of the Supreme Court has departed from the vision of the Founders, are the rest of us also required to depart from the founding principles of this republic? Or should we adhere to the principles of representative government—government by the people—and repudiate the judicial majority that orders otherwise? The Chief Justice emphasizes that the majority’s actions have no basis in law: “Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right [to same-sex marriage].
None exists....” 576 U.S. at ––––, 135 S.Ct. at 2619. Contemplating the role of the Constitution in the opinion of the majority, he concludes: “It had nothing to do with it.” 576 U.S. at ––––, 135 S.Ct. at 2626. If, as the Chief Justice asserts, the opinion of the majority is not based on the Constitution, do state judges have any obligation to obey that ruling? Does not their first duty lie to the Constitution? Otherwise, as Justice Curtis stated in his Dred Scott dissent, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” 60 U.S. (19 How.) at 621.
B. Justice Scalia
Justice Scalia, who joined in full the dissent of Chief Justice Roberts, echoes the theme of a threat to our republican form of government. He notes the demise of constitutional government in the ashes of the majority’s

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opinion razing the institution of marriage. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine
lawyers on the Supreme Court.” 576 U.S. at ––––, 135 S.Ct. at 2627. Justice Scalia underscores this point: “This practice of constitutional revision by an unelected committee of nine ... robs the People of the most

thus intimates that the refusal of the states to recognize the legitimacy of the Obergefell decision, “one that is unabashedly based not on law,” would be a healthy reminder of the Court’s “impotence” in the face of a refusal to acquiesce to its systematic destruction of
popular government. 576 U.S. at ––––, 135 S.Ct. at 2631.7

important liberty they asserted in the

*574

Declaration of Independence and won in the Revolution

of 1776: the freedom to govern themselves.” 576 U.S. at

––––, 135 S.Ct. at 2627 (emphasis added).

The opinion of the majority, he further states, “lacks even

C. Justice Thomas

a thin veneer of law.” 576 U.S. at ––––, 135 S.Ct. at 2628. Thus, “[t]he naked judicial claim to legislative—indeed, super-legislative—power [is] fundamentally at odds with our system of government,”
and “makes the People subordinate to a committee of nine unelected lawyers.” 576 U.S. at ––––, 135 S.Ct. at 2629. Contending that the majority opinion lacks legal legitimacy, he terms it “a social upheaval,” i.e., a social revolution. Id. The right to change the form of government in this country belongs to the people themselves through the amendment process, not to judicial oligarchs. Justice Scalia describes the majority’s ruling as a “judicial Putsch.” Id. A “putsch” is “a secretly plotted and suddenly executed attempt to overthrow a government.” Merriam–Webster’s Collegiate Dictionary 1013 (11th ed. 2009). The word is most commonly associated with Adolf Hitler’s 1923 attempt to seize power in Germany. Justice Scalia’s use of this term underscores the revolutionary nature of the majority’s presumptive exercise of judicial power to remake the social order.
**65 Justice Scalia concludes that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no
social transformation without representation.” 576 U.S. at ––––, 135 S.Ct. at 2629 (emphasis added). Justice Scalia’s estimation that the majority’s social revolution is a more outrageous abuse of power than the events that immediately triggered the American Revolution is very sobering. The judiciary, he states, “ ‘must ultimately depend upon the aid of the executive arm’ and the States,

Justice Thomas adds his analysis to the fusillade of criticism of the majority opinion. He attacks in particular the invocation of the doctrine of “substantive due process” that allows the Court to invent new rights out of the word “liberty” in the Due Process Clause. Like Chief Justice Roberts and Justice Scalia, he sounds the alarm at this rending of the fabric of our country: “By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom
they derive their authority.” *575 576 U.S. at ––––, 135 S.Ct. at 2631. He notes that this expansive and “imaginary” use of the Due Process Clause “wip[es] out with a stroke of the keyboard the results of the political
process in over 30 States.” 576 U.S. at ––––, 135 S.Ct. at 2632 and n. 1. The entitlement to a marriage license with the accompanying government benefits, he notes, is inconsistent with the historic meaning of “liberty” as a
“freedom from physical restraint.” 576 U.S. at ––––, 135 S.Ct. at 2633. Neither the Founders nor the authors of the Fourteenth Amendment considered that the right not to be deprived of liberty without due process of law encompassed a positive entitlement to governmental benefits. “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular
governmental entitlement.” 576 U.S. at ––––, 135 S.Ct. at 2634. Thus, “receiving governmental recognition and benefits has nothing to do with any understanding of
‘liberty’ that the Framers would have recognized.” 576 U.S. at ––––, 135 S.Ct. at 2636.

‘even for the efficacy of its judgments.’ ” 576 U.S. at ––––, 135 S.Ct. at 2631 (quoting The Federalist No. 78, at 522–23 (Alexander Hamilton) (J. Cooke ed., 1961)). He

D. Justice Alito

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**66 Justice Alito notes that the majority’s definition of “liberty” has “a distinctively postmodern meaning” in which “five unelected Justices ... impos [e] their personal vision of liberty upon the American people.” 576 U.S. at ––––, 135 S.Ct. at 2640. He recognizes that the fundamental purpose of marriage historically has been to provide for the welfare of children and not merely to contribute to the well-being of adults. The rising rate of out-of-wedlock pregnancy has contributed to the decay of marriage by fraying the tie between marriage and procreation.8 576 U.S. at ––––, 135 S.Ct. at 2641. Many states legitimately worry that abandoning the traditional definition “may contribute to marriage’s further decay.” 576 U.S. at ––––, 135 S.Ct. at 2642. Thus, “[it] is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed ... all around the globe.” Id.
Justice Alito, like the other dissenters, points out that the majority has created a constitutional right out of thin air:
“ ‘[T]he Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.’ ”
576 U.S. at ––––, 135 S.Ct. at 2642 (quoting United States v. Windsor, 570 U.S. ––––, ––––, 133 S.Ct. 2675, 2716, 186 L.Ed.2d 808 (2013) (Alito, J., dissenting)). In harmony with his dissenting colleagues, Justice Alito asserts that “[t]oday’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” 576 U.S. at ––––, 135 S.Ct. at 2642.
“If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to

do is their own sense of what those with political power and cultural influence are willing to tolerate....
*576 “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.... What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”
576 U.S. at ––––, 135 S.Ct. at 2643
E. Summing Up Obergefell: An Unlawful and Illegitimate Decision
The dissenting Justices have accurately described in detail the illegitimacy of the majority’s decision in Obergefell. Their criticisms go far beyond mere disagreement with the philosophical and public-policy arguments upon which the majority opinion relies. Instead, the dissenting Justices employ strong language and vivid metaphors to portray the seriousness of the majority’s bold attack on the foundations of representative government and the collateral damage to religious liberty.
Their language is stirring and forthright:
**67 Chief Justice Roberts portrays the majority as thieves who are “stealing” the marriage issue from the people. Justice Scalia uses a similar metaphor, stating that the majority “robs the People of ... the freedom to govern themselves.” These metaphors identify the essence of the majority’s actions: an illegal displacement and usurpation of the democratic process. Chief Justice Roberts accuses the majority of imposing “naked policy preferences” that have “no basis in the Constitution.” Accordingly, the majority’s “extravagant conception of judicial supremacy” is “dangerous for the rule of law.” The unmistakable theme that emerges from these critiques is lawlessness. A body whose reason for being is to apply the law has instead forsaken the law for a lawless imposition of the latest postmodern assault on the natural order. The majority are judges in name only, having in fact forsaken the judicial role to engage in “remaking society” and transforming—without legal authority—the most fundamental social institution.

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Justice Scalia also emphasizes the revolutionary character of the majority’s assault on the social order—elevating the “crime against nature” into the equivalent of holy matrimony.9 This decision, “unabashedly not based on law,” represents a “social upheaval” and a “judicial Putsch.” Justice Alito sounds the same themes. The Court has not unwittingly tread into forbidden territory; instead, it has acted “far beyond the outer reaches” of its authority, boldly trampling the right of the people “to control their own destiny.”

III. The Precursors to Obergefell

For the last 50 years, the Supreme Court has consistently misused the Fourteenth Amendment to destroy state laws that protect the marital relation and its offspring. Obergefell is the latest fruit of this corrupt tree. Matthew 7:17–18.

In

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.

1678, 14 L.Ed.2d 510 (1965), the Court found in

“penumbras, formed by emanations” from the “specific

guarantees in the Bill of Rights,” a right of “privacy” for

married couples to use contraceptives.

Id. at 484.

That opinion, explained a dissenter, “prevents state

legislatures from passing any law deemed by this Court to

interfere with ‘privacy.’ ”

Id. at 510 n. 1 (Black, J.

dissenting). By holding unconstitutional a law that was

not forbidden by *577 a specific provision of the

Constitution, the Court quietly assumed the power to

negate any state legislation of which it disapproved. As

Justice Black stated:

“[N]o provision of the Constitution ... either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The

adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.”
381 U.S. at 520–21 (Black, J., dissenting) (emphasis added).
**68 Speaking 50 years before the issuance of the majority opinion in Obergefell, Justice Black presciently anticipated its reasoning:
“I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes.”
381 U.S. at 522.10 Assuredly, Justice Black would not have agreed with Justice Kennedy’s grandiloquent “nature-of-injustice” passage and his invocation of the right of the Court to draw limitless new rights out of the bottomless depths of the Due Process Clause “as we learn

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its meaning.”11 Truly, the less basis the majority has for its innovations upon the Constitution, the grander is the language employed to justify them, as if high-blown rhetoric could compensate for the absence of constitutional substance.
Griswold was the first car on the illicit and unconstitutional train that led from contraception to abortion and then on to sodomy and same-sex marriage. In 1972, the Court extended the penumbral right of contraception to the unmarried, deconstructing the union of husband and wife that infused Griswold into merely
“an association of two individuals.” Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child.” 405 U.S. at 453. Venturing beyond “the sacred precincts of marital bedrooms,”
Griswold, 381 U.S. at 485, the Court anointed with constitutional protection the use of contraceptive devices *578 by the unmarried, setting its seal of approval upon fornication. And if anyone found the extension of Griswold to the unmarried to be less than convincing, the Court had ready at hand an additional rationale: Allowing the use of such devices by the married, but not the unmarried, violated the Equal Protection Clause. The married and the unmarried, the Court amazingly held, were “similarly situated” in regard to contraceptive use. Thus, “the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but
not to married persons.” Eisenstadt, 405 U.S. at 454. See John Hart Ely, The Wages of Crying Wolf, A Comment on Roe v. Wade, 82 Yale L.J. 920, 929 n. 68 (1973) (commenting on “the Eisenstadt Court’s obviously strained performance respecting the Equal Protection Clause”).12
Chief Justice Warren Burger dissented. Seeing nothing in the Fourteenth Amendment that prohibited a state from regulating the distribution of contraceptives, he noted that the Court had “seriously invade[d] the constitutional prerogatives of the States” and “passed beyond the penumbras of the specific guarantees into the
uncircumscribed area of personal predilections.” 405 U.S. at 467, 472 (Burger, C.J., dissenting).
**69 In Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the

Court took a further step down the road of immorality by crowning with constitutional dignity not only the general provision of contraceptives to minors but also the requirement that they be available over the counter. Thus saith the Due Process Clause. Justice William Rehnquist mused on the likely reaction of those who fought the Revolutionary War to establish the Bill of Rights and the Civil War to enact the Fourteenth Amendment:
“If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men’s room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.”
431 U.S. at 717 (Rehnquist, J., dissenting). Declining to engage in detailed analysis of the majority’s patently “indefensible result,” Justice Rehnquist explained that “no logic chopping can possibly make the fallacy of the result more obvious.” 431 U.S. at 718.
Having served the sexual revolution in the area of contraception, the Court then made constitutional the taking of the life of an unborn child. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), as it did in Griswold and Eisenstadt, and later in Carey, the Court tackled the difficulty of rationalizing the creation of a new constitutional right that had no colorable *579 basis in the Constitution. The Court ultimately asserted that the right to privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty ... or ... in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153.

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Justice Stewart, concurring, 410 U.S. at 167–71, suggested abandoning the effort to cobble together “right-of-privacy” emanations from the Bill of Rights and instead urged sole reliance on the word “liberty” in the Due Process Clause, an infinitely malleable term that has enabled the Court to generate custom-designed constitutional rights. Justice Rehnquist in dissent stated that Roe “partakes more of judicial legislation than it does of a determination of the intent of the drafters of the
Fourteenth Amendment.” 410 U.S. at 174, 93 S.Ct. 705. “To reach its result,” he added, “the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Id. Justice White, writing in the companion case to Roe, agreed: “I find nothing in the language or history of the Constitution to support the Court’s judgment.” Doe v. Bolton, 410 U.S. 179, 221, 93 S.Ct. 762, 35 L.Ed.2d 147 (1973) (White, J., dissenting). As one commentator observed: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution,” Ely, Wages, at 935, and “is not constitutional law and gives almost no sense of an obligation to try to be.” Id. at 947.

Obergefell is but the latest example of the Court’s creation of constitutional rights out of thin air in service of the immorality of the sexual revolution. Like Roe, Obergefell is no more than “an exercise of raw judicial power ... an improvident and extravagant exercise of the power of judicial review that the Constitution extends to

this Court.” dissenting).

Doe, 410 U.S. at 222 (White, J.,

**70 The incorporation of the sexual revolution into the
Constitution continued in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which used the Fourteenth Amendment to find a right to commit sodomy that the high court had specifically rejected only
17 years earlier in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Citing as “authority” Griswold, Eisenstadt, Roe, and Carey—a gallery of constitutional absurdities—the Court stated that “our laws and traditions in the past half century” “show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Lawrence, 539 U.S. at 571–72.13 Thus, the Court relied on a series of malformed decisions to justify yet another

bizarre departure from moral sanity—and all in defiance of the right of the people to govern themselves.
In language similar to that used in Obergefell, Justice Kennedy, the author of the majority opinion in Lawrence, stated:
*580 “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Lawrence, 539 U.S. at 578–79. Justice Kennedy unfortunately omitted the key consideration highlighted by Justice Black in his Griswold dissent: Amendments to the Constitution are the business of the people pursuant to Article V; they are not the business of the Court under Article III. Truth may not always be clearly seen, but the majority’s reasoning should not blind us to the reality that the Court seems determined to alter this nation’s organic law.
Justice Scalia, dissenting in Lawrence, criticized the Court’s discovery of yet another sexual-freedom right in the Constitution: “What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.” 539 U.S. at 603 (Scalia, J., dissenting). He also exposed the fallacy in Justice Kennedy’s “search-for-greater freedom” passage:
“It is indeed true that ‘later generations can see that

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laws once thought necessary and proper in fact serve only to oppress’ ...; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”
**71 539 U.S. at 603–04 (emphasis added).
The Obergefell case is but the latest in “a history of repeated injuries and usurpations.” Declaration of Independence para. 2. Among the “long train of abuses and usurpations” cited in the Declaration of Independence was Parliament “declaring themselves invested with power to legislate for us in all cases whatsoever.” Id. Obergefell is the culmination, beginning with Griswold in 1965, of 50 years of judicial usurpation of the right of the people to govern themselves and, in particular, of the states to protect from attack “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.”
Murphy v. Ramsey, 114 U.S. 15, 45, 5 S.Ct. 747, 29 L.Ed. 47 (1885).

do....”
12 William Waller Hening, The Statutes at Large, Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619, at 84 (Richmond 1823) (“12 Hening, Statutes”). The *581 Virginia Act then explains that to allow a “civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty.” 12 Hening, Statutes, at 85 (emphasis added).
The definition of marriage as the union of one man and one woman has existed for millennia and has never been considered an “ill tendency.” By contrast, the Court’s attempt to redefine marriage is “a dangerous fallacy which at once destroys all religious liberty.” As Justice Thomas explained in his dissent in Obergefell: “The Court’s decision today is at odds not only with the Constitution but with the principles upon which our
Nation was built.” 576 U.S. at ––––, 135 S.Ct. at 2631. Further, “the majority’s decision threatens the religious
liberty our Nation has long sought to protect.” 576 U.S. at ––––, 135 S.Ct. at 2638.

IV. The Unavoidable Collision with Religious Liberty
Religious liberty is the gift of God. The Virginia Act for Establishing Religious Freedom (1786), authored by Thomas Jefferson and considered one of his more notable achievements, begins:
“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to

In former times, the Court showed greater respect for God’s gift of religious freedom and deliberated more seriously on the subject. Upholding the denial of an application for citizenship based on conscientious objection to military service, Justice George Sutherland, writing for the Court, stated: “We are a Christian people according to one another the equal right of religious freedom, and acknowledging with reverence the duty of
obedience to the will of God.” United States v. Macintosh, 283 U.S. 605, 625, 51 S.Ct. 570, 75 L.Ed. 1302 (1931). In a dissent joined by three of his brethren, Chief Justice Charles Evans Hughes noted that the oath to uphold the Constitution administered to legislators and “all executive and judicial Officers,” U.S. Const., art. VI, ¶ 3, was similar to the naturalization oath. Yet the constitutional oath had not been regarded “as requiring one to promise to put allegiance to temporal power above what is sincerely believed to be one’s duty of obedience
to God.” Macintosh, 283 U.S. at 630 (Hughes, C.J., dissenting).
**72 Chief Justice Hughes recognized the serious issues presented when governmental power clashes with

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individual conscience:
“[W]ith many of our worthy citizens it would be a most heart-searching question if they were asked whether they would promise to obey a law believed to be in conflict with religious duty. Many of their most honored exemplars in the past have been willing to suffer imprisonment or even death rather than to make such a promise.”
283 U.S. at 631. Chief Justice Hughes further explained:
“The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.... One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God.”

“The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages, men have suffered *582 death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle.”
Girouard v. United States, 328 U.S. 61, 68, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). The Obergefell majority gives scant consideration to these concerns, even though they were presented by amici curiae. See, e.g., brief of amicus curiae Agudath Israel of America, at 17 (“The recognition of same-sex marriage poses a threat to the liberty of religious organizations and individuals whose faith prevents them from acting in accordance with that recognition.”); brief of amici curiae the General Conference of Seventh–Day Adventists and the Becket Fund for Religious Liberty, at 36 (stating that “adopting same-sex marriage will have significant negative effects on the ability of religious conscientious objectors to participate fully in society”).
**73 In the following passage the Obergefell majority vainly attempts to deflect attention from its egregious assault on religious liberty:

Macintosh, 283 U.S. at 633–34. The Obergefell majority, conspicuously overlooking the “essential and historic significance” of the connection between religious liberty and “supreme allegiance to the will of God,” failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.
Fifteen years after Macintosh was decided, the Court adopted the reasoning of Chief Justice Hughes in his Macintosh dissent. Justice William O. Douglas, writing for the Court, stated:

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment insures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the

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family structure they have long revered.”

concludes: “By imposing its own views on the entire country, the majority facilitates the marginalization of the
many Americans who have traditional ideas.” 576 U.S. at ––––, 135 S.Ct. at 2643.

576 U.S. at ––––, 135 S.Ct. at 2607 (emphasis added). Religious liberty, however, is about more than just “teaching” and “advocating” views of marriage. The majority condescendingly approves religious speech against same-sex marriage but not religious practice in conformity with those beliefs. As Chief Justice Roberts states in his dissent: “The First Amendment guarantees ... the freedom to ‘exercise’ religion. Ominously, this is not a word the majority uses.” 576 U.S. at ––––, 135 S.Ct. at 2625. Justice Thomas similarly notes that religious liberty “is about freedom of action in matters of religion generally,” not merely a right to speak and teach. 576 U.S. at ––––, 135 S.Ct. at 2638.
The seemingly unnecessary affirmation of a right to speak and teach one’s faith conceals an unstated implication that such speech is to have no practical effect on public policy. As Justice Alito comments: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
576 U.S. at ––––, 135 S.Ct. at 2642–43. Chief Justice Roberts states:
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.... Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
576 U.S. at ––––, 135 S.Ct. at 2625–26. Justice Alito

*583 **74 Significantly, Obergefell is a more serious threat to religious liberty than the contraception and abortion decisions. Although Roe granted the mother immunity from prosecution for hiring an abortionist to kill her unborn child, Roe did not compel any medical professional, who conscientiously opposed the practice, to participate in an abortion. In 1973, in the wake of Roe, Congress passed the Church Amendments, which protect individuals and entities who receive certain federal funding from participating in abortion or sterilization procedures contrary to their “religious beliefs or moral convictions.” 42 U.S.C. § 300a–7. Subsequent federal laws confirmed or expanded this protection. See Jody Feder, Cong. Research Serv., RS21428, The History and Effect of Abortion Conscience Laws (2005). Most states have adopted similar conscience-clause legislation. “[Forty-five] states allow some health care providers to refuse to provide abortion services.” Guttmacher Institute, State Policies in Brief: Refusing to Provide Health Services (July 1, 2015).14
Obergefell promises to breach the legal protections that have shielded believers from participating in acts hostile to their faith. As Chief Justice Roberts points out, the Obergefell majority piously declaims that people of faith may believe what they want and seek to persuade others, but it says nary a word about them practicing or exercising their faith as the Free Exercise Clause provides. A leading scholar of the Religion Clause states: “A right to believe a religion, but no right to act on its teachings, would be a hollow right indeed. Belief without practice was the conception of religious liberty that Oliver Cromwell offered to the Catholics of Ireland.” Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L.Rev. 839, 841 (2014). Cromwell stated that he would “ ‘meddle not with any man’s conscience,’ ” but that Catholics would not be permitted to say the mass. Id. at 841 n. 3 (quoting Christopher Hill, God’s Englishmen: Oliver Cromwell and the English Revolution 121 (1970)).
Because the issuance of marriage licenses is a state function, the individuals in this State whose conscience rights are implicated by Obergefell and any implementing orders are the probate judges and their staffs. The “must issue” order of the federal district court in Mobile potentially requires those probate judges who

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conscientiously object to issuing faux marriage licenses to violate their consciences or suffer civil penalties of fines and contempt. See Strawser v. Strange, 105 F.Supp.3d 1323 (S.D.Ala.2015). Justice Thomas in his dissent spoke of these looming enforcement measures as “civil restraints” with “potentially ruinous consequences.”
576 U.S. at ––––, 135 S.Ct. at 2638–39. In his “Emergency Petition for Declaratory Judgment and/or Protective Order,” Probate Judge Nick Williams echoed that concern, stating: “This Court must act to prevent the imprisonment and financial ruin of this state’s probate judges who maintain fidelity to their oath of office and their faith.”
Probate Judge John E. Enslen, realigned as a relator, adopted in full Judge Williams’s emergency filing and requested from this Court a forthright statement that Obergefell will not be allowed to impair his First Amendment rights under the Free Exercise Clause. He stated:
**75 “I, the undersigned, possess the following sincere religious beliefs which I hold sacred. I seek from this Court a *584 pronouncement of the full range of available legal protections for my First Amendment Rights relating to my following sincerely held religious beliefs:
“I believe that marriage was created by the Divine Creator of all mankind to be the sanctuary for the procreative act, regardless of whether or not said act results in the birth of children.
“I believe that our Divine Creator, by revelations to his chosen prophets throughout the ages, has instructed and commanded mankind, who are his spiritual offspring, to abstain from procreative activities and pseudo-procreative activities of any type outside of the bounds of a natural marriage between a man and a woman. I believe that the complementary anatomy of the male and female body is a tactical revelation of that truth from our Divine Creator.
“I believe that authentic marriage is a natural child-creating and natural child-rearing institution. I believe that as an institution, marriage should not be, and never has been, about satisfying the emotional needs of adults, and that marriage should not be reduced to a mere symbol of social inclusion.
“I believe that over time the adverse ramifications and consequences of ignoring the foregoing Divine

mandate will be irreversibly profound. I believe that children are this nation’s most important asset, and that our laws should foster the ideal family life where biological parents rear their children, and our laws should make exceptions only where absolutely necessary due to unavoidable circumstances.
“I believe that homosexuality is not an immutable physical or biological character trait disconnected from one’s moral agency or ability to choose one’s course of personal conduct and behavior.
“I respectfully request this court to uphold my First Amendment Rights and thereby protect me from diversified litigious attacks against my rights to believe, teach, practice, share, and live my sincere religious beliefs, both in the public square and elsewhere. Unlike the new right of sodomy-based marriage, those First Amendment Rights were foundational to the original establishment of this nation, indeed conditional to the original establishment of this nation, and have priority over other rights newly created by federal judicial fiat.”
As Judge Enslen explains, the Free Exercise Clause, an express constitutional provision, logically takes precedence over a pretended constitutional right formulated from whole cloth by “five lawyers,” as Chief Justice Roberts termed them, Obergefell, 576 U.S. at ––––, 135 S.Ct. at 2612, 2624 (Roberts, C.J., dissenting), who have embarked on an unauthorized frolic in the field of public policy.
The Virginia Act for Establishing Religious Freedom further explained:
**76 “[T]he proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right....”

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12 Hening, Statutes, at 85. If the natural tendency of Obergefell is to mandate that no citizen with religious scruples against same-sex marriage can hold the office of probate judge in Alabama, then that citizen has been deprived of “those privileges and advantages to which in common with his fellow-citizens he has a natural right.”
After the ruling in Obergefell was announced, the entire staff of a Tennessee County Clerk’s Office resigned to avoid *585 violating their Christian convictions. A county clerk in Mississippi likewise resigned rather than issue marriage licenses to same-sex couples. Nicole Hensley, Entire Tennessee County Clerk Staff Resigns over Supreme Court’s Gay Marriage Decision, N.Y. Daily News, July 4, 2015.15 Here in Alabama some probate judges stopped issuing all marriage licenses. In Kentucky a county clerk, who decided in the wake of Obergefell to cease issuing all marriage licenses, was ordered by a federal district judge to issue marriage licenses to same-sex couples in violation of her religious principles.
Miller v. Davis, 123 F.Supp.3d 924 (E.D.Ky.2015). A chaplain at a Kentucky Juvenile Detention Center, after 12 years of ministering to juveniles, was banned from the facility because he would not agree to abide by a regulation that prohibits mentioning that homosexuality is a sin. Todd Starnes, The Christian Purge has Begun: Chaplains Banned from Preaching that Homosexuality is a Sin, FoxNews.com, Aug. 11, 2015.16
As James Madison stated in 1785:

“A Memorial and Remonstrance,” in 1 Letters and Other Writings of James Madison 163 (1865) (“Letters and Writings”). Joining a decision to repudiate the Fugitive Slave Act, Justice Abram Smith of the Wisconsin Supreme Court expressed similar sentiments: “It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.” In re Booth, 3 Wis. 157, 201 n. a1 (1854) (Smith, J., concurring), rev’d sub nom. Ableman v. Booth,
62 U.S. (21 How.) 506, 16 L.Ed. 169 (1858).17
Foreseeing the dire consequences for religious freedom in the principle that same-sex marriage must be given equal stature with holy matrimony and foreseeing the inevitable pressure to compel religious institutions, businesses, and practitioners of professions to conform to that unreality, it would be imprudent to wait for the onset of these persecutions, to stand idle until Obergefell’s “usurped power had strengthened itself by exercise, and entangled the question in precedents.” Rather “the axe [must be] laid unto the root of the trees,” Matthew 3:10, and the consequence avoided by denying the principle. To allow a simple majority of the United States Supreme Court to “create” a constitutional right that destroys the religious liberty guaranteed by the First Amendment violates not only common *586 sense but also our duty to the Constitution.

“[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.”

V. The Supreme Law of the Land
**77 Less than two weeks after Obergefell was released, the Louisiana Supreme Court relied on it to determine that the Louisiana law defining marriage as the union of a man and a woman could no longer be enforced. Costanza v. Caldwell, 167 So.3d 619 (La.2015). The Louisiana court stated that United States Supreme Court opinions “ ‘must be obeyed in order to maintain the law in its majesty of final decision.’ ” Id. at 621 (quoting State v. Nichols, 216 La. 622, 633, 44 So.2d 318, 321 (1950)). One Justice concurred but only because “I am constrained to follow the rule of law set forth by a majority of the nine lawyers appointed to the United States Supreme Court.” 167 So.3d at 622 (Knoll, J., additionally concurring) (emphasis added). That Justice vigorously expressed her disagreement:

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“This is not a constitutionally-mandated decision, but a super-legislative imposition of the majority’s will over the solemn expression of the people evidenced in their state constitutional definitions of marriage.
“Moreover, the five unelected judges’ declaration that the right to marry whomever one chooses is a fundamental right is a mockery of those rights explicitly enumerated in our Bill of Rights. Simply stated, it is a legal fiction imposed upon the entirety of this nation because these five people think it should be....
“It is a sad day in America when five lawyers beholden to none and appointed for life can rob the people of their democratic process.... I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constrained adherence to their ‘law of the land ’ enacted not by the will of the American people but by five judicial activists.”
Id. (emphasis added).
I appreciate this Justice’s critique of Obergefell, which parallels those of its four dissenters. Although this critique is devastating, I disagree with the conclusion that the “rule of law” requires judges to follow as the “law of the land” a precedent that is “a super-legislative imposition,” “a mockery,” “a legal fiction,” and “an utter travesty.”18
A. Do Supreme Court Decisions Automatically Become the “Law of the Land”?
**78 Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the “rule of law” and the “law of the land?” Sir William Blackstone’s Commentaries on the Laws of England became the “manual of almost every student of law in the United States”19 during this nation’s formative years. Blackstone stated that “the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.” 1 Commentaries *71. Blackstone understood that judges may *587 make mistakes, but in Obergefell,

according to the forceful dissents, the majority did not merely make a mistake of law, but instead judged not by the law, but by their own will. As Alexander Hamilton stated: “[I]f [the courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78, at 526.
Article VI, ¶ 2, of the United States Constitution defines “the supreme law of the land.”
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.”
By the plain language of Article VI, state judges are bound to obedience to the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, not to the opinions of the United States Supreme Court.20 Justice Joseph Story stated: “In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws.” Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18,
10 L.Ed. 865 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Alexander Hamilton, surely an authority on the Constitution, responding to arguments that the Supremacy Clause would allow the new national government to trample on the rights of the states, put the matter very plainly: “If a number of political societies enter into a larger political society,” he wrote, “the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.” The Federalist No. 33, at 207 (Alexander

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Hamilton) (Jacob E. Cooke ed., 1961) (emphasis added). But if those powers were abused, the corresponding laws were not supreme.

descent in any State; would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State?”

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such.”

The Federalist No. 33, at 206. The laws of inheritance are inseparable from those laws that define the family and in particular the marital relationship. Writing in 1788, over two centuries before Obergefell, Hamilton understandably could not easily imagine the “forced constructions” of federal authority in that case that altered the very definition of marriage. But his example from the law of descent, intended to illustrate an absurdity, makes it clear that Obergefell is an act of usurpation that “will deserve to be treated as such.”

**79 Id. Hamilton emphasized: “It will not, I presume, have escaped observation, that [the Supremacy Clause] expressly confines this supremacy to laws made pursuant to the constitution....” Id. Thus, in the plainest terms and employing emphasis, Hamilton declared that acts of the federal government that invade the reserved rights of the states are “acts of usurpation” that deserve to be treated as such. Such acts “would not be the supreme law of the land, but an usurpation of power not granted by the Constitution.” The Federalist No. 33, at 208.
The Supremacy Clause, quite obviously, by this chain of reasoning, does not give the United States Supreme Court or any other agency of the federal government the authority to make its every declaration by that very fact the supreme law of the *588 land. If the Court’s edicts do not arise from powers delegated to the federal government in the Constitution, they are to be treated not as the supreme law of the land but as mere usurpation. Hamilton offered an example of an invasion of the reserved powers of the states that is very close to the pretense of authority set forth in the opinion of the Obergefell majority.
“Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Federal Legislature should attempt to vary the law of

Nevertheless, so as not to be misunderstood, I emphasize that judges are ordinarily obligated to regard the opinions of the high court as valid precedent that should be followed. Blackstone eloquently stated the general rule that judges are to follow precedent:
“For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, has now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine not according to his own private judgments, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.”

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1 Commentaries *69. But he also stated a vital exception to that rule.

B. The Military Analogy: The Duty to Disregard Illegal Orders

**80 “Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law....”
Id. *69–70 (some emphasis added). Thus, if precedents are “manifestly absurd or unjust,” “contrary to reason,” or “contrary to the divine law,” they are not to be followed.
Applying Blackstone’s analysis, which is compatible with that of Hamilton, one must conclude that the Obergefell opinion is manifestly absurd and unjust, as demonstrated convincingly by the four dissenting Justices in Obergefell and the writings of two Justices of the Louisiana Supreme Court in Costanza. Basing its opinion upon a supposed fundamental right that has no history or tradition in our country,21 the opinion of the Obergefell majority is *589 “contrary to reason” as well as “contrary to the divine
law.” See Murphy v. Ramsey, 114 U.S. at 45 (defining “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony” (emphasis added)); Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 638 (1904) (describing marriage as a “sacred relation”); Goodrich v. Goodrich, 44 Ala. 670, 675 (1870) (quoting a treatise for the proposition that “ ‘ “[t]he relation of marriage is founded on the will of God, and the nature of man” ’ ” (quoted in API, 200 So.3d at 507)).22 The Obergefell opinion, being manifestly absurd and unjust and contrary to reason and divine law, is not entitled to precedential value.

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to “uphold and support” the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance.
Although the United States military depends for its effectiveness on obedience to the chain of command, the principle that a subordinate has a duty to resist illegal orders is also well established. The duty to obey the orders of a superior is absolute “unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” United States Manual for Courts–Martial, Part II Rules for Courts–Martial, Chapter IX, Rule 916(d) (“Obedience to orders”). The oath I took as a cadet at the United States Military Academy at West Point stated, in part, “that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice.” 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.
**81 At his court-martial, Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians, defended himself by

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claiming that he was following the orders of his superior, Captain Ernest Medina. The military tribunal that considered Lt. Calley’s appeal rejected his superior-order defense on the ground that the order he claimed to be following was clearly unlawful. Even if Lt. Calley had acted in obedience to orders, *590 “he would nevertheless not automatically be entitled to acquittal. Not every order is exonerating.” United States v. Calley, 46 C.M.R. 1131, 1183 (1973). “Military effectiveness depends upon obedience to orders. On the other hand the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person.” United States v. Calley, 48 C.M.R. 19, 26 (1973) (emphasis added).
“ ‘[T]he only exceptions recognized to the rule of obedience are cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness....
“ ‘Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly....’ ”
Calley, 48 C.M.R. at 28 (quoting William Winthrop, Military Law and Precedents 296–97 (2d ed. 1920 Reprint) (emphasis added)).
The same principle, engraved on a plaque at Constitution Corner at West Point, states: “Our American Code of Military Obedience requires that, should orders and the law ever conflict, our officers must obey the law. Many other nations have adopted our principle of loyalty to the basic law.” Lt. Calley’s conviction confirmed that the basic law remained intact. The same plaque in Constitution Corner reiterates this point even more emphatically: “The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American Officers thereafter swear loyalty to our basic law, the Constitution.”
Over 150 years ago, Justice Abram Smith of the Wisconsin Supreme Court, addressing the Fugitive Slave Act, 9 Stat. 462, expressed the same sentiment. Acknowledging his oath of loyalty under Article VI to uphold the Constitution, Justice Smith stated that “the duty of the [states] to watch closely and resist firmly every encroachment of the [federal government] becomes every day more and more imperative, and the official oath of the functionaries of the states becomes more and more
significant.” In re Booth, 3 Wis. 1, 24 (Smith, J.).

Justice Smith recognized that state judges have a duty to resist unconstitutional federal usurpations of power:
**82 “But believing as I do, that every state officer who is required to take an oath to support the Constitution of the United States as well as of his own state, was designedly placed by the federal constitution itself as a sentinel to guard the outposts as well as the citadel of the great principles and rights which it was intended to declare, secure and perpetuate, I cannot shrink from the discharge of the duty now devolved upon me. I know well its consequences, and appreciate fully the criticism to which I may be subjected. But I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believing, I cannot hesitate in performing a clear, an indispensable duty.”
In re Booth, 3 Wis. at 22–23. President Andrew Jackson made the same point: “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.” “Veto Message, July 10, 1832,” 3 A Compilation of the Messages & Papers of the Presidents 1145 (James D. Richardson ed., 1897).
*591 If, as an individual who is sworn to uphold and support the United States Constitution, I were to place a court opinion that manifestly and palpably violates the United States Constitution above my loyalty to that Constitution, I would betray my oath and blatantly disregard the Constitution I am sworn to uphold. Acquiescence on my part to acts of “palpable illegality” would be an admission that we are governed by the rule

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of man and not by the rule of law. Simply put, the Justices of the Supreme Court, like every American soldier, are under the Constitution, not above it. James Madison warned that “the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution.” Madison’s Report on the Virginia Resolutions, in 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 549 (Jonathan Elliot ed., 1836) (hereinafter “Elliot’s Debates”). As Chief Justice John Marshall explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179–80,
2 L.Ed. 60 (1803): “[T]he framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it?” One scholar plainly states: “The courts are constitutional agents, and as such occupy an inferior position to the Constitution itself.” Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 Harv. J.L. & Pub. Pol’y 399, 408 (1985).
In the Dred Scott case, “the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied right of slaveholders.” Obergefell, 576 U.S. at ––––, 135 S.Ct. at 2616 (Roberts, C.J., dissenting) (citing Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857)). The Court’s holding that blacks could not be American citizens certainly was absurd and unjust, but no less so than the holding in Obergefell that “marriage” can now be defined as the union of two persons of the same gender.
C. Abraham Lincoln and the Limits of Judicial Power
**83 In his First Inaugural Address, President Abraham Lincoln stated that the “evil effect” of an erroneous Supreme Court decision is bearable because the effects are limited to that one case:

constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.”
Letters and Addresses of Abraham Lincoln 195–96 (H.W. Bell ed., 1903) (emphasis added). The idea that Supreme Court decisions instantly become the “law of the land,” however, he considered to be not only erroneous, but also dangerous to free government:
“At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions *592 the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Id. at 196 (emphasis added).

“I do not forget the position assumed by some that

Unless, as Lincoln taught, the “evil effect” of Obergefell is limited to the parties in that case, the people “have

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ceased to be their own rulers,” having surrendered their government into the hands of a majority on the United States Supreme Court. As Justice Scalia states: “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine
lawyers on the Supreme Court.” 576 U.S. at ––––, 135 S.Ct. at 2627. Justice Ruth Bader Ginsburg, one of that majority, was quoted in a subsequent interview as candidly admitting that the Supreme Court in Obergefell intended to make or “establish” the law. The report of the interview quotes her as stating: “The law that the Supreme Court establishes is the law that [judges, lawyers, and the public] must live by....” Samantha Lachman & Ashley Alman, Ruth Bader Ginsburg Reflects on a Polarizing Term One Month Out, HuffingtonPost.com (July 29, 2015).23 But, as stated above, the Supreme Court does not make law. That power belongs to legislatures or to the formal processes for enacting and amending constitutions.
Indeed, the Supreme Court in recent history has emphasized Lincoln’s observation that judicial power is the power to decide particular cases, not to make general law. As envisioned by the Constitution, “[t]he Judiciary would be, ‘from the nature of its functions, ... the [department] least dangerous to the political rights of the constitution’ ... because the binding effect of its acts was
limited to particular cases and controversies.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 223, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (emphasis added) (quoting The Federalist No. 78, at 522). Indeed, Hamilton considered the judiciary to be the “least dangerous” branch and the damage caused by judicial overreaching to be inherently limited precisely because the impact of its decisions was confined to the case before it. “Thus, ‘though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: ... so long as the judiciary remains truly distinct from both the
legislative and executive.’ ” Plaut, 514 U.S. at 223 (quoting The Federalist No. 78, at 523). The presumption of the Obergefell majority to legislate for the entire nation on a “vital question” by making a decision in a particular case is exactly the assumption of legislative power that Hamilton warned would endanger “the general liberty of the people” and Lincoln identified with the demise of self-government.

D. The Fallacy of Judicial Supremacy
**84 The general principle of blind adherence to United States Supreme Court opinions as “the law of the land” is a dangerous fallacy that is inconsistent with the United States Constitution.24 Labeling such opinions *593 as “the rule of law” confuses the law itself—the Constitution—with an opinion that purports to interpret that document.
Article VI, by its plain terms, binds “the judges in every state” to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen’s tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked,25 so also the “judges in every state” are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document. As one political scientist observed: “[N]o fiction, however noble, can forever cloak a philosopher king with moral respectability. Soon or late, it seems, his nakedness appears; then we must begin again the struggle for law—for government by something more suitable than the will of those who for the moment hold high office.” Wallace Mendelson, Sex and the Singular Constitution: What Remains of Roe v. Wade?, 26 PS: Political Science and Politics 206, 208 (1993).
The proposition that judgments of the United States Supreme Court are to be obeyed unquestioningly by a lower court regardless of their nonadherence to the Constitution, is known as the doctrine of judicial supremacy. A Princeton professor explains: “Judicial supremacy largely consists of the ability of the Supreme Court to erase the distinction between its own opinions interpreting the Constitution and the actual Constitution itself.” Keith E. Whittington, Political Foundations of Judicial Supremacy xi (2007). By this alchemy the Court becomes the Constitution, and the actual content of the written charter becomes irrelevant except as literary decoration for its opinions.26 “The constitutional text itself often plays only a subordinate role [in deciding cases].” Henry Paul Monaghan, Supremacy Clause Textualism, 110 Columbia L.Rev. 731, 793 (2010). This miracle of transforming Court opinions into constitutional substance “supposes a kind of transubstantiation whereby the Court’s opinion of the Constitution ... becomes the very body and blood of the Constitution.” Edward S. Corwin,

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Court Over Constitution 68 (1938). A political science professor states: “A formal constitutional oath to uphold the Constitution amounts, then, to an oath to follow the Court. This mirrors the subversion of the written Constitution: what began as a written fundamental law visible to all is translated into the ancient equivalent of legal french for the schooled few.” George Thomas, The Madisonian Constitution 37 (2008).
**85 Opinions of the Supreme Court that interpret the Constitution are, as Lincoln said, “entitled to very high respect and consideration,” but only insofar as they are faithful to that document. In a case like Obergefell, the “evil effects” Lincoln described should be confined to the unfortunate defendants in that case. We must protect the institution of marriage from judicial subversion and maintain loyalty *594 to the principles upon which our nation was founded. Justice Sandra Day O’Connor, the first woman on the United States Supreme Court, stated: “A nation that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders.” The Majesty of the Law: Reflections of a Supreme Court Justice 45 (2003).
Finally, we should reject the conversion of our republican form of government into an aristocracy of nine lawyers. Speaking at the North Carolina ratification convention in 1788, James Iredell, soon to be a Supreme Court Justice, explained that the Guarantee Clause27 was placed in the Constitution so that “no state should have a right to establish an aristocracy or monarchy.” 4 Elliot’s Debates, at 195. If the Guarantee Clause is offended by a state’s abandoning representative government, how much more is it offended by the judicial branch of the national government imposing an aristocratic form of government on every state in the union? The colonists, we should remember, charged King George III with “altering fundamentally the Forms of our Governments.” Declaration of Independence para. 2.
E. Did Obergefell Automatically Abrogate the March 2015 Orders in this Case?
**86 Lincoln taught that an order of the Supreme Court was limited to the parties in the case before the Court; beyond that it served merely as precedent. He agreed that

Dred Scott as a judicial judgment bound the parties to that case, but cautioned against granting it any broader scope. Likewise, following Lincoln’s admonition, the ruling in Obergefell bound only the parties before the Court in that case.28
Some contend, however, that Obergefell, by its mere existence, abrogates the March 2015 orders in this case. Those orders, of course, were not the subject of review in Obergefell. On October 20, 2015, a panel of the United States Court of Appeals for the Eleventh Circuit summarily affirmed the order of the United States District Court for the Southern District of Alabama “requiring the issuance of marriage licenses to same-sex couples.” Strawser v. State (No. 15–12508–CC, Oct. 20, 2015) (11th Cir.2015). “Since the filing of this appeal,” the Eleventh Circuit stated, “the Alabama Supreme Court’s order was abrogated by the Supreme Court’s decision in Obergefell v. Hodges....” Id. That conclusion is plainly wrong.
For example, the United States Court of Appeals for the Eighth Circuit recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction. Applying Obergefell as precedent, the Eighth Circuit rejected the Nebraska defendants’ suggestion that Obergefell mooted the case. The Eighth Circuit stated: “The [Obergefell ] Court invalidated laws in Michigan, Kentucky, Ohio, and *595 Tennessee—not Nebraska.” Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir.2015) (emphasis added). In two other cases the Eighth Circuit repeated its statement that Obergefell directly invalidated the laws of only the four states in the Sixth Circuit. See Jernigan v. Crane, 796 F.3d 976, 979 (8th Cir.2015) ( “not Arkansas”); Rosenbrahn v. Daugaard, 799 F.3d 918, 922 (8th Cir.2015) ( “not South Dakota”). The United States District Court for the District of Kansas was even more explicit: “ ‘While Obergefell is clearly controlling Supreme Court precedent,’ it ‘did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses....’ ” Marie v. Mosier, 122 F.Supp.3d 1085 (D.Kan.2015). Rejecting the Kansas defendants’ claim that Obergefell mooted the case, the district court stated that “Obergefell did not rule on the Kansas plaintiffs’ claims.” Id.
The opinion of the Obergefell majority initially agreed with this analysis, holding that “the State laws challenged by Petitioners in these cases are now held invalid.”
576 U.S. at ––––, 135 S.Ct. at 2605 (emphasis added). Toward the end of its opinion, however, the majority

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presumed to make its edict apply to the entire nation. “The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”
576 U.S. at ––––, 135 S.Ct. at 2607 (emphasis added). But that holding is beyond its authority and should be regarded as dicta. As Lincoln observed in his first Inaugural Address and as Hamilton instructed in Federalist No. 78, a judicial decision is not a legislative enactment; it binds only the parties to the case. “Courts do not write legislation for members of the public at large; they frame decrees and judgments binding on the parties before them.” Additive Controls & Measurement Sys. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed.Cir.1996). The Court had no jurisdiction to order nonparties to Obergefell to obey its judgment for they have not had an opportunity to appear and defend. “A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.” Martin v. Wilks, 490 U.S. 755, 762, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). Judge Learned Hand stated:
**87 “[N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, [29] and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court.”
Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832–33 (2d Cir.1930) (emphasis added).
Rule 65 of the Federal Rules of Civil Procedure, which governs the scope of the district court injunctions that were under review in Obergefell, states, in part:

“(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
“(A) the parties;
“(B) the parties’ officers, agents, servants, employees, and attorneys; and
*596 “(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).”
Rule 65(d)(2), Fed.R.Civ.P. (emphasis added). No Alabama probate judges were parties to Obergefell. Neither were they officers, agents, or servants of any of the defendants in those cases, or in active concert or participation with any of them. The Obergefell defendants were state officials in the four states in the jurisdiction of the United States Court of Appeals for the Sixth Circuit, namely Kentucky, Michigan, Ohio, and Tennessee. Needless to say, Alabama probate judges were not agents, servants, or employees of any of those state officials. Nor were they in “active concert or participation” with any of them. Thus, the judgment in Obergefell that reversed the Sixth Circuit’s judgment does not constitute an order to Alabama probate judges.
Accordingly, the Eleventh Circuit was incorrect to hold that Obergefell abrogated the March orders in this case. Furthermore, this Court is “ ‘not bound by the decisions of the Eleventh Circuit.’ ” API, 200 So.3d at 529 (quoting
Ex parte Hale, 6 So.3d 452, 458 n. 5 (Ala.2008)). “Legal principles and holdings from inferior federal courts have no controlling effect here....” API, 200 So.3d at 529 (quoting Glass v. Birmingham So. R.R., 905 So.2d 789, 794 (Ala.2004)). In a 1991 case, the United States Court of Appeals for the Ninth Circuit adopted a different position, holding that federal district court decisions did not bind state courts but that the decisions of the federal courts of appeal most likely did. “[T]here may be valid reasons not to bind the state courts to a decision of a single federal district judge—which is not even binding on the same judge in a subsequent action—that are inapplicable to decisions of the federal courts of appeals.”
Yniguez v. State of Ariz., 939 F.2d 727, 736–37 (9th Cir.1991). On review, the United States Supreme Court termed this statement “a remarkable passage” and contrasted it with the following:
**88 “But cf. ASARCO Inc. v. Kadish, 490 U.S.

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605, 617 (1989) (‘state courts ... possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own

interpretations of federal law’);

Lockhart v.

Fretwell, 506 U.S. 364, 375–376 (1993) (Thomas, J.,

concurring) (Supremacy Clause does not require state

courts to follow rulings by federal courts of appeals on

questions of federal law).”

Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n. 11, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). The Chief Judge of the Eleventh Circuit noted this commentary. Citing Arizonans, he stated: “The Supreme Court has rejected and disparaged as ‘remarkable’ a passage from a Ninth Circuit opinion saying that state courts are bound to follow rulings of the federal court of appeals in the circuit in which they are located.”
Hittson v. GDCP Warden, 759 F.3d 1210, 1278 (11th Cir.2014) (Carnes, J., concurring). Acknowledging that federal and state courts have independent and parallel obligations to interpret federal law, he stated: “[I]t is not the role of inferior federal courts, of which we are one, to sit in judgment of state courts on issues of federal law.... We have no more right to lecture state courts about federal law than they have to lecture us about it.” Id. See
also Powell v. Powell, 80 F.3d 464, 467 (11th Cir.1996) (noting “the dual dignity of state and federal court decisions interpreting federal law”). As the United
States Supreme Court explained in ASARCO v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989): “Indeed, inferior federal courts are *597 not required to exist under Article III, and the Supremacy Clause explicitly states that ‘the Judges in every State shall be bound’ by federal law. U.S. Const., art. VI, cl. 2.”
490 U.S. at 617.
For the above reasons, the Eleventh Circuit is incorrect that Obergefell abrogated the March 2015 orders in this case. Additionally, a ruling of the Eleventh Circuit has no binding effect on this Court.

VI. Conclusion
**89 The dissents of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito provide ample

justification to refuse to recognize Obergefell as a legitimate judicial judgment. Obergefell constitutes an unlawful purported amendment of the Constitution by a judicial body that possesses no such authority. As Chief Justice Roberts stated: “The right [Obergefell ] announces has no basis in the Constitution or this Court’s precedent.” 576 U.S. at ––––, 135 S.Ct. at 2612.
In 1785, James Madison, widely recognized as the chief architect of the Constitution and who would later become the fourth President of the United States, wrote to the Virginia Assembly:
“The preservation of a free Government requires, not merely that the metes and bounds which separate each department of power may be invariably maintained, but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves”
“A Memorial and Remonstrance,” in 1 Letters and Other Writings of James Madison 163 (1865). In Obergefell, a bare majority of five Justices in the face of four vigorous and vehement dissents violated both requirements for “[t]he preservation of a free government.” Rather than limiting themselves to the judicial function of applying existing law to the facts and parties before them, the Obergefell majority violated “the metes and bounds which separate each department of power” by purporting to rewrite the marriage laws of the several states to conform to their own view of marriage. Condemning this usurpation of the legislative function, Chief Justice Roberts in an adamant dissent explained that “this
Court is not a legislature.” 576 U.S. at ––––, 135 S.Ct. at 2611. “Five lawyers,” he lamented, “have closed the

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debate and enacted their own vision of marriage as a
matter of constitutional law.” 576 U.S. at ––––, 135 S.Ct. at 2612.

destroying it. The ultimate goal of that movement is to drive the nation into a wasteland of sexual anarchy that consumes all moral values.

Even more injurious to the rule of law, the Obergefell majority “overleap [ed] the great Barrier which defends the rights of the people” as expressed in the Free Exercise Clause of the First Amendment. The majority thus has jeopardized the freedom to worship God according to the dictates of conscience and the right to acknowledge God as the author and guarantor of true liberty. Justice Thomas in his dissent explained: “Aside from undermining the political processes that protect our liberty, the majority’s
decision threatens the religious liberty our Nation has long sought to protect.” 576 U.S. at ––––, 135 S.Ct. at 2638. Justice Joseph Story further explained: “The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.” 2 Joseph Story, Commentaries on the Constitution § 1876 (2d ed. 1851).
*598 A vivid example of the practical effect of the unwarranted trampling of rights of conscience by the Obergefell majority is the jailing of a Kentucky county clerk for adhering to her religious conviction that God has ordained marriage as an institution that unites only a man and a woman. She stated: “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” Statement of Kentucky Clerk Kim Davis, Sept. 1, 2015.30

Obergefell is completely without constitutional authority, a usurpation of state sovereignty, and an effort to impose
the will of “five lawyers,” as Chief Justice Roberts stated, 576 U.S. at ––––, ––––, 135 S.Ct. at 2612, 2624, on the people of this country. Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them.
Our forefathers would not have stood idly by to watch our liberties destroyed and our Constitution violated. James Madison stated in 1785 that “it is proper to take alarm at the first experiment on our liberties.... We revere this lesson too much, soon to forget it.” “A Memorial and Remonstrance,” in 1 Letters and Writings, at 163. I believe that in the Obergefell opinion and the response of many to it, we may have forgotten that lesson sooner than we ought.
In my legal opinion, Obergefell, like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion. Its consequences for our society will be devastating, and its elevation of immorality to a special “right” enforced through civil penalties will be completely destructive of our religious liberty.
Why immoral?

**90 By transgressing “the metes and bounds which separate each department of power” and “overleap[ing] the great Barrier” which protects the rights of conscience, the Obergefell majority “exceed[s] the commission from which they derive their authority” and are “tyrants.” By submitting to that illegitimate authority, the people, as Madison stated, become slaves. Free government, rather than being preserved, is destroyed.

**91 Because it elevates into a fundamental right that which was historically regarded by our law as “the infamous crime against nature,” which fundamental right Justice Scalia ironically observes was “overlooked by every person alive at the time of ratification, and
almost everyone else in the time since.” 576 U.S. at ––––, 135 S.Ct. at 2629.
Why unconstitutional?

Obergefell itself is the corrupt descendant of the Court’s lawless sexual-freedom opinions that hearken back to
Griswold—a “derelict in the stream of the law,” State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 457, 82 S.Ct. 1380, 8 L.Ed.2d 620 (1962). The great irony of the Supreme Court’s embrace of the homosexual campaign to redefine marriage is that the homosexual movement has embraced marriage only for the purpose of

Because “the Constitution ... had nothing to do with it,” 576 U.S. at ––––, 135 S.Ct. at 2626 (Roberts, C.J., dissenting), *599 and because

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it is a “distortion of our Constitution” that “ignores the
text” of the Constitution. 576 U.S. at ––––, 135 S.Ct. at 2631 (Thomas, J., dissenting).
Why tyrannical?
Because the Obergefell opinion “shows that decades of attempts to restrain this Court’s abuse of its authority
have failed,” 576 U.S. at ––––, 135 S.Ct. at 2643 (Alito, J., dissenting), and because Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy” and “exploited by those who are determined to stamp out every vestige of dissent.”
576 U.S. at ––––, 135 S.Ct. at 2642 (Alito, J., dissenting). In addition, Obergefell contradicts “the Laws of Nature and of Nature’s God” that were invoked in the organic law upon which our country is founded. Declaration of Independence para. 1. To invariably equate a Supreme Court decision that clearly contradicts the Constitution with “the rule of law” is to elevate the Supreme Court above the Constitution and to subject the American people to an autocracy foreign to our form of government. Supreme Court Justices are also subject to the Constitution. When “that eminent tribunal” unquestionably violates the limitations set forth in that document, lesser officials—equally bound by oath to the Constitution—have a duty to recognize that fact or become guilty of the same transgression.

1025, 1028 n. 1 (Ala.1999) (quoting United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988)).
In face of the lawlessness of the Obergefell majority, I agree with the dissenting opinion of Chief Justice Roberts: “If you are among the many Americans ... who favor expanding same-sex marriage, by all means celebrate today’s decision.... But do not celebrate the Constitution. It had nothing to do with it.” 576 U.S. at ––––, 135 S.Ct. at 2626 (emphasis added).
As stated at the beginning of this special concurrence, the certificate of judgment in this case does not disturb the March 2015 orders of this Court that uphold the constitutionality of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act. For that reason, as explained above, I concur.
STUART, Justice (concurring specially).
**92 Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

“ ‘[T]he central principle of a free society [is] that courts have finite bounds of authority, some of constitutional origin, which exist to protect citizens from ... the excessive use of judicial power. The courts, no less than the political branches of the government, must respect the limits of their authority.’ ”
State v. Property at 2018 Rainbow Drive, 740 So.2d

BOLIN and MAIN, JJ., concur.
BOLIN, Justice (concurring specially).
In light of the United States Supreme Court’s decision of Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584,
192 L.Ed.2d 609 (2015), in which a 5–4 majority declared, without any constitutional basis, that same-sex applicants have a fundamental constitutional right to marriage, I *600 concur in dismissing the “Motion for Clarification and Reaffirmation of the Court’s Orders Upholding and Enforcing Alabama’s Marriage Laws.” I do not agree with the majority opinion in Obergefell; however, I do concede that its holding is binding authority

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on this Court. See Howlett v. Rose, 496 U.S. 356, 371, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (“The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.”). I am nevertheless bound by my conscience to write further to express my views concerning the Obergefell majority’s lack of a legal basis for its opinion, as well as to recognize what I deem to be the possible effect of Obergefell upon Alabama’s marriage-license laws left in its wake.
Moreover, as a preliminary matter, I would like to emphasize the seemingly obvious—that this Court’s order, dismissing all pending motions and petitions in this case, is not an opinion of this Court. Rather, the order is simply a plain vanilla order of dismissal, with no accompanying explanation. A “dismissal order” or “order of dismissal” is defined as an order “ending a lawsuit without a decision on the merits.” Black’s Law Dictionary 1271 (10th ed. 2014). Whereas, an order of “denial” is defined as “[a] refusal or rejection; esp., a court’s refusal to grant a request presented in a motion or petition.” Black’s Law Dictionary 527 (10th ed. 2014). Although arguably the difference between “dismissed” and “denied” is sometimes as semantic (i.e., in this proceeding) as it is substantive, I would posit that the more appropriate judicial order in this proceeding would be “denied.” However, because I agree this case must end, I concur in this Court’s “dismissal.” I note also that there are six special writings attendant to this order of “dismissal.” A special writing and, more specifically, a “special concurrence,” is defined as “[a] vote cast by a judge in favor of the result reached, but on grounds different from those expressed in the opinion [if such be present] explaining the court’s judgment or in order to state views not expressed by the court.” Black’s Law Dictionary 352 (10th ed. 2014) (brackets added). In other words, a special concurrence is nothing more than a writing containing additional thoughts and/or commentary of the author, unless, of course, another Justice or Justices join in that special concurrence. I reiterate that of all the special writings generated by this Court’s order of dismissal, none of them, including this one, speaks the words of the Court. In this regard, I join Justice Stuart’s special writing commenting upon the same.

I. Fourteenth Amendment
**93 As Justice Scalia said in Obergefell:
“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so....
“... Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect....
“... States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ ...”
576 U.S. at ––––, 135 S.Ct. at 2628–29 (Scalia, J., dissenting) (footnote omitted; some emphasis added). Apparently states are not always so free, because, as Justice Scalia further expressed:
*601 “They [the majority] have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
576 U.S. at ––––, 135 S.Ct. at 2629 (Scalia, J., dissenting).
The United States Supreme Court has stated that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ”

Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citations omitted). It is without dispute that the concept of same-sex marriage is not deeply rooted in either this Nation’s or this State’s

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history and tradition—or frankly anywhere. To the contrary, from its earliest days, circa 1800s, Alabama has, with little modification, provided a statutory scheme for the formal licensing and recognition of marriages as being between a man and a woman. In the decision previously issued by this Court that is the subject of the motions disposed of today, the Court expounded on the genesis and historical framework of marriage:
“Laws that include the concept of marriage as the union of one man and one woman, however, predate the inception of Alabama as a state in 1819. In 1805—when Alabama was still a part of the Mississippi Territory—the legislature of the Mississippi Territory passed an act imbuing orphans’ courts with the power to grant and issue marriage licenses. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 4 (1823). That act remained in force after the creation of Alabama as a state in 1819 and contained language referring to persons joined together as ‘man and wife.’ See H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 6 (1823). Furthermore, in 1805, the plain, ordinary, and commonly understood meaning of the word ‘marriage’ was ‘the act of joining: man and woman.’ Webster, A Compendious Dictionary of the English Language, 185 (1806). Following Alabama’s becoming a state in 1819, Alabama law continued to include the concept of marriage as the union of one man and one woman. See Hunter v. Whitworth, 9 Ala. 965, 968 (1846) (‘Marriage is considered by all civilized nations as the source of legitimacy; the qualities of husband and wife must be possessed by the parents in order to make the offspring legitimate, where the municipal law does not otherwise provide.’ (emphasis added)). In 1850, the Alabama Legislature conferred the power to issue marriage licenses to the newly created probate courts. 1850 Ala. Laws 26. This power was officially codified in 1852. See Ala.Code 1852, § 1949.”
Ex parte State ex rel. Alabama Policy Inst., 200 So.3d 495, 530–31 n. 18 (Ala.2015) (“API ”). Further, this Court made reference to
**94 “the provisions of Chapter 1 of Title 30 (and their predecessors dating back 200 years) by which the legislature has provided for the

affirmative licensing and recognition of ‘marriage,’ including
the provision in § 30–1–9 (and its predecessors) for the licensing of ‘marriages’ and the provisions in § 30–1–7 (and its predecessors) for the solemnization of ‘marriages.’ And it is clear that the term ‘marriage’ as used in all those laws always has been, and still is (unless the courts can conjure the ability to retroactively change the meaning of a word after it has been used by the legislature), *602 a union between one man and one woman.”
API, 200 So.3d at 531 (emphasis added).
In Alabama, in 1998 and 2006, the legislature and the people of this State, respectively, recommitted expressly to the vital nature of the meaning of marriage in our present statutory scheme:
“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 [by 81 percent of the vote] 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.”
API, 200 So.3d at 500 (emphasis added).
Clearly, the State of Alabama has exercised its sovereign authority to define marriage as being inherently that

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relationship between a man and a woman by the authority that has exclusively been delegated to the states, including this State, to regulate, pursuant to the express language in the Ninth Amendment to the United States Constitution, part of the Bill of Rights (addressing the rights, retained by the people, that are not specifically enumerated in the Constitution) and the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). Moreover, the people of Alabama have given voice to their sovereign state authority through ratification of the Sanctity of Marriage Amendment to the Alabama Constitution by an overwhelming 81 percent vote. Justice Kennedy, writing
for the majority in United States v. Windsor, 570 U.S. ––––, ––––, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013), acknowledged the above-mentioned authority when he referred to the well settled authority of each state to regulate its own laws regarding marriage and the definition of “marriage”:
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and
citizens. See Williams v. North Carolina, 317 U.S. 287, 298 (1942) (‘Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders’). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’ Ibid. ‘[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and
divorce.’ Haddock v. Haddock, 201 U.S. 562, 575
(1906); see also In re Burrus, 136 U.S. 586, 593–594 [10 S.Ct. 850, 34 L.Ed. 500] (1890) (‘The whole subject of the domestic relations of husband *603 and wife, parent and child, belongs to the laws of the States and not to the laws of the United States’).”
**95 (Emphasis added.) Without comment concerning, or apology regarding, those words, only two years later the same Justice Kennedy, writing for the majority in Obergefell, reversed course and decreed that all states are now required by the Constitution to issue marriage licenses to same-sex couples. It bears repeating that this change of interpretation and direction came only two years after Windsor and in the words of the same Justice

who authored that opinion. Although Justice Kennedy cited Windsor on six different occasions in Obergefell, he nonetheless made no attempt to distinguish his statement in Windsor that “[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States.”
Windsor, 570 U.S. at ––––, 133 S.Ct. at 2689–90. Rather, the Obergefell majority pulled from thin (legal) air a redefinition of marriage that is based not on any fundamental right deeply rooted in this Nation’s history and tradition, but rather on its self-declared beliefs that same-sex couples should be allowed to marry because “[t]he nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality”; “[m]arriage responds to the universal fear that a lonely person might call out only to find no one there”; “[t]heir hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions”; “[t]hey ask for equal
dignity in the eyes of the law”; and “[t]he Constitution grants them that right.” 570 U.S. at ––––, 135 S.Ct. at 2599, 2600, and 2608. Yielding to current social mores and temporal societal policy to recognize a fundamental constitutional right in a way not intended for the judicial branch of government, the majority in Obergefell, in the last phrase quoted above, is better understood to be saying: “We simply think that the Constitution should, and hereby does, grant them that right.”
The above-stated beliefs and accompanying conclusion, properly excoriated by the four Obergefell dissenters, are legislative rather than judicial in tone and nature and, again, ignore Supreme Court precedent to reach a desired societal result, which, as noted by Justice Scalia, “diminish[es] [the] Court’s reputation for clear thinking
and sober analysis.” 576 U.S. at ––––, 135 S.Ct. at 2630 (Scalia, J., dissenting). Rather,
**96 “[f]or today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is

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fundamental.”

576 U.S. at ––––, 135 S.Ct. at 2640–41 (Alito, J., dissenting) (emphasis added).

“Understand well what this dissent

is about: It is not about whether, in

my judgment, the institution of

marriage should be changed to

include same-sex couples. It is

instead about whether, in our

democratic republic, that decision

should rest with the people acting

through

their

elected

representatives, or with five

lawyers who happen to hold

commissions authorizing them to

resolve legal disputes according to

law. The Constitution leaves no

doubt about the answer.”

II. Alabama Licensing Scheme—Aftermath
The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State’s entire statutory licensing scheme governing “marriage” to the point of rendering it incapable of being enforced prospectively. See Chapter 1, titled “Marriage,” of Title 30, Ala.Code 1975. My concern arises because when some aspect of a law has been held to be unconstitutional, or unenforceable, due to some unforeseen practical difficulty or impossibility, or, as in this case, a judicially quickened version of the deliberative democratic process, it must be determined whether what is left can be enforced without the ineffective portion. In API, this Court acknowledged that

576 U.S. at ––––, 135 S.Ct. at 2612 (Roberts, C.J., dissenting)(emphasis added).
Apparently the Constitution does leave doubt. Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama *604 Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five—and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion. In my humble judgment, the 5–4 majority does not make the Obergefell decision well reasoned or even based upon sound principles of established constitutional law. Rather, it only makes it binding authority for today—subject to being properly, and lawfully, reexamined and reconsidered in the future. In the meantime, it seems to me to be an opinion that defines the phrase ipse dixit—translated as meaning “he himself said it” or “[s]omething asserted but not proved.” Black’s Law Dictionary 956 (10th ed. 2014). My translation—it is because, without foundation, they say it is.

“the contemplated change in the definition (or ‘application’ if one insists, although this clearly misapprehends the true nature of what is occurring) of the term ‘marriage’ so as to make it mean (or apply to) something antithetical to that which was intended by the legislature and to the organic purpose of Title 30, Chapter 1, would appear to require nothing short of striking down that entire statutory scheme.”
**97 200 So.3d at 531.
At this juncture, I express only my concern rather than my opinion because the issue of the future enforceability of Alabama’s marriage-licensing statutes is not squarely before this Court. However, as it pertains to a state statute, the United States Supreme Court has, at least currently, observed that “[s]everability [of a portion of a

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state statute] is of course a matter of state law.” Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996) (emphasis added). This Court noted in API that to
“allow the judiciary to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken, [is] contrary to well established state and federal principles of judicial review.”

Alabama’s marriage-license provisions, Chapter 1 of Title 30, Ala.Code 1975, titled “Marriage,” being the very heart and soul of our statutory licensing procedure, are dependent upon this State’s historical definition of “marriage” as a union of a man and a woman. Under the circumstances with which we are left and upon proper challenge, neither the probate judges, nor this Court, nor the other courts of this State, may have the practical ability to enforce our State licensing laws concerning the institution of marriage in the manner contemplated by our legislature and our people.
III. Conclusion

200 So.3d at 531 n. 19.
The issue of severability involves a question of statutory construction, which primarily involves ascertaining and giving effect to the intent of the legislature.
“This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa, 251 Ala. 209, 217, 36 So.2d 487, 493 (1948):
“ ‘A criterion to ascertain whether or not a statute is severable so that by rejecting the bad the valid may remain intact is: The act “ought not to be held wholly void unless the invalid portion is so important to the general plan and operation of the law in its *605 entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.” A. Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So.2d 23, 25 [ (1945) ]; Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 [ (1934) ]; 6 R.C.L. 125, § 123.’ ”

**98 The Obergefell majority declared that the constitutional authority and process for defining marriage is no longer a matter for the states; the Obergefell majority usurped both this authority and process, knowing what was best for us—an elitist view that is extrajudicial and condescending to the states under the 9th and 10th Amendments and to the citizenry and this country as a whole and, by the way, to the rule of law. With regard to this elitism and condescension, Justice Scalia succinctly noted that “[t]he opinion is couched in a style that is as
pretentious as its content is egotistic.” 576 U.S. at ––––, 135 S.Ct. at 2630 (Scalia, J., dissenting), and that,
“to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresented panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation....
“But what really astounds is the hubris reflected in today’s judicial Putsch.”

King v. Campbell, 988 So.2d 969, 982 (Ala.2007) (emphasis added in King). The fallout from Obergefell may present a classic example of an inability to sever the remains of our statutory licensing scheme following the imposition of the newly crafted definition of “marriage” announced by the Obergefell majority. Arguably, this result appears inescapable, because the new definitional fiat is completely contrary to what this State’s legislature has historically intended and enacted. Stated differently,

576 U.S. at ––––, 135 S.Ct. at 2629 (Scalia, J., dissenting).
As tempting as it would be to reenact the type defiance the State of Georgia and President Andrew Jackson espoused when Georgia refused to comply with a Supreme Court order and President Jackson, decrying the Supreme Court and defending Georgia, purportedly stated: “[Chief Justice] John Marshall has made his

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decision, now let him enforce it”31—I cannot and *606 will not go that far in defiance, because to do so would only placate the heart at the expense of the head; and, should anyone do so, our constitutional republic would begin to cease being a nation of laws and not of men; and, finally, to do so in this case could potentially render the licensing officials, i.e., the probate judges of the State, subject to personal civil liability for following their religious beliefs. And it is arguably not hyperbole to further contemplate that it could place those same licensing officials in the middle of an end-game stand-off with federal marshals and/or federalized national guardsmen on one side, with a contempt order from a federal court in hand, and state law-enforcement officers on the other, with a competing and conflicting state court order in hand. We have already had one war with kinsmen fighting kinsmen. We do not need another. Rather, we need to see that review of this wrong decision is done the right way—by constitutional means; otherwise, we would be in the same position as Chief Justice Roberts when he stated in the Obergefell decision: “Just who do we think
we are?” 576 U.S. at ––––, 135 S.Ct. at 2612 (Roberts, C.J., dissenting). In this regard, I join that portion of Part II of Justice Shaw’s well reasoned special writing concerning defiance.
As respectfully as I can, albeit reluctantly, I concur in dismissing the petitioners’ motions, and I further concur specially to note that the process of licensing of marriages in Alabama as we have known it may have been irreparably broken.
PARKER, Justice (concurring specially).
**99 I concur in the issuance of the certificate of judgment and in the dismissal of the pending motions and petitions. Dismissal, as distinct from denial, is not a decision on the merits. Thus, this Court is not denying on the merits matters of vital importance concerning the
effect—or lack thereof—of Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), on such issues as the issue of religious-liberty rights of individuals.
I concur specially to state that Obergefell conclusively demonstrates that the rule of law is dead. “Five lawyers”32—appointed to judgeships for life33 and practically unaccountable34 to the more than 320 million Americans they now arbitrarily govern—enlightened by “new insights” into the true meaning of the word

“liberty,” determined that “liberty” means that Americans have a new fundamental right only now discovered over 225 years since the Constitution was adopted. “Five lawyers,” who have treated the Constitution as “a mere thing of wax ... which they may twist, and shape into any form they please,”35 determined to impose their enlightenment on this nation in spite of the vast majority of the states having democratically *607 refused again and again to redefine the divinely initiated institution of marriage. In marching this country “forward” to their moral ideal, the “five lawyers” composing the majority in Obergefell have trampled into the dust the last vestiges of the legitimacy of the United States Supreme Court.
Obergefell is not based on legal reasoning, history, tradition, the Court’s own rules, or the rule of law, but upon the empathetic feelings of the “five lawyers” in the majority. What the late John Hart Ely said of another decision can be said of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973). The majority in Obergefell does not set forth authorities that lead to its conclusion; it sets forth only sentiments that support its whim in this case to create a fundamental constitutional right. In order to reach this conclusion, the majority in Obergefell, having ascended to a new understanding of human liberty, threw off the restraints of the rule of law and history. Having by judicial will set themselves free from those “shackles,” the majority then ushered in a new era of “liberty”: court-pronounced dignity. Justice Hugo Black, an Alabamian, provided an apt description of what the United States Supreme Court has done in Obergefell in
his dissent in In re Winship, 397 U.S. 358, 384, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970):

“When this Court assumes for itself

the power to declare any law—state

or

federal—unconstitutional

because it offends the majority’s

own views of what is fundamental

and decent in our society, our

Nation ceases to be governed

according to the ‘law of the land’

and instead becomes one governed

ultimately by the ‘law of the

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judges.’ ”
**100 In Cotting v. Godard, 183 U.S. 79, 84, 22 S.Ct. 30, 46 L.Ed. 92 (1901), the United States Supreme Court stated:
“It has been wisely and aptly said that this is a government of laws, and not of men;36 that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them.”

law means and to declare what it demands.
“The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”

See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163,
2 L.Ed. 60 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men.”). By rejecting the rule of law, history, and the viewpoint of most states, the majority’s approach in Obergefell explicitly rejects the idea that America is a government of laws and not of men. Instead, the majority illegitimately imposed its will upon the American people. We now appear to be a government not of laws, but of “five lawyers.”
In Planned Parenthood v. Casey, 505 U.S. 833, 865–66, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a plurality of the United States Supreme Court stated:
“The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding *608 generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s

(Emphasis added.) See also Michael H. v. Gerald D., 491 U.S. 110, 127 n. 6, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (“[A] rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.”). Obergefell is “no judicial act at all” because it is
“without principled justification.” Casey, 505 U.S. at 865. In fact, it is without any legal justification at all. Accordingly, the United States Supreme Court’s decision
in Obergefell is without legitimacy. See Republican Party of Minnesota v. White, 536 U.S. 765, 793, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (Kennedy, J., concurring) (“Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”).
**101 I also caution against the United States Supreme Court’s inherent assertion in Obergefell that it is above the law, rather than being constrained to its constitutional function of interpreter of the law. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury, 5 U.S. (1 Cranch) at 177—not to make it up as we go along. The majority in Obergefell was even so brash as to set aside the Supreme Court’s

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own established rules in ignoring the requirement that, in order for a fundamental right to be recognized, it must be rooted in our nation’s history. History has shown a proclivity to ignore the rules when they get in the way of a desired goal. Justice Joseph Story warned of such a practice:

Supreme Court. There appears to be no restraint on the judiciary, because “five lawyers” believe that they may simply decide, with no legal support whatsoever, that a particular fundamental right be created because they think it fair. This is not the rule of law, this is despotism37 and tyranny.38

“A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.
“This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced *609 in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.”
Joseph Story, Commentaries on the Constitution of the United States 127 (1833). Justice Sutherland stated the following in his dissent in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404, 57 S.Ct. 578, 81 L.Ed. 703 (1937):
“The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase ‘supreme law of the land’ stands for and to convert what was intended as inescapable and enduring mandates into mere moral reflections.”
**102 One should not be so naive to think that Justice Sutherland was warning of an event that has not already come to pass. In fact, Obergefell demonstratively evinces that the “mere moral reflections” of the judiciary’s constitutional role no longer give any pause for reflection at all to a majority of the Justices on the United States

Despotism and tyranny were evils identified in the Declaration of Independence as necessitating the break with King George and Great Britain. In his dissent in Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 669,
22 L.Ed. 455 (1874), Justice Clifford defined judicial despotism as follows:
“Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.”
(Footnotes omitted; citing Walker v. City of Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24 (Ohio 1871).) Further, Montesquieu, in his enduring work “The Spirit of the Laws,” stated:
“In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature

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of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life is concerned.”
*610 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (Thomas Nugent trans. 1752) (Kitchener 2001) (emphasis added).39 Obergefell is the latest example of judicial despotism. It is a decision not based on law, but on the bare majority’s philosophy of life. For the states to honor such a decision as legitimate is to bow our knee to the self-established judicial despots of America. “[T]yranny is the exercise of power beyond right, which no body can have a right to.” John Locke, Second Treatise of Government 101 (C.B. Macpherson ed., 1980) (1690). As Thomas Jefferson wrote, “experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” Thomas Jefferson, A Bill for the More General Diffusion of Knowledge, June 18, 1778, 2 The Works of Thomas Jefferson 414 (Paul Leicester Ford ed., G.P. Putnam’s Sons, 1904).
Edward S. Corwin, who popularized the term “judicial review,” only settled on that wording for that phrase in 1909.40 Corwin initially used the term “the doctrine of judicial paramountcy.”41 Corwin’s original term captures the reality of judicial supremacy that has grown out of judicial review. But the version of judicial supremacy reflected in the majority’s decision in Obergefell is far beyond earlier manifestations of judicial supremacy. As employed by the majority in Obergefell, it is the implicit claim to the supreme authority of the federal judiciary to decide any important political or social question confronting our country, whether the Constitution authentically addresses it or not (although the judges will contend that it does). Chief Justice Roberts refers to this as “the majority’s extravagant conception of judicial
supremacy.” Obergefell, 576 U.S. at ––––, 135 S.Ct. at 2624 (Roberts, C.J., dissenting). He describes the majority view of judicial supremacy as follows:
**103 “The role of the Court envisioned by the majority today ... is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s

telling, it is the courts, not the people, who are responsible for making ‘new dimensions of freedom ... apparent to new generations,’ for providing ‘formal discourse’ on social issues, and for ensuring ‘neutral discussions, without scornful or disparaging commentary.’ Ante, at 2596–2597.” Id. Chief Justice Roberts then puts this self-aggrandizing claim of power in historical context: “Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They *611 would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”
576 U.S. at ––––, 135 S.Ct. at 2624. To use the term applied by Justice Scalia, this is an anti-constitutional
“judicial Putsch.” 576 U.S. at ––––, 135 S.Ct. at 2629 (Scalia, J., dissenting). As justices and judges on state courts around the nation, we have sworn an oath to uphold the United States Constitution. We have not sworn to blindly follow the unsubstantiated opinion of “five lawyers.” As the Supreme Court of Utah boldly stated:
“The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three fourths of the states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erst while free and independent states are now in effect and purpose merely closely supervised units in the federal system.
“....
**104 “... We ... long for the return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions.”
Dyett v. Turner, 20 Utah 2d 403, 405–06, 439 P.2d 266, 267–68 (1968). An illegitimate decision is due no

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allegiance; our allegiance as judges is to the United States Constitution.
The rule of law is of utmost importance to the sustainability of this nation and the foundation of American exceptionalism. Taking a line from the late Ronald Reagan, we as justices and judges have a crucial role to “preserve to our children this [constitutional republic based upon the rule of law], the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.”42

knows no fixed principles.” 344 U.S. at 535 (emphasis added). Justice Jackson’s
words were prescient. Among other things, Justice Jackson’s concerns bring to mind this colloquy:
“ ‘I don’t know what you mean by “glory,” ’ Alice said.
“Humpty Dumpty smiled contemptuously. ‘Of course you don’t—till I tell you. I meant “there’s a nice knock-down argument for you!” ’

MURDOCK, Justice (concurring specially).
I share many of the concerns expressed by my colleagues, not the least of which is the concern for religious liberty and the concern expressed by Justice Bolin in Part II of his writing. I write not to repeat those concerns, but to offer some related thoughts.
* * *
A group of judges can declare all it wants that two people of the same sex can “marry,” but in the words of The Federalist No. 78,43 they cannot change “the nature and
reason of the thing” called marriage. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), Justice Jackson warned that “it is prudent to assume that the scope and reach of the Fourteenth Amendment will continue to be unknown and unknowable, that what *612 seems established by one decision is apt to be unsettled by another, and that its interpretation will be more or less swayed by contemporary intellectual
fashions and political currents.” 344 U.S. at 534 (Jackson, J., concurring in the result) (emphasis added). He further observed that the Supreme Court “may look upon this unstable prospect complacently, but state judges cannot.” Id.44 Justice Jackson summarized the problem this way:
“Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law

“ ‘But “glory” doesn’t mean “a nice knock-down argument,” ’ Alice objected.
**105 “ ‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
“ ‘The question is,’ said Alice, ‘whether you can make words mean different things.’
“ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’ ”
Lewis Carroll, Through the Looking–Glass, and What Alice Found There (Macmillan and Co., London 1872).
At least Carroll’s protagonist was undertaking only to declare contemporaneously the meanings of his own words, not proposing to change the meanings of words used by others at some time in the past. At best, the federal courts are applying a new meaning to words after they have been spoken and written by others, including the Supreme Court itself in earlier opinions, state legislatures, and the people themselves in organic state law. Even viewed in this manner, what the federal courts are doing has the gravest of consequences. If we cannot depend upon the meaning of words as understood at the time the words were chosen by their speaker or writer, the ability to communicate any idea from one time to another is lost. The ability to communicate any truth from one time to another is lost. And therewith the rule of law.
In reality, however, the federal courts, including the Supreme Court, are doing something even more radical than “merely” changing the meaning of the word “marriage” after its use by others. They *613 purport to engage in alchemy. To declare, as if they could do so, a change in the essential nature of the thing itself. That they purport to do so is appropriately met with the

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consternation expressed by Chief Justice Roberts when he
exclaimed: “Just who do we think we are?” Obergefell v. Hodges, 576 U.S. ––––, ––––, 135 S.Ct. 2584, 2612, 192 L.Ed.2d 609 (2015) (Roberts, C.J., dissenting).
Governments did not and do not create the institution of marriage. A civil government can choose to recognize that institution; it can choose to affirm it; and it can even take steps to encourage it. Governments throughout history have done so. But governments cannot change its essential nature. Marriage is what it is. No less so than any naturally occurring element on the periodic table.45
Yet, here we are. The courts undertake to change—or at least declare a change in—the essential nature of the thing itself. It is not just that the existence of such an ability would make it impossible to communicate and maintain a rule of law (which it does) or even to communicate truths from one person or time to another (which it also does). To assume the ability to declare such a change presumes there is no objectively ascertainable, universally applicable and immutable—“unalienable” in the words of the Declaration of Independence—truth about the thing.
The postmodern philosophy of truth this represents is that each individual can decide for himself or herself what is true. In contrast, the Declaration of Independence and the United States Constitution reflect, and the drafters of the one and framers and ratifiers of the other believed in, a philosophy of objectively ascertainable truth. Truth that is external to each of us. Truth that informs a common value system against which to consider one another’s ideas and conduct. Only out of such a universal truth can there arise “certain rights” that can themselves be universal—and unalienable.
So, in the end, perhaps the real question is this: Can the United States Supreme Court decide upon some philosophy of truth different from that assumed by the framers of the Constitution and by the Constitution itself—the same Constitution that gives that Court its very existence and its authority to make decisions? And impose this different philosophy of truth upon the people of this country? Where is the authority for that?
SHAW, Justice (concurring specially).
**106 I concur with this Court’s dismissal of the various postjudgment motions and requests *614 in this case that ask this Court to enter an order defying the decision of the

Supreme Court of the United States in Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). As discussed below, this Court’s decision, Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala.2015) (“API ”), no longer has a field of operation or any legal effect.
I. The procedural background of today’s ruling
API ordered the probate court judges of this State who were not subject to a contrary federal court injunction to continue to follow Alabama’s marriage laws.46 As I stated in my dissent to that opinion, I am of the view that this Court never had jurisdiction in this case under Ala. Const.1901, Art. VI, § 140(b), or Ala.Code 1975, §§ 12–2–7(2) and (3). API, 200 So.3d at 553 (Shaw, J., dissenting). Furthermore, I am also of the view that the petitioners had no right under Alabama law to pursue the petition in their own names or in the name of the State. I further objected to addressing issues no party had raised. Id. In short, I concluded that the petition was never properly before this Court and should have been dismissed at the outset. I continue to adhere to those views and that conclusion.
Subsequent to, and perhaps as a result of, this Court’s decision in API, all of Alabama’s probate court judges were sued in the United States District Court for the Southern District of Alabama. Strawser v. Strange, 307 F.R.D. 604 (S.D.Ala.2015). All are now subject to a federal class action and an injunction forbidding them from enforcing Alabama’s ban on the issuance of same-sex government-marriage licenses. Strawser v. Strange, 105 F.Supp.3d 1323 (S.D.Ala.2015).47 Because of that federal court injunction, this Court’s decision in API, by its own terms, no longer applies to them. See note 46, supra.
After the decisions in Strawser, one of the parties in this case filed in this Court a request to clarify and “reaffirm” the decision in API “despite” the contrary injunctions issued by the federal district court in Strawser. The Supreme Court of the United States later issued its opinion in Obergefell and held that the United States Constitution barred restrictions on the issuance of same-sex government-marriage licenses. This Court

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“invited” the parties to submit motions or briefs to address the impact of Obergefell. I did not concur with that invitation. In response, several parties in this case and others have now requested this Court to address the impact of Obergefell on API. Among the suggestions are that this Court can ignore Obergefell and that, essentially, this Court can and should order all probate court judges to ignore it too. As a result, we are urged to order our probate court judges to defy the federal court injunction against them. I initially found these post- *615 decision requests to be extraordinary in nature: As explained below, this Court does not ordinarily entertain motions to clarify past cases in light of new Supreme Court decisions, and the law is well settled that this Court can do nothing to allow the probate court judges of this State to ignore a federal court injunction and a Supreme Court decision.
When the Supreme Court of the United States issues a decision calling into question prior decisions of state courts, those prior state court decisions generally are not reopened. The same is true if this Court issues a decision calling into question its own past judgments or past judgments of lower courts. Any new issues are resolved in new litigation, if that is allowed under law. Post-decision filings, other than an application for rehearing, do not demand the use of time and judicial resources by this Court. Cases must end, even if the law later changes. Our decision today refuses to grant the relief requested and should not be construed to mean anything else.48
**107 Those requests—whether so intended—opened the door for additional opinions to be issued by any Justice of this Court wishing to expound on Obergefell. For the reasons explained above, I saw no need for this Court to respond to the resulting requests, and this Court correctly took no action.
However, on January 6, 2016, Chief Justice Moore, who until now has not voted in this case, issued an “administrative order” directing probate court judges to take a course of action contrary to the federal court injunction against them.49 This action *616 on his part, which I view as unauthorized,50 now requires a response by this Court to the petitioners’ requests for clarification.
II. This Court cannot stop a federal court action

A decision by this Court cannot stop the issuance of

federally mandated same-sex government-marriage

licenses; as I have previously expressed, this Court has

never been in a position definitively to rule on whether

Alabama’s

laws

prohibiting

same-sex

government-marriage licenses were constitutional. Ex

parte State ex rel. Alabama Policy Inst., (No. 1140460,

February 13, 2015) (order calling for answers and briefs)

(Shaw, J., dissenting),51 and API, 200 So.3d at 553 (Shaw,

J., dissenting). As is now demonstrated, Alabama’s

probate court judges have always been subject to a federal

court action, and the rulings of the federal district court

have always had the potential of being underpinned by the

decision in Obergefell, which the federal courts would

have certainly enforced over the protestations of this

Court.

We have now been invited to order Alabama’s probate court judges to violate a federal court injunction. Even if this Court had the authority or the inclination to issue such an order, which it does not, the order would accomplish nothing because, if our probate court judges actually followed such an order, their defiance of the federal court injunction would subject them to punitive fines, fees, and sanctions by the federal government, the price of which would have to be paid—at least in part—by the taxpayers and would not stop the enforcement of the federal court decisions. Further, such a course of action would damage the institution of the Alabama Supreme Court and the rule of law, and it would not stop the issuance of federally mandated same-sex government-marriage licenses.

A. All courts follow United States Supreme Court decisions
**108 It has long been understood in American jurisprudence that the decisions of the Supreme Court of the United States are to be followed by lower courts. Obergefell *617 has been decided, and, as this Court has previously acknowledged: “Under Article VI of the United States Constitution, we are bound by the decisions of the United States Supreme Court.” Ingram v. American Chambers Life Ins. Co., 643 So.2d 575, 577 (Ala.1994). It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal

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law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court’s decisions.52
The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be “bow[ing their] knee[s] to the self-established judicial despots of America,” “blindly follow[ing] the unsubstantiated opinion of ‘five lawyers,’ ” “ ‘shrink[ing] from the discharge’ ” of duty, “betray[ing]” their oaths, “blatantly disregard[ing] the Constitution,” standing “idly by to watch our liberties destroyed and our Constitution violated,” participating in the “conversion of our republican form of government into an aristocracy of nine lawyers,” or be adhering to a perceived “evil.” 200 So.3d at 610, 611, 590, 591. They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are “unconvincing” because virtually no one has ever agreed with their rationales.
I would further suggest that the idea that a decision of the Supreme Court does not have application outside the parties to that particular case or outside the federal circuit from which it originated53 is, to be blunt, just silly.54 A statement by a high court as to how that court would rule in every case is one of the very basic definitions of “law”: lower courts follow higher court decisions because they know they *618 will be reversed by the higher court if they do not. The people, judges, and lawyers, in turn, rely on those decisions as statements of the “law.” People do not need to have the Supreme Court of the United States rule against them individually to know what that Court considers legal or constitutional. It is, to say the least, rather nonsensical judicial hairsplitting to suggest that the law has no application to people because they never had a court specifically render a judgment against them on that particular issue. Do we really think that it makes a difference that Obergefell did not originate in Alabama or that Alabama probate court judges were not parties to it?

This peculiar argument, raised in the context of such strong opposition to Obergefell, simply looks like an excuse to avoid a court decision because one disagrees with it.
Conjuring up specious arguments to contend that the courts of this State suddenly do not have to follow the Supreme Court—despite doing so for nearly 200 years—is embarrassing. It does nothing but injure public confidence in the integrity and impartiality of the judiciary.
**109 I further reject any implication that the dissenting Justices in Obergefell have “intimate[d]” or implied that the decision should be defied. I note that in Davis v. Miller (No. 15–A250, August 31, 2015), a Kentucky state official, Kim Davis, applied in the Supreme Court of the United States for a stay of an injunction that required her to issue federally mandated same-sex government-marriage licenses. The application was denied without any written dissents. If the dissenting Justices in Obergefell were sending coded messages to invite state officials to defy Obergefell, then would they have not at least issued dissents to denying relief to Davis, who was such a state official?55
At least one Justice who dissented in Obergefell has previously suggested that when a judge disagrees with the law, defiance is not an option. Justice Antonin Scalia, in an article titled “God’s Justice and Ours,” First Things (May 2002), discussed the options of a judge morally opposed to the death penalty but called upon to rule in such a case:

“I pause here to emphasize the

point that in my view the choice for

the judge who believes the death

penalty to be immoral is

resignation, rather than simply

ignoring

duly

enacted,

constitutional laws and sabotaging

death penalty cases. He has, after

all, taken an oath to apply the laws

and has been given no power to

supplant them with rules of his

own. Of course if he feels strongly

enough he can go beyond mere

resignation and lead a political

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campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do.”
If a judge finds that he or she cannot abide by a controlling decision of a higher court, then that judge should resign from office. He or she should not indulge in the pretense that rebelling against a superior *619 court’s decision is an accepted judicial response. Such conduct does not show respect for or comply with the law; it does not promote public confidence in the integrity or impartiality of the judiciary. Instead, I believe that defiance would bring the judicial office into disrepute.
Additionally, I find curious this idea put forth by Chief Justice Moore that “ ‘the judges in every state’ ” may personally weigh the correctness of any Supreme Court decision and, if they disagree with it, then they may ignore it. 200 So.3d at 597. If this were indeed the case, the Constitution would in no way be protected; instead, it would mean that there would be a different Constitution for every judge based on varying legal opinions. In
McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), a mere “five Justices” of the Supreme Court held that the restriction in the Second Amendment on the federal government’s infringing on the right to keep and bear arms also, through the Fourteenth Amendment, restricted the states. I obey that decision, and not simply because I happen to agree with it. If I did not agree with it, I would still reject the argument that such disagreement would give me the license to ignore it.56 Further, this Court recently held that an Alabama Code section that banned the possession of a pistol on the property of another violated the Constitution. Ex parte Tulley, 199 So.3d 812 (Ala.2015). If the lower court judge, in his “legal opinion,” disagrees with the “five lawyers” who concurred with this Court’s “opinion that purports to interpret” the Constitution, may he ignore it, lest he “betray” his “oath and blatantly disregard the Constitution”? 200 So.3d at 591. I think that this Court’s reaction to such defiance would swiftly squash any such notion.
B. This Court’s opinion of the correctness of Obergefell is not material to our probate court judges

**110 Whether this Court defies the Supreme Court does not matter, of course, because it is not Obergefell that truly controls the probate court judges of this State. Instead, those probate court judges are bound by a federal court injunction that was issued pursuant to a federal
statute, 42 U.S.C. § 1983, before Obergefell was even decided. Article VI of the Constitution, the “Supremacy Clause,” states that “the laws of the United States” trump state law: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So, even if one believes the notion that a Supreme Court decision is not a “law” the Supremacy Clause requires state judges to obey, the federal statute pursuant to which the federal court injunction was issued against Alabama probate court judges still trumps a contrary order by this State Court. When our probate court judges are faced with conflicting federal and state court orders—here a federal injunction issued pursuant to
§ 1983, and directed to parties in that case, versus this Court’s writ of mandamus—the federal court’s order controls. This is why no probate court in this State is currently complying with API or the Chief Justice’s January 6 administrative order and issuing government-marriage licenses to opposite-sex couples but not to same-sex couples. Is it *620 seriously to be suggested that a decision by the Supreme Court of Alabama issued on its own volition can override the decision in a federal court action where the parties are under the jurisdiction of the federal court? Perhaps it distracts too much from the rhetorical points about defying Obergefell to admit that the probate court judges still have to comply with the federal court injunction, no matter what we do in this case. Even if this Court were to right now reject the Supreme Court’s longstanding role as the final arbiter of the meaning of the Constitution and purport to defy its decision in Obergefell, Alabama’s probate court judges are still subject to a lawsuit in a federal district court that would not give a whit about this Court’s actions. In any event, if anyone believes that this Court can issue a ruling on these requests that would allow our probate court judges to legally continue Alabama’s prohibition on the issuance of same-sex government-marriage licenses, such belief is refuted by 200 years of law and practice. We can express our well founded frustration at the unprecedented nature of Obergefell, but we cannot stop its effect. Judges should not lead the people of this State to believe otherwise.

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III. Challenges to Obergefell cannot come from this Court
**111 The debate over the legal and moral propriety of same-sex government marriage will certainly continue; but that debate has necessarily shifted to the court of public opinion. The issue, for all practical purposes, is now a political one. The genius of our Founding Fathers is reflected in our constitutional form of government, which dictates that whether Obergefell stands the test of time or ultimately finds itself cast upon the trash heap of history depends upon the people of the United States, who serve as the ultimate repository of political power and whose collective voices can be heard through their elected representatives at both the federal and state levels. See U.S. Const., art. V (setting out the procedure for amending the Constitution). If there is to be a showdown with respect to this issue, it could never have been led by this Court. Such a showdown must pit the judicial will of the highest court in the land against the greater political will of the people of this country.

Obergefell on lower courts. I cannot speak for all judges who understand that the rule of law expressed by a court of competent jurisdiction, and not the contrary opinion of a *621 lower court judge, is the bedrock upon which our legal system was established and upon which its stability depends. I can say, however, that I have proudly fulfilled my oath of office since the day the people of Alabama first honored me in 2001 with the title “Judge” and placed on me the great responsibilities that go along with that title and that I have spent over 31 years in the service of my State striving to vindicate the rule of law and not to legislate from the bench. I am certainly no apologist for the Supreme Court of the United States, whose decisions have sometimes confounded me over the years.57 But there is a right way and a wrong way under Alabama law and the United States Constitution for that Court’s decisions to be questioned and addressed. Judges should act like judges, not frustrated policymakers, or, as Justice Scalia has suggested, they should resign on principle. Failure to do either, in my opinion, degrades public confidence in the judiciary.

“To every thing there is a season, and a time to every purpose under the heaven ... a time to keep silence, and a time to speak....” Ecclesiastes 3:1–7. In accordance with my views concerning this Court’s lack of jurisdiction, I believe that this Court should have dismissed this case at the outset; however, it is now time for the people to speak their conscience on the issue of same-sex government marriage, if they so choose.
Chief Justice Moore and Justice Parker have assumed for themselves the mantle of authority to declare a decision of the Supreme Court of the United States an illegitimate nullity. Justice Parker goes further to declare that the rule of law is dead. These are bold declarations from “two lawyers” sitting on a court subject to the decisions of that higher court. To me, the irony of doing this while failing to address this Court’s own lack of jurisdiction and its failure to follow its own well established rules of review is inescapable.
Equally troubling to me are the veiled criticisms directed toward other Justices of this Court—quoted above—who, despite principled reservations to the contrary, might follow well recognized, uncontroversial precedents that require the acknowledgment of the binding impact of

IV. Chief Justice Moore’s statement of nonrecusal
**112 Normally, the Justices of this Court would not comment on another Justice’s reasons for declining to recuse himself or herself in a case. That is a matter for the recusing Justice’s conscience, and unlike the federal courts,58 this Court has no mechanism for disqualifying one of its own members. However, Chief Justice Moore has used my name and my rationale in Ex parte Hinton, 172 So.3d 348 (Ala.2012), as support for the position he takes in his statement of nonrecusal. I am thus compelled to take the unusual step of disassociating my prior words from his current position.
Chief Justice Moore notes that he issued an administrative order on February 8, 2015, instructing the probate court judges that they were not required to comply with certain federal court injunctions in cases in which they were not named parties. In this case, one of the prior issues raised was whether the probate court judges were required to adhere to that administrative order.
In Hinton, I noted that there exists a reasonable basis to question a judge’s impartiality when he sits in appellate

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review of his decision as a lower court judge. Chief Justice Moore states that, for an analogous reason, he declined to vote in the previous orders in this case because his February 8, 2015, order “addressed the issue whether probate judges in Alabama were bound by” certain federal court injunctions, which was one of the issues raised in the case. 200 So.3d at 562.
I noted in Hinton that the requirement to recuse one’s self did not apply when the *622 issues in the new case were not the same as the issues in the prior case the judge had addressed. Chief Justice Moore states that the issue addressed in his February 8 order—whether the probate court judges were bound by certain federal court orders—was “mooted” by this Court’s decision in API. The Chief Justice states that there now exists a “new” issue: “[T]he effect of Obergefell on this Court’s mandamus order [the API decision] that the probate judges are bound to issue marriage licenses in conformity with Alabama law.” The “issue now before the Court,” he says, “ ‘does not involve a determination of the correctness, propriety, or appropriateness’ ” of his February 8 order. 200 So.3d at 563.

impact this Court’s prior decision. He then ordered the probate court judges to continue to apply API. These are the very things the motions before us argue and call upon the Court to address. Whether it can be claimed that the January 6 order did not actually address the same issues is not material; the focus should be on the appearance of impropriety, even if disqualification is not required by law. See Canon 3.C.(1) (“A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned....” (emphasis added)); Hinton, 172 So.3d at 354 (“ ‘[A] reasonable person has a reasonable basis to question the impartiality of a judge who sits ... to review
his own decision....’ ” (quoting Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir.1978))). The ethical considerations here involve judicial prudence and discretion, not technicalities. My statement in Hinton in no way provides Chief Justice Moore with justification to participate or vote in this case. Whether any participation or vote by him violates the Canons of Judicial Ethics is an issue I do not address.

The February 8, 2015, administrative order is not the only order Chief Justice Moore has issued. On January 6, 2016, he issued a second administrative order. While stating in that order that he was “not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court,” he went on to make the same arguments he makes in his special writing to explain that Obergefell did not

BOLIN, J., concurs as to Part II.A.
All Citations 200 So.3d 495, 2015 WL 892752

Footnotes

*

Note from the reporter of decisions: Although this order is dated March 10, 2015, it was released to the public on

March 11, 2015.

1

The petition notes that API

“is a 501(c)(3) non-partisan, non-profit research and education organization with thousands of constituents throughout Alabama, dedicated to influencing public policy in the interest of the preservation of free markets, rule of law, limited government, and strong families, which are indispensable to a prosperous society. API achieves these objectives through in-depth research and policy analysis communicated through published writings and studies which are circulated and cited throughout the state and nation. Over the years, API has published a number of studies showing the great benefits to families of marriage between one man and one woman and the detriments associated with divorce, cohabitation, and same-sex unions, particularly when children are involved. API has consistently cautioned against the gradual shift toward sanctioning same-sex marriage on this basis. API was a leading proponent of both the ... Act, passed in 1998, and the ... Amendment, which was approved by 81% of

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Alabama voters in 2006.”
The petition notes that ACAP
“is a non-profit 501(c)(4) organization with thousands of constituents throughout Alabama, which exists to promote pro-life, pro-family and pro-moral issues in [Alabama]. In addition to lobbying the Alabama Legislature on behalf of churches and individuals who desire a family-friendly environment in Alabama, [ACAP] provides a communication link between Alabama legislators and their constituents. After passage of the ... Act, [ACAP] vigorously promoted passage of the ... Amendment to both legislators and citizens, making [ACAP] instrumental in the resulting 81% vote approving the ... Amendment in 2006.”

2

Realignment of the parties in civil actions in Alabama is not uncommon. See, e.g., Richards v. Izzi, 819 So.2d 25, 28

(Ala.2001) ( “Jefferson County, although originally a defendant, was realigned as a plaintiff.”). Realignment is not

uncommon, even when the jurisdiction of the court is called into question. Indeed, when cases are removed to federal

court based on diversity jurisdiction, federal courts allow post-removal realignment of parties in order to create

diversity. See Lott v. Scottsdale Ins. Co., 811 F.Supp.2d 1220, 1223 (E.D.Va.2011) (noting that “[t]he first question

presented—whether post-removal party realignment to create diversity is permissible—is easily answered in the

affirmative based on settled authority in this circuit and elsewhere” and providing footnote citing multiple authorities). In

this regard, the United States Court of Appeals for the Eleventh Circuit has observed:

“[F]ederal courts are required to realign the parties in an action to reflect their interests in the litigation. The parties

themselves cannot confer diversity jurisdiction upon the federal courts by their own designation of plaintiffs and

defendants. City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941). This Court concludes that the converse of this principle—that parties cannot avoid diversity by their designation of the parties—is also true. Rather it is the ‘duty ... of the lower federal courts[ ] to look beyond the pleadings and arrange

the parties according to their sides in the dispute,’ Northbrook Nat’l Ins. Co. v. Brewer, 493 U.S. 6, 16 n. 5, 110 S.Ct. 297, 302 n. 5, 107 L.Ed.2d 223 (1989) (citations and quotations omitted), as determined by ‘the principal

purpose of the suit’ and ‘the primary and controlling matter in dispute,’ City of Indianapolis, 314 U.S. at 69, 62 S.Ct. 15.”

City of Vestavia Hills v. General Fid. Ins. Co., 676 F.3d 1310, 1313–14 (11th Cir.2012) (emphasis omitted). As the Eleventh Circuit explained, it is a court’s duty to align the parties on their proper sides without regard to the effect of the realignment on jurisdiction. By doing so, we merely “ ‘ “look beyond the [nomenclature of the] pleadings and

arrange the parties according to their sides in the dispute.” ’ ” Northbrook Nat’l Ins. Co. v. Brewer, 493 U.S. 6, 16 n. 5, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989) (quoting other cases).

3

“For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships

between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So

widely shared, the tradition until recently had been adopted by all governments and major religions of the world.”

DeBoer v. Snyder, 772 F.3d 388, 395–96 (6th Cir.2014). As Blackstone stated: “[T]he most universal relation in nature” is that between a parent and child, and that relationship proceeds from the first natural relation, that between husband and wife. 1 William Blackstone, Commentaries *446. The “main end and design of marriage” is “to ascertain and fix upon some certain person, to whom the care, protection, the maintenance, and the education of the children should belong.” Id. at *455. And

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those duties are duties of natural law. Id. at *447–50.

4

The history of the Searcy litigation appears to be yet another manifestation of the confusion that has been generated

by this matter. According to the complaint in Searcy I, the plaintiffs, C.D.S. and K.M., a same-sex couple, had been

married in California, and K.S. was K.M.’s biological son. In December 2011, C.D.S. filed a petition in the Mobile

Probate Court seeking to adopt K.S. under a provision of Alabama’s adoption code that allows a person to adopt a

“spouse’s child.” § 26–10A–27, Ala.Code 1975.

In April 2012, the Mobile Probate Court, acting through Judge Don Davis, entered a final judgment denying C.D.S.’s

petition for adoption as a matter of law based on the Amendment and the Act. C.D.S. appealed, and the Court of

Civil Appeals affirmed the April 2012 judgment. See In re K.R.S., 109 So.3d 176 (Ala.Civ.App.2012). C.D.S. did not

seek further appellate relief.

In May 2014, C.D.S. and K.M. filed their complaint in Searcy I; the defendants included Attorney General Strange

and Mobile Probate Judge Davis, among others. The complaint sought an order requiring, among other things, that

the defendants grant the adoption of K.S. by C.D.S. The claims against Judge Davis were subsequently dismissed

with prejudice. It is unclear to this Court whether the claims against Judge Davis were dismissed because he would

function as a court of law, rather than as an executive minister of the law, in relation to any petition within the state

judicial system seeking an adoption. (Alternatively, it is unclear whether the claims against Judge Davis were

dismissed because the final judgment he entered in April 2012, based as it was on a matter of law, represented a res

judicata bar to the relief being sought in the federal court in Searcy I.) By the same token, it is unclear on what basis

a “case or controversy” existed between the plaintiffs in Searcy I and the Attorney General given the Attorney

General’s lack of authority to affect the actions of the court of law responsible for adjudicating adoption cases. See

also note 16, infra.

5

The opinion in Alabama Textile did note that the parties agreed that it was necessary to complete relief that the Court

act, but as discussed below, that agreement was considered by the Court only in making the discretionary

determination delegated by law to the Court with respect to whether action by it was necessary to provide the relief

needed. Ultimately, and most importantly as to this point, the Court was quite clear in its conclusion that such consent

is neither necessary nor sufficient to such a determination.

6

In Ex parte Jim Walter Resources, Inc., 91 So.3d 50 (Ala.2012), the Court considered the question whether it had

original jurisdiction over an original petition filed in this Court seeking a writ of mandamus to direct a probate judge to

record a mortgage document. The Tuscaloosa County Probate Court had refused to record the mortgage documents

filed by Jim Walter Resources (“JWR”) unless a recordation tax was first paid. See § 40–22–2, Ala.Code 1975. We

explained that “imposing the recordation tax on a mortgage recorded in a county is part of the administrative duties of

the probate judge of the county and, as such, is a ministerial function,” and that “[a] writ of mandamus will lie to compel

a court to perform ministerial duties.” Jim Walter, 91 So.3d at 53. Further, we explained our ability to exercise our

original jurisdiction over the petition filed with us by explaining that a circuit court’s appellate jurisdiction over probate

matters is limited under § 12–22–21, Ala.Code 1975, and did not include the taxing issue involved in that case. Id.

7

Rarely, if ever, could a party attempt to bring a viable public-interest action in the name of the state for the purpose of

challenging the state’s laws, because the state normally would have no interest in such an action. Thus, public-interest

standing generally is limited to cases in which a relator seeks on behalf of the state to secure the enforcement of the

state’s laws. See discussion of cases below. Where a party seeks to halt enforcement of a duty otherwise owed to the

public, as is common in an action seeking to invalidate a state statute, he or she generally must be able to show a

private interest to be vindicated. See, e.g., Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d at 1256

(action seeking to invalidate a state statute) (noting that “[i]n Jones v. Black, 48 Ala. 540 (1872), this Court first

articulated a test for determining whether a party has the necessary standing,” and explaining that “ ‘[a] party who

seeks to have an act of the legislature declared unconstitutional, must ... show that he is, or will be injured by it’ ”

(quoting Jones, 48 Ala. at 543)); Alabama Alcoholic Beverage Control Board v. Henri–Duval Winery, L.L.C., 890 So.2d

at 74 (stating that “[a] party establishes standing to bring a challenge” to a state statute when it demonstrates the

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), elements). Compare, e.g., State ex rel. Highsmith v. Brown Serv. Funeral Co., 236 Ala. 249, 251, 182 So. 18, 19 (1938) (allowing the suit to go forward on other grounds, but agreeing with the defendants’ general assertion that “relator shows no interest in the controversy, and that one without interest cannot attack an act of the Legislature because it is unconstitutional, which is the attack here made”).

8

See also State ex rel. Bronster v. Yoshina, 84 Haw. 179, 185, 932 P.2d 316, 322 (1997) (“[S]tanding barriers

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should not serve to bar cases of public interest under our jurisdiction. More specifically, ‘federal justiciability standards are inapplicable in state court declaratory judgment actions involving matters of great public importance.’ ” (citation omitted)); State ex rel. Twenty–Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo.1992) (“The threshold requirement for standing is extremely low where mandamus is brought to enforce a nondiscretionary duty allegedly required of a public official.... Even a private citizen was held to have ‘the sesame which unlocks the gates of mandatory authority whenever an officer whose functions are purely ministerial refuses to perform his office.’ ” (citation
omitted)); and State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974) (“[I]t has been clearly and firmly established that even though a private party may not have standing to invoke the power of this Court to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.” (emphasis added)).

9

Though it may appear that the duty involved in Rodgers was one owed to the government, i.e., to the circuit clerk, the

purpose of requiring the sheriff to file the reports was because the public had an interest in knowing who had been

committed to and discharged from the prisons.

10 The fact that two of the relators here are public-interest, nonprofit corporate entities rather than natural persons does not disqualify them as plaintiffs. See, e.g., Marone, 967 N.Y.S.2d at 589, 39 Misc.3d at 1041 (“The public interest
standing of a citizen has been extended to corporations as well as other organizations.”); Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal.4th 155, 168, 127 Cal.Rptr.3d 710, 720, 254 P.3d 1005, 1013 (2011) (“[C]orporate entities should be as free as natural persons to litigate in the public interest.”); State ex rel. Ohio Motorists Ass’n v. Masten, 8 Ohio App.3d 123, 129, 456 N.E.2d 567, 573 n. 4 (1982) (“We are persuaded that an Ohio corporation may have as great an interest as a natural person in seeking the just enforcement of state laws, and may be considered to be a citizen of the state of Ohio entitled to institute an action in mandamus.”); cf. Jackson Sec. & Inv. Co. v. State, 241 Ala. 288, 292, 2 So.2d 760, 764 (1941) (“The general rule is recognized everywhere that a corporation is a citizen, resident or inhabitant of the state under whose laws it was created.”); and § 10A–1–2.11, Ala.Code 1975 (“[W]hether or not expressly stated in its governing documents, a domestic entity has the same powers as an individual to take action necessary or convenient to carry out its business and affairs.”).

11 In a different sense of the public’s “interest,” the intensity of the public’s interest in preserving the institution of marriage as it has always been understood, a union between one man and one woman, is evidenced by the ratification of the Amendment in 2006 by 81% of Alabama voters. Certification of Constitutional Amendment Election Results (June 6, 2006), http://www.alabamavotes.gov/downloads/election/2006/primary/ProposedAmendments–OfficialResultsCertification–06 –28–2006.pdf (last visited March 2, 2015; a copy of the Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court).

12 Other matters that arguably fall into the category of a state’s sovereign rights include the power of eminent domain, see
West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 533, 12 L.Ed. 535 (1848) (recognizing that “the power [of eminent domain] ... remains with the States to the full extent in which it inheres in every sovereign government, to be exercised by them in that degree that shall be ... deemed commensurate with public necessity”), and the power to
enforce criminal laws, see United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (observing that both the federal and state governments had “the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each ‘is
exercising its own sovereignty, not that of the other’ ”) (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922)).

13 Even Lujan itself, at least on its facts, is not inconsistent with the understanding that a private right is needed when one seeks to assert a claim based on a duty owed to the government as such. Clearly, Lujan is not easily assessed, and some have questioned the consistency of application of the principles expressed therein, even in federal cases. See,
e.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 641–42, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Souter, J., dissenting) (stating that “ ‘the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,’ leaving it impossible ‘to make application of the constitutional
standing requirement a mechanical exercise’ ” (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82

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L.Ed.2d 556 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., ––– U.S. ––––, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014))); Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L.Rev. 301, 302–04 (2002) (observing that Lujan’s “easily-stated formula hides much of the complexity of modern case or controversy analysis). (Of course, a state is free to reject or modify Lujan as it may see

fit. See, e.g., ASARCO, Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (“[T]he state judiciary here chose a different path, as was their right, and took no account of federal standing rules in letting the case go to final judgment in the Arizona courts.”).) One possible explanation for the seemingly disparate results achieved is that some cases, including Lujan and the cases upon which it relies, may be understood as involving attempts by private litigants to state a cause of action by relying upon duties actually owed to a governmental unit, commonly by another governmental unit, whereas others involve what may be understood as seeking to enforce a duty more directly

owed to the public. Compare Lujan; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922);

Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Ex parte Levitt, 302 U.S. 633, 58

S.Ct. 1, 82 L.Ed. 493 (1937); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41

L.Ed.2d 706 (1974); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (abrogated on other

grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., ––– U.S. ––––, 134 S.Ct. 1377, 188 L.Ed.2d 392

(2014)); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102

S.Ct. 752, 70 L.Ed.2d 700 (1982); and

Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135

(1990) (duty sued upon was owed to a person other than the plaintiff), with Federal Election Comm’n v. Akins, 524

U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(seeking to require compliance with anti-pollution laws); and

Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (recognizing standing in several environmental groups seeking to enforce a duty imposed on the EPA to regulate certain carbon-dioxide emissions).

See generally Union Pac. R.R. v. Hall, 91 U.S. 343, 23 L.Ed. 428 (1875) (holding that a member of the public may bring a mandamus petition to enforce a public duty and need not possess a particularized interest in the duty).

14 Mooring v. State, 207 Ala. 34, 91 So. 869 (1921), and Tarver v. Commissioners’ Court, 17 Ala. 527, 531 (1850), are among the examples of cases implicating the State’s sovereign right of taxation in which a private party was permitted to bring a mandamus petition to force a government entity to collect a tax precisely because the party had a private interest in the tax collected. At issue in Tarver was a statute that provided: “ ‘That it shall be lawful for the commissioners’ court of roads and revenue of the county of Tallapoosa to impose such tax in addition to the tax levied for county purposes, as may be necessary to pay any amount of money that the court-house commissioners of said county may be liable to pay for building the court-house and jail.’ Under the authority of these several acts, [Tarver] with the other commissioners contracted with Cameron & Mitchell for the erection of the county buildings, agreeing to pay them $18,000. The buildings were completed and were received and used by the county. The [Commissioners Court of Tallapoosa County] paid from the proceeds of the sale of the lots the amount agreed on, less the sum of thirty-five hundred dollars. This amount they declined paying on the ground that the work was not completed according to contract. A suit was instituted against [Tarver and the other commissioners] and a judgment finally rendered for twenty-five hundred dollars. The commissioners’ court has levied a tax and paid a part of this judgment, but refuses to pay any more or to levy a tax for that purpose.” 17 Ala. at 531. All the commissioners besides Tarver at the time the contract was executed died or left the State, and consequently execution of the judgment was made solely against Tarver. Tarver brought a mandamus petition under the authority of the statute to force the current Commissioners of the Court of Tallapoosa County to levy a tax to pay the judgment against him. The circuit court dismissed the petition. On appeal, this Court granted the petition, stating:

“We think it very clear that it is the duty of the commissioners’ court under these facts to levy and collect a tax sufficient to pay the amount of the judgment still unpaid, as well as such amount as may be justly due to the petitioner, and that he has the legal right to demand of

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them the performance of this duty.”

17 Ala. at 531.

15 Nor would it be of any import for purposes of this proceeding that it was initiated only by the associational relators and not also Judge Enslen. Judge Enslen is a proper party before this Court and has been properly realigned as a relator on behalf of petitioner State of Alabama. Under the circumstances presented, we are clear to the conclusion that, to the extent our precedents applicable to actions filed in trial courts require their dismissal if filed by a party without standing, those precedents have no application here. Our supervisory authority is sufficient to enable us to effect that realignment and accept jurisdiction over the resulting adversarial proceeding in furtherance of our responsibility to restore and maintain order within our judicial system, particularly where as here the State was originally named petitioner and continues as the petitioner and the realignment of Judge Enslen would, at most, effect merely a substitution of the relating person to speak on its behalf.
16 That is, a lower federal court, which has no appellate authority over any state court judge acting in a judicial capacity, has no authority or jurisdiction over a state court’s rulings as to cases before that state court judge acting in his or her judicial capacity, including as to questions of law. That would be the case, for example, as to a probate judge handling an adoption case or an estate-administration case, as opposed to acting in a ministerial capacity to record a deed or to issue a license. The proper avenue, indeed the only avenue, for appellate review of a final trial court judgment in such a case is “upward” through the coordinate state court system, of which that trial court is a part, followed thereafter by a petition for a writ of certiorari to the United States Supreme Court if necessary. By way of example, the plaintiff in Searcy I filed at least one previous petition seeking approval of the adoption of the child at issue. As has been noted, in April 2012, Mobile Probate Judge Davis entered a final trial court order denying that petition on the ground that the requested adoption was not permitted under the Amendment and the Act. C.D.S., as was the proper course, sought relief within the appellate courts of this state. See In re K.R.S., 109 So.3d 176 (Ala.Civ.App.2012).
17 “ ‘[R]egulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the
States.’ ” United States v. Windsor, ––– U.S. at ––––, 133 S.Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). The Windsor Court also observed that “ ‘[e]ach state as a sovereign has a
rightful and legitimate concern in the marital status of persons domiciled within its borders.’ ” – –– U.S. at ––––, 133
S.Ct. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942)). We note that Windsor’s acknowledgment of the states’ sovereign authority over marriage refers to the powers of the states vis-à-vis the federal government. Our discussion in Part II.B of this opinion notes that marriage is a duty owed to the public rather than what on-relation cases such as Kendrick have described as “sovereign rights of the state,” which are duties “owed to the government as such.” The fact that, as between the federal government and the states, the law of marriage falls within the sovereign powers of the states does not affect whether marriage licensing is a duty owed to the public rather than one owed to the government as such.
18 Laws that include the concept of marriage as the union of one man and one woman, however, predate the inception of Alabama as a state in 1819. In 1805—when Alabama was still a part of the Mississippi Territory—the legislature of the Mississippi Territory passed an act imbuing orphans’ courts with the power to grant and issue marriage licenses. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 4 (1823). That act remained in force after the creation of Alabama as a state in 1819 and contained language referring to persons joined together as “man and wife.” See H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 6 (1823). Furthermore, in 1805, the plain, ordinary, and commonly understood meaning of the word “marriage” was “the act of joining: man and woman.” Webster, A Compendious Dictionary of the English Language, 185 (1806). Following Alabama’s becoming a state in 1819, Alabama law continued to include the concept of marriage as the union of one man and one woman. See Hunter v. Whitworth, 9 Ala. 965, 968 (1846) (“Marriage is considered by all civilized nations as the source of legitimacy; the qualities of husband and wife must be possessed by the parents in order to make the offspring legitimate, where the municipal law does not otherwise provide.” (emphasis added)). In 1850, the Alabama Legislature conferred the power to issue marriage licenses to the newly created probate courts. 1850 Ala. Laws 26. This power was officially codified in 1852. See Ala.Code 1852, § 1949.
19 Few courts that have ordered the issuance of marriage licenses to same-sex couples appear to have contemplated this issue. The alternative, however, appears to allow the judiciary to declare by judicial fiat a new statutory scheme in

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place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme
being stricken, all contrary to well established state and federal principles of judicial review. As we observed in King v. Campbell, 988 So.2d 969, 981–83 (Ala.2007):
“This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa, 251 Ala. 209, 217, 36 So.2d 487, 493 (1948):
“ ‘... The act “ought not to be held wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.” A. Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So.2d 23, 25 [ (1945) ]; Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 [ (1934) ]; 6 R.C.L. 125, § 123.’ “(Emphasis added.) “.... “ ‘... It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent.’
“[ Springer v. State ex rel. Williams, 229 Ala. 339,] 342–43, 157 So. [219,] 222 (1934) (emphasis added). See
also City of Birmingham v. Smith, 507 So.2d 1312, 1317 (Ala.1987), describing the test as whether the legislature would have enacted the statute without the void provision.” (Final emphasis added.) See also Robert L. Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L.Rev. 76, 76 (1937), explaining that “the United States Supreme Court, the state courts, and secondary authorities all appear to agree that the test for whether the invalidity of part of a law or of some of its applications will not affect the remainder is ‘(1) if the valid provisions or applications are capable of being given legal effect standing alone, and (2) if the legislature would have intended them to stand with the invalid provisions stricken out.’ ”

20 For that matter, it has existed in history since ancient times. See, e.g., Charles P. Kindregan, Jr., Same–Sex Marriage: The Cultural Wars and the Lessons of Legal History, 38 Fam. L.Q. 427, 428 (2004) (noting that “[t]he Code of Hammurabi, 1780 B.C., provided that ‘if a man take a wife and does not arrange with her the proper contracts, that woman is not his legal wife’ ”).

21 The issue in Lofton was whether a Florida statute prohibiting adoption by practicing homosexuals violated the equal-protection and due-process rights of homosexual persons desiring to adopt. The United States Court of Appeals for the Eleventh Circuit determined that no fundamental right to private sexual intimacy existed and, thus, that the Florida statute was subject to rational-basis analysis. It was significant to the Eleventh Circuit in Lofton that “the
involved actors are not only consenting adults, but minors as well.” 358 F.3d at 817. Such is the case with the underlying action before the Mobile Probate Court.

22

Compare DeBoer, 772 F.3d at 400 (observing that “[o]nly the Supreme Court may overrule its own precedents, and

we remain bound even by its summary decisions ‘until such time as the Court informs [us] that [we] are not’ ” and that

“[t]he Court has yet to inform us that we are not” to follow Baker ), with Baskin v. Bogan, 766 F.3d 648, 660 (7th

Cir.2014) (stating that “ Romer v. Evans, 517 U.S. 620, 634–36, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996);

Lawrence v. Texas, 539 U.S. 558, 577–79, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative”).

23 The Searcy I plaintiffs might respond that defining marriage inherently as available only to members of the opposite sex is also circular, but that argument ignores the fact that millennia of practice stand behind the traditional definition. Such a mistake is similar to an employee’s complaining that his boss cannot tell him what to do because no one informed him that being an employee meant that he would have to do what someone else told him to do. To state that being an employee means that a person works for someone else is not circular reasoning: it is just describing the nature of an “employee.” Likewise, as will be explained more fully in the text below, to state that being married involves two people of the opposite sex joining in a special relationship is not circular: it merely describes the nature of being

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“married.”
24 This not-so-subtle redefinition of “marriage” is an example of what law professor Steven D. Smith calls “smuggling,” which “implies that an argument is tacitly importing something that is left hidden or unacknowledged—some undisclosed assumption or premise.” Steven D. Smith, The Disenchantment of Secular Discourse 35 (2010). Smith goes on to explain that such a tactic is “illicit” when making the undisclosed premise

“explicit would be controversial: you would have to defend the premise, and you don’t want to do that. Or your premise might be illicit because you yourself do not believe it: you like your conclusion, maybe, but you don’t actually believe what would be necessary to support this particular argument for that conclusion. Perhaps, if you were to make your unstated premise explicit, you would be convicted of inconsistency, because you have contradicted that premise on other occasions. Or your premise might be illicit because the conventions of the discourse you are engaging in purport to exclude it.”

Id. at 36. In this instance, the first two reasons Smith offers for “smuggling” are the most likely to apply. Proponents of the new definition of marriage do not want to have to defend the premise behind their change of definition because doing so would necessarily require the introduction of legislation to effect the change rather than a court order. Also, as is explained in note 31 and the accompanying text, the new definition of marriage put forward by proponents of same-sex marriage carries implications that proponents themselves either do not believe or do not want explicitly revealed at this time because they know that a large majority of the populace is not ready to accept those implications.

25

See also Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 365–66, 798 N.E.2d 941, 984 (2003) (Cordy, J.,

dissenting):

“This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man and a woman is merely ‘conclusory’ ..., rather than the basis on which the ‘right’ to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that ‘marriage’ includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the ‘right’ of same-sex couples to ‘marry.’ ”

26 The Bostic Court, among others, asserted that “Glucksberg ‘s analysis applies only when courts consider whether to recognize new fundamental rights” and that including same-sex couples in the right to marry does not create a new
right, and so, conveniently, it did not matter that there is no historical tradition of same-sex marriage. 760 F.3d at 376. The Bostic Court noted that the Supreme Court did not contend that it was creating a new fundamental right to
interracial marriage when it struck down Virginia’s miscegenation statute as unconstitutional in Loving. Id. at 376–77. This point ignores the fact that the Loving Court did not need to create a new fundamental right in order to subject Virginia’s statute to strict-scrutiny analysis because the statute discriminated on the basis of race, which is an express suspect classification in the Fourteenth Amendment.

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27 In contrast to the assertion that marriage is “wholly secular,” plaintiffs in some actions seeking to nullify state laws limiting marriage to its traditional understanding have contended that those laws violate the Establishment Clause of

the First Amendment to the United States Constitution. See, e.g., Love v. Beshear, 989 F.Supp.2d 536, 541

(W.D.Ky.2014);

Brenner v. Scott, 999 F.Supp.2d 1278, 1284 (N.D.Fla.2014); Love v. Pence, (No.

4:14–CV–00015–RLY–TA, Sept. 16, 2014) 47 F.Supp.3d 805 (S.D.Ind.2014).

So which is it? Is marriage a purely civil institution or is it a hybrid of religious and civil acknowledgments of a

relationship? So far no court has declared that laws recognizing that marriage exists only between a husband and

wife violate the Establishment Clause. Presumably, the issue thus far has been avoided at least in part because the

notion that traditional marriage laws violate the Establishment Clause borders on the absurd. Just recently, the

United States Supreme Court concluded that the practice of opening legislative meetings with prayer does not

violate the Establishment Clause solely because the same practice occurred during the period the First Amendment

was framed and ratified. See Town of Greece v. Galloway, ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). It seems safe to assume that the Founders similarly perceived no Establishment Clause problem with state marriage laws. Regardless of the chance of succeeding on such a claim on its merits today, the fact that some proponents of same-sex marriage now contend that traditional marriage laws violate the Establishment Clause suggests that some of the same precepts upon which the proponents rely in the current debate may be renewed in arguments over successive issues yet to come.

28

As has been noted, the United States Supreme Court stated in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed.

654 (1888), that marriage is “the most important relation in life,” id. at 205, and that it is “the foundation of the family

and of society, without which there would be neither civilization nor progress,” id. at 211.

29 Judge Cordy in his dissenting opinion in Goodridge observed:

“Casting the right to civil marriage as a ‘fundamental right’ in the constitutional sense is somewhat peculiar. It is not referred to as such in either the State or Federal Constitution, and unlike other recognized fundamental rights (such as the right to procreate, the right to be free of government restraint, or the right to refuse medical treatment), civil marriage is wholly a creature of State statute. If by enacting a civil marriage statutory scheme [a state] has created a fundamental right, then it could never repeal its own statute without violating the fundamental rights of its inhabitants.”

440 Mass. at 366 n. 3, 798 N.E.2d at 985 n. 3 (Cordy, J., dissenting). The DeBoer Court provided an extensive explanation as to why categorizing the right to marry as fundamental in the constitutional sense
“makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No–Fault Divorce and the Divorce Conundrum, 1991 BYU L.Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny. “Consider also the number of people eligible to marry. As late as the eighteenth century, ‘[t]he predominance of monogamy was by no means a foregone conclusion,’ and ‘[m]ost of the peoples and cultures around the globe’ had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage’s fabric. Beginning in the nineteenth century, the federal government ‘encouraged or forced’ Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a
federal antibigamy law. Id. at 26; see Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1878).

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The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages? “Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid–1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L.Rev. 1817, 1824–32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed ‘desirable in many parts of the world’; indeed, around ‘10 percent of marriages worldwide are between people who are second cousins or closer.’ Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009).... Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when Kansas—followed by seven other States—enacted the first ban. See Diane B. Paul & Hamish G. Spencer, ‘It’s Ok, We’re Not Cousins by Blood’: The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi, 998 So.2d 731, 749 (La.Ct.App.2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so.”
DeBoer v. Snyder, 772 F.3d 388, 412–13 (6th Cir.2014)(emphasis omitted). These observations take issue with the United States Supreme Court’s designation of marriage as a fundamental constitutional right. Perhaps the strongest recommendation for this view is the simple fact that the United States Constitution does not mention marriage. Indeed, the Supreme Court has observed that “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution
delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock
v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). Saying that marriage is not a fundamental constitutional right would not demean its importance because “something
can be fundamentally important without being a fundamental right under the Constitution.” DeBoer, 772 F.3d at 411. It would simply mean that the Constitution does not dictate policy on the matter.

30

See Lawrence, 539 U.S. at 578 (“The case does involve two adults who, with full and mutual consent from each

other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their

private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a

crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without

intervention of the government.”).

31 For that matter, if love is the defining criterion for marriage, then why must it be limited to marriage between two persons who are both adults, or for that matter between two persons? Where is the definitional limitation in such a criterion? What other limitations that we assume will continue to be true of marriage would logically yield to this criterion?

32

See DeBoer, 772 F.3d at 404 (“One starts from the premise that governments got into the business of defining

marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the

intended and unintended effects of male-female intercourse.”).

33 One need only consider paternity to name one obvious example of the ways in which marriage organizes social
relations. See, e.g., Lehr v. Robertson, 463 U.S. 248, 263, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (noting that “[t]he most effective protection of the putative father’s opportunity to develop a relationship with his child is provided by the laws that authorize formal marriage and govern its consequences”).

34 In a footnote of its opinion, the federal district court rejected several of these purposes of traditional marriage laws—the history and tradition of marriage, encouraging responsible procreation, promoting optimal child-rearing—as not

constituting “compelling” state interests by simply citing Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014). Bostic sidelined the importance of these purposes of marriage by taking the view that marriage is not just about procreation;

rather it is concerned with the happiness of a relationship between two adults. See Bostic, 760 F.3d 352, 380 (“[T]he Supreme Court rejected the view that marriage is about only procreation in Griswold v. Connecticut, in which it upheld married couples’ right not to procreate and articulated a view of marriage that has nothing to do with children.”).

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2015 WL 892752
There are at least three problems with this tactic.
First, no one is saying that “marriage is about only procreation.” Bostic, 760 F.3d at 380 (emphasis added). The State is simply stating that a primary public purpose of marriage concerns procreation and that this is sufficient justification to make a distinction in law as to the types of couples who can marry. The fact that marriage encompasses more than procreation does not by itself invalidate procreation as an interest in the State’s marriage policy. Second, the decision in Griswold was not based on a “right to marry”; it was based on a right to privacy. See
Griswold, 381 U.S. at 486 (“We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”) As with the discussion above about Lawrence, the problem in Griswold was government’s interference with an intimate aspect of an existing relationship, in which the Griswold Court clearly was referring to the traditional marriage relationship. (Why else would contraception even be an issue?) The issue here concerns the government’s public recognition of a relationship that until 2002 was unknown in history as being categorized as “marriage.” Third, the Bostic Court’s cavalier rejection of the purposes of traditional marriage fails to acknowledge that the Court made a moral judgment that the new definition of marriage is superior to the traditional view. As Steven Smith has noted:

“[H]ow can we argue about the desirability or justice of restrictions on abortion, or marriage, or drug use, without somehow drawing upon our larger vision of the good life, and upon the religious or philosophical assumptions that give rise to and inform those visions? It is a large question. But the short answer, it seems, is that we cannot.”
Steven D. Smith, Disenchantment, at 105. The Bostic Court’s opinion is replete with moral assertions made as statements of fact:

“[S]ame-sex couples [arguably] want access to marriage so that they can take advantage of its hallmarks, including faithfulness and permanence, and that allowing loving, committed same-sex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage.”
760 F.3d at 381.

“[T]he Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry.”
(Footnote cont’d.) Id.

“[B]y preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm the children of same-sex couples by stigmatizing their families....”

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Id. at 383. Regardless of whether one agrees or disagrees with these assertions, the fact remains that they represent the imposition of the Bostic (and Searcy I ) Court’s moral views upon the State under the guise of legal reasoning. It is not reasoning of “a” plus “b” equals “c”; it is the declaration of social policy through judicial fiat under the guise of constitutional law.

35

“Human beings are created through the conjugation of one man and one woman. The percentage of human beings

conceived through non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex

couples may typically participate together, is not an alternative means of creating children, but rather a social

backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional

procreation between men and women. The institution developed in our society, its predecessor societies, and by

nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man,

a woman, and their offspring, is civil marriage between one man and one woman.”

Sevcik v. Sandoval, 911 F.Supp.2d 996, 1015 (D.Nev.2012).

36 The DeBoer Court noted:

“ Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)?”

DeBoer, 772 F.3d at 407.

37 One commentator characterizes the Court’s approach in these cases as amounting to name-calling on a scholarly level: “Typically, judicial decisions invalidating challenged laws ultimately boil down to peremptory assertions by judges that the law in question has no ‘rational basis’ or is the product of prejudice or ‘animus.’ Thus, citing ‘a substantial number of Supreme Court decisions, involving a range of legal subjects, that condemn public enactments as being expressions of prejudice or irrationality or invidiousness,’ Robert Nagel shows how ‘to a remarkable extent, our courts have become places where the name-calling and exaggeration that mark the lower depths of our political debate are simply given more acceptable, authoritative form.’ ” Steven D. Smith, The Disenchantment of Secular Discourse, 9 (2010) (quoting Robert F. Nagel, Name–Calling and the Clear Error Rule, 88 Northwestern Univ. L.Rev. 193, 199 (1993)).

38 This is what one law professor has deftly labeled “ ‘The Not–Nice School of Constitutional Law,’ ” by which he meant that “the Constitution is taken simply to prohibit any state or federal action that is not nice. Whatever the text may actually provide, this school transforms it into an engine of political wish-fulfillment. What we don’t like in government, the Constitution outlaws.” Craig A. Stern, Things Not Nice: An Essay on Civil Government, 8 Regent U.L.Rev. 1, 2
(1997). See also Robicheaux v. Caldwell, 2 F.Supp.3d 910, 925 (E.D. La. 2014) (“The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of
Justice Scalia in a different context in Bond v. United States, ––– U.S. ––––, ––––, 134 S.Ct. 2077, 2094, 189 L.Ed.2d 1 (2014) (concurring opinion), appear to have assumed the mantle of a legislative body.”).

39 As already noted, the Supreme Court’s substantive-due-process cases require “a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 720–21 (quoting Reno, 507 U.S. at 302).

40 The Lawrence Court stated that “this Court’s obligation is to define the liberty of all, not to mandate its own moral

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code.” Lawrence, 539 U.S. at 559. Interestingly, in her special writing in Lawrence, Justice O’Connor stated: “Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring in the judgment)(emphasis added).
41 The Windsor Court also stated that DOMA “places same-sex couples in an unstable position of being in a second-tier marriage.” – –– U.S. at ––––, 133 S.Ct. at 2694. Justice Scalia responded:

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
– –– U.S. at ––––, 133 S.Ct. at 2709 (Scalia, J., dissenting, joined by Thomas, J.).
42 Several courts have inveighed that people’s moral or religious views of marriage can have nothing to do with the
legality of the institution. See, e.g., Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir.2014) (“To be the basis of legal or moral concern ... the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual.... Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would
take cognizance of.”); Varnum v. Brien, 763 N.W.2d 862, 905 (Iowa 2009) (“State government can have no religious views, either directly or indirectly, expressed through its legislation.... As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of
individuals.”); Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 251, 957 A.2d 407, 475 (2008) (“Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex
marriage.”); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 312, 798 N.E.2d 941, 948 (2003) (“Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us.”).
This divorce of moral and religious ideas from legal debate is now common:

“In [the classical] view, the function of moral reasoning is to determine what actions, or what kind of life, conform to a normative order inherent in nature itself.... A good deal of thinking about suicide, and about moral questions generally, still operates on some such assumption. In much public discourse, however, and especially in academic and legal contexts, explicit appeals to normative dimensions in nature are typically deemed inadmissible. Moral reasoning is supposed to operate without reliance on religious or metaphysical premises.”

Smith, Disenchantment, at 60.
43 “The secular philosophical tradition speaks of inalienable rights, inalienable human dignity and of persons as ends in themselves. These are, I believe, ways of whistling in the dark, ways of trying to make secure to reason what reason

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cannot finally underwrite.” Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice 5 (Routledge 2000) (1998).

44

“[T]here is no apparent reason why anyone should be persuaded [by intuitions]. After all, what credentials can these

intuitions claim? Whether intuitions are reliable is, of course, always a question, but in this case the problem goes

deeper: it is not at all clear exactly what the intuitions are even about. Suppose I do have a ‘moral’ intuition (whatever

that is) that, say, polygamous relationships are ‘wrong’ (whatever that means). So what? I may also harbor an

obsessive fear of traveling on airplanes, or an abiding premonition that something horrible will happen if I leave the

house on Friday the thirteenth, or a sense of profound disgust when I look down at my plate and see that the peas

have gotten mixed with the potatoes. Unless these feelings, intimations, or intuitions are grounded in something

rational and objectively real, the proper response in each case, it seems, would be therapeutic in nature; it would be

a response calculated to help me and anyone else subject to such debilitating feels and intuitions ‘Get over it!’

“Conversely, insofar as contemporary deontological thinkers forego therapeutic response and instead treat such intuitions with utmost respect, it is hard to resist the suspicion that they are acting on lingering assumptions—their own, possibly, or perhaps those of the people whose intuitions provide them with their material—about an intrinsic normative order.”

Smith, Disenchantment, at 66 (footnotes omitted).

45

“Acceptance of the broad description requires rejection of two salient aspects of the narrow description of marriage.

First, it requires rejecting the notion that marriage is no more than what the narrow model describes. Although

genderless marriage proponents rarely, if ever, expressly state that notion of ‘no more than,’ the notion is always

implicit in their arguments.103 Second, the broad description also requires rejecting the idea that children are not ‘the

sine qua non of civil marriage’ and that ‘marriage and children are not really connected.’ The broad description

portrays marriage as primarily a child-protective and child-centered institution, with most of the institution’s social

goods pertaining to the quality of child-rearing. Conversely, the narrow model describes an adult-centered

‘partnership entered into for its own sake, which lasts only as long as both partners are satisfied with the rewards

(mostly intimacy and love) that they get from it.’

_______

“103 ... This phenomenon merits close examination for two reasons. First, the notion itself goes to the heart of the veracity of the narrow and broad descriptions; if the ‘no more than’ notion is factually accurate, it must follow that what the broad description depicts beyond the narrow description’s scope is factually false. Conversely, if the ‘no more than’ notion is erroneous as a matter of fact, that error would be established by the validation of the broad description’s additional depictions. Second, if—as demonstrated elsewhere—the ‘no more than’ notion is always or nearly always implicit and therefore not expressly stated and defended, that aspect is also important. Id. It is important because it constitutes probative evidence about how defensible the ‘no more than’ notion is.”

Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol’y 313, 337–38 (2008) (most footnotes omitted; emphasis omitted).

46 According to the National Conference of State Legislatures, only 11 states have accepted same-sex marriage as a result of choices made by the people or their elected representatives. The 26 other states that, to any extent, now have same-sex marriage do so because it has been imposed on them by court order (21 of these by federal courts). See http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx# 1 (last visited March 2, 2015; a copy of the Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court).

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**

Note from the reporter of decisions: On March 12, 2015, the Alabama Supreme Court issued an order stating, in part,

“[h]aving received no meritorious showing by any of the additional respondents as to why he or she should not be

bound in the same manner as the named respondents and Judge Davis, all respondents continue to be bound by the

order of this Court.”

47 The jurisdiction of probate courts is limited to matters provided by statute. AltaPointe Health Sys., Inc. v. Davis, 90 So.3d 139, 154 (Ala.2012).

48 See Alabama Power Co. v. Citizens of State, 740 So.2d 371, 381 (Ala.1999) (defining “judicial power” vested by the Constitution as “the special competence to decide discrete cases and controversies involving particular parties and specific facts”).

49 Probate judges are entrusted with performing numerous nonjudicial tasks, such as maintaining corporate records, Ala.Code 1975, § 10A–1–4.02; issuing driver’s licenses, Ala.Code 1975, § 32–6–4; and, in some counties, serving as the chairperson of the county commission, Ala.Code 1975, § 11–3–1(c). I submit that this Court would not, pursuant to its original jurisdiction, attempt to review a probate judge’s performance of any of these tasks.

50 Albritton discusses the predecessor statute to what is now § 12–2–7(3).

51 I am not stating that a probate judge’s decision to issue a marriage license can never be challenged in the Alabama Supreme Court. I am stating that the case must first be filed in circuit court and then appealed to this Court, where our decision would then have statewide application.

52 See also Ala.Code 1975, § 36–15–21 (“All litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General.”).

53 This Court has held that standing must exist at the commencement of the litigation and cannot be cured by

subsequently adding to the case a party that has the requisite standing.

Cadle Co. v. Shabani, 4 So.3d 460,

462–63 (Ala.2008). Therefore, this Court’s recognition and alignment of additional petitioners after the case was

commenced cannot cure the standing problem.

54 I have argued in the past that Lujan does not apply in Alabama in certain circumstances; this Court has not agreed with me. See McDaniel v. Ezell, 177 So.3d 454 (Ala.2015) (Shaw, J., dissenting), and Ex parte Alabama Educ. Television Comm’n, 151 So.3d 283 (Ala.2013) (Shaw, J., dissenting). Nevertheless, even I agree that Lujan applies in a case such as this: “I believe that in ... general challenges to government action, the Lujan analysis is helpful.” Ex parte Alabama Educ. Television, 151 So.3d at 294 n. 11 (Shaw, J., dissenting).

55 That Code section, we have held, does not apply to mandamus petitions governed by the Alabama Rules of Appellate Procedure. See Ex parte Johnson, 485 So.2d 1098 (Ala.1986). The plain language of the Code section does not contain such a restriction. I question whether Ex parte Johnson excuses the filing of an unverified petition when this Court’s original, and not appellate, jurisdiction is invoked, but I see no need to belabor that issue at this point.

1

The decision of the federal district court in Strawser was premised on its earlier decision in Searcy v. Strange, 81

F.Supp.3d 1285 (S.D.Ala.2015).

2

A “corrected” copy of Judge Davis’s response has since been filed with this Court.

3

The latter task is to read the Strawser order and to consider the import, if any, of that order as a decision by a court in a

coordinate judicial system. The JIC is a tribunal commissioned solely for the investigation and prosecution of

“complaints” against judges regarding violation of the Canons of Judicial Ethics and the physical and mental ability of

judges to perform their duties. Ala. Const.1901, § 156. It is not a court of law, and it has no authority—and no role to

play—in the performance by this Court of its constitutional duties as a court of law to decide the cases brought before

it.

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4

As we noted in Part II.C., “ ‘ “[a] decision of a federal district court judge is not binding precedent in either a different

judicial district, the same judicial district, or even upon the same judge in a different case,” ’ ” 200 So.3d at 528 (quoting

Camreta v. Greene, 563 U.S. 692, 709 n. 7, 131 S.Ct. 2020, 2033 n. 7, 179 L.Ed.2d 1118 (2011), quoting in turn 18 J. Moore et al., Moore’s Federal Practice § 134.02[1][d], p. 134–26 (3d ed.2011)), much less upon a defendant sued by new plaintiffs in a different case. The principle quoted above from the United States Supreme Court decision in Camreta was manifestly reflected in orders entered on this date by the United States District Court for the Middle District of Alabama, in which that court chose to stay its consideration of a case similar to Strawser and stated that “[t]his court is not bound by Searcy.” Hard v. Bentley (Case No. 2:13–cv–00922–WKW; March 10, 2015) (M.D.Ala.).

5

In Brenner v. Scott (No. 4:14cvl07, Jan. 1, 2015) (N.D.Fla.), a case similar in many respects to the present one, the

court explained that “[t]he Clerk has acknowledged that the preliminary injunction requires her to issue a marriage

license to the two unmarried plaintiffs,” but that, in “the absence of any request by any other plaintiff for a license,”

“[t]he preliminary injunction now in effect does not require the Clerk to issue licenses to other applicants.” See also

Vikram

David

Amar,

Justia–Verdict,

February

13,

2015;

https://verdict.justia.com/2015/02/13/just-lawless-alabama-state-court-judges-refusing-issue-sex-marriage-licenses

(explaining that generally a federal district court can enjoin a defendant only with respect to the defendant’s treatment

of plaintiffs actually before the court and that the remedial limitation on federal district courts is defined by the identity of

the plaintiffs, not just the identity of the defendants) (last visited March 10, 2015; a copy of the Web page containing

this information is available in the case file of the clerk of the Alabama Supreme Court).

1

By contrast, Supreme Court Justice Ruth Bader Ginsburg presided at a same-sex wedding while Obergefell was

pending before the Supreme Court, thus demonstrating her view of the merits of that very case. Maureen Dowd,

Presiding at Same–Sex Wedding, Ruth Bader Ginsburg Emphasizes the Word “Constitution,” New York Times, May

18, 2015.

2

The docket sheets for Aereo (No. 13–461) and Scientific–Atlanta (No. 06–43) can be found on the Supreme Court

Web site. See http://www.supremecourt.gov. Copies of those docket sheets printed from the Web site are available in

the case file of the clerk of the Alabama Supreme Court.

3

The United States Code, “the official codification of the general and permanent laws of the United States,” includes the

Declaration of Independence in the section entitled “The Organic Laws of the United States of America.” See Black’s

Law Dictionary 1274 (10th ed. 2014) (defining “organic law” as “[t]he body of laws (as in a constitution) that define and

establish a government”).

4

Sir William Blackstone described as an “aristocracy” that form of government in which the sovereign power “is lodged

in a council, composed of select members.” 1 Commentaries *49.

5

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by

the people.” U.S. Const. amend. IX. “The powers not delegated to the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.

6

This warning was quoted virtually verbatim in Justice White’s majority opinion in Bowers v. Hardwick, 478 U.S. 186,

194, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986).

7

In a concurring opinion Justice Shaw states that a judge who “cannot abide by a controlling decision of a higher court”

should resign. 200 So.3d at 618. In support of this assertion, he quotes from an article in which Justice Scalia criticized

Justices on the Supreme Court who let their personal views of the morality of the death penalty override constitutional

and state law to the contrary. Antonin Scalia, God’s Justice and Ours, 2002 First Things 123 (May 2002). In Obergefell,

a majority of five Justices supplanted state marriage laws with no authority whatsoever in the Constitution. Under

Justice Scalia’s logic, the Justices who elevated Obergefell above the Constitution they swore to uphold should

themselves resign, and not state judges who uphold that sacred document.

8

By constitutionalizing attacks on the procreative core of marriage, the Supreme Court has greatly contributed to the

erosion of this institution. See

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (contraception); Roe v. Wade, 410 U.S.

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113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (abortion).

9

The Bible likens marriage to the relationship between Christ and the church. Ephesians 5:22–27. The Obergefell

majority creates an unnatural form of marriage whose participants delight in “vile affections.” Romans 1:26.

10 Justice Black is describing this philosophy, not agreeing with it. “For myself, I must with all deference reject that

philosophy.”

Griswold, 381 U.S. at 522 (Black, J., dissenting).

11 Justice Holmes referred to this tendency of the Court to discover constitutional novelties in the Fourteenth Amendment
as “evoking a constitutional prohibition from the void of ‘due process of law.’ ” Baldwin v. Missouri, 281 U.S. 586, 596, 50 S.Ct. 436, 74 L.Ed. 1056 (1930) (Holmes, J., dissenting).

12 One may reasonably surmise that in the era of fears about a population explosion, the Court felt that its duty to limit the reproduction of the masses superseded any fealty to the text of the Constitution. Eisenstadt represented the Court’s first sustained assault on sexual morality and laid the groundwork for future decisions that were consistent with a policy of reducing population growth, either through abortion (killing the conceived) or homosexuality (promoting nonreproductive sexuality). In a 2009 interview, Justice Ruth Bader Ginsburg stated: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” Emily Bazelon, The Place of Women on the Court, New York Times Magazine (July 7, 2009).

13 “By placing a premium on ‘recent cases’ rather than the language of the Constitution, the Court makes it dangerously simple for future Courts, using the technique of interpretation, to operate as a ‘continuing Constitutional convention.’ ”
Coleman v. Alabama, 399 U.S. 1, 22–23, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (Burger, C.J., dissenting). As two scholars have noted, “[E]stablishing a tradition through reliance on Supreme Court cases is bootstrapping.” Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L.Rev. 1555, 1610 (2004).

14 http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf. (On the date this special writing was released, this information could be found at the preceding Web address.)

15 http://www.nydailynews .com/news/national/tenn–county–clerk–staffresigns–gay–marriage–ruling–article–1.2281567. (On the date this special writing was released, this information could be found at the preceding Web address.)

16 http://www.foxnews.com /opinion/2015/08/11/chaplains-banned-frompreaching-that-homosexuality-is-sin.html. (On the date this special writing was released, this information could be found at the preceding Web address.)

17 Booth was an abolitionist whom federal authorities charged with assisting in the escape of a captured fugitive slave. The Wisconsin Supreme Court affirmed the issuance of a writ of habeas corpus to release Booth from federal custody.

18 One Justice indeed dissented outright and stated: “Marriage is not only for the parties. Its purpose is to provide children with a safe and stable environment in which to grow. It is the epitome of civilization. Its definition cannot be changed by legalisms.” Costanza, 167 So.3d at 624 (Hughes, J., dissenting).

19 James Iredell’s Charge to the Grand Jury, Case of Fries, 9 Fed.Cas. 826, no. 5, 126 (C.C.D.Pa.1799). Iredell served as a Justice of the United States Supreme Court from 1790 to 1799.

20 “Senators and Representatives [of the United States], and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution.” U.S. Const., art. VI, ¶ 3 (emphasis added).

21

See Windsor v. United States, 699 F.3d 169, 188 (2d Cir.2012), aff’d, 570 U.S. ––––, 133 S.Ct. 2675, 186

L.Ed.2d 808 (2013) (noting that “same-sex marriage is unknown to history and tradition”).

22 “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.”

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Genesis 2:24. “Marriage is honourable in all, and the bed undefiled: but whoremongers and adulterers God will judge.” Hebrews 13:4.
23 http://www.huffingtonpost.com/entry/ruth-bader-ginsburgtk_55b97c68e4b0b8499b18536b. (On the date this special writing was released, this information could be found at the preceding Web address.)
24 Justice Shaw’s concurrence reflects his errant judicial philosophy of blind adherence to an unlawful, illegitimate, and unconstitutional decision of the United States Supreme Court. Because Justice Shaw was the only Justice in this case who declined to affirm the validity of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act before the United States Supreme Court decision in Obergefell, and thereafter recommended to this Court that it take no further official action in this case, even after this Court requested further briefing from the parties, he is understandably upset that this Court now proceeds to act.
25 “The Emperor’s New Clothes,” in The Annotated Hans Christian Andersen 3–16 (Maria Tatar ed., 2008).

26 Justice Abe Fortas, for example, according to one of his clerks, viewed legal analysis as a “necessary form of packaging that had to be provided for things he wanted to do.” Laura Kalman, Abe Fortas: A Biography 271 (1990). After revising one memorandum, Fortas returned it to his clerk with the brief order: “Decorate it.” Id. at 271–72.
27 “The United States shall guarantee to every State in this Union a Republican Form of Government....” U.S. Const., art. IV, § 4.
28 Justice Shaw terms my arguments about the scope of federal court decisions “silly” and “nonsensical.” 200 So.3d at 618. His comments demean the office he holds and diminish the dignity of this Court. He fails to distinguish between the scope of a federal court judgment and the precedential effect of a federal court opinion. The first is binding as to the parties; the latter is only precedent for future cases and is legitimately subject to skepticism if it lacks any basis in the Constitution. The doctrine of judicial supremacy, as propounded by Justice Shaw, would remove all moral responsibility from judges, whose sole duty would be to follow the orders of their superiors. Nuremberg has taught the perniciousness of such a doctrine.
29 “Pro tanto brutum fulmen” means “to that extent,” “an empty threat.” Black’s Law Dictionary 234, 1417 (10th ed. 2014).

30 http://www.lc.org/news room/details/statement–of–kentucky–clerk–kimdavis–1. (On the date this special writing was released, this information could be found at the preceding Web address.)

31 President Jackson’s confrontation with the Supreme Court resulted from that court’s holding unconstitutional a Georgia statute that allowed non-Indians to live among Indians only if they got a license to do so and swore an oath of loyalty to
the State of Georgia. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 577–78, 8 L.Ed. 483 (1832). Samuel Worcester, a white northern missionary, was convicted because he refused to do either. The Supreme Court held the Georgia statute unconstitutional, overturned Worcester’s conviction, and ordered Georgia to release him. Georgia refused to do so. Tradition has it that President Jackson declared: “John Marshall has made his decision, now let him enforce it.” Amy Coney Barrett, Symposium Stare Decisis and Nonjudicial Actors, 83 Notre Dame L.Rev. 1147, 1154 (2008). “Jackson was saved from a direct collision with the Court by the fact that he appeared to lack the authority to act. Timing and a procedural quirk had prevented the Supreme Court from dispatching the federal marshal to execute the judgment, and a federal statute authorized the President to intervene only if the marshal failed.” 83 Notre Dame L.Rev. at 1155.

32

Chief Justice Roberts referred to the Obergefell majority three times as “five lawyers,” 576 U.S. at ––––, 135 S.Ct.

at 2612, 2624 (Roberts, C.J., dissenting), instead of Justices, thus caustically pointing out that the five were not acting

in a judicial role.

33 The dissents in Obergefell refer eight times to “unelected” judges.

34 The dissents in Obergefell refer twice to the “unaccountable” judges.

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35 Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819, 12 The Works of Thomas Jefferson 137 (Paul Leicester Ford ed., G.P. Putnam’s Sons, 1905).
36 The historic phrase “a government of laws and not of men” was used by John Adams in the Massachusetts Declaration of Rights, pt. 1, art. 30. The State of Alabama adopted John Adams’s provision almost verbatim in Art. III, § 43, Ala. Const.1901, thus incorporating this phrase into our organic law.
37 Despotism has been defined as “[a]bsolute power; authority unlimited and uncontrolled by men, constitution, or laws, and depending alone on the will of the prince....” 1 N. Webster, An American Dictionary of the English Language 59 (1828) (emphasis added).
38 Tyranny has been defined as “[a]rbitrary or despotic exercise of power; exercise of power over subjects and others with a rigor not authorized by law or justice, or not requisite for the purposes of government.” 2 N. Webster, An American Dictionary of the English Language 99 (1828).
39 Montesquieu was the most frequently cited source in the establishment of the three branches of government. Matthew P. Bergman, Montesquieu’s Theory of Government and the Framing of the American Constitution, 18 Pepp. L.Rev. 1, 24 (1990). “Among the delegates to the Convention, Montesquieu’s writings were taken as ‘political gospel.’ Many such delegates read Montesquieu as preparatory material. Indeed, besides studying Montesquieu himself, Madison translated sections of The Spirit of the Laws for George Washington. Washington’s notes reveal that he also studied Montesquieu in preparation for the Convention.” Id.
40 Matthew J. Franck, “Introduction to the Transaction Edition,” Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays, at xxi n. 46 (Transaction Publishers, 2014) (citing Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L.Rev. 643 (1909)).
41 Franck, supra, at xxi n. 45 (citing Edward S. Corwin, The Supreme Court and Unconstitutional Acts of Congress, 7 Mich. L.Rev. 606 (1906)).
42 Ronald Reagan speech “A Time for Choosing” (also known as “A Rendezvous with Destiny”), October 27, 1964.
43 The Federalist No. 78, at 404 (Alexander Hamilton) (George W. Carey and James McClellan eds., Liberty Fund, 2001).
44 Indeed, state courts often, as here, are the ones left with the task of enforcing whatever is left of state law in the aftermath of a decision such as Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). See Ex parte State of Alabama ex rel. Alabama Policy Inst., 200 So.3d 495, 604 (Ala.2015) (Bolin, J., concurring specially, Part II); Ex parte State of Alabama ex rel. Alabama Policy Inst., 200 So.3d 495, 531 n. 19 and accompanying text (Ala.2015); see also Ex parte Davis, [Ms. 1140456, Feb. 11, 2015] ––– So.3d ––––, –––– (Ala.2015) (Murdock, J., concurring specially).
45 Man can recognize, for example, the presence of oxygen in the atmosphere. He can affirm that oxygen is a good thing, and perhaps even maintain vegetation to encourage its production. But man can not change what oxygen is. Man might declare that henceforth oxygen atoms will have some different number or arrangement of protons, neutrons, and electrons, but that will not make it so. Nature has made oxygen as it is; it has made marriage as it is. As John Finnis put it:

“[L]aw is both secondary or even subordinate to, while regulating, other social institutions which it does not institute, whether they be reasonable and good (like proper forms of marriage and family, or less ambitious kinds of promising, not to mention religious communities and practices), or unreasonable, vicious, and harmful (like prostitution, slavery, or the vendetta). We should not imagine that market institutions or marriages or corporations

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await the emergence of ‘power-conferring’ rules of law. Legal rules are often ratificatory and regulative rather than truly constitutive, whatever their legal form and their role in creating the law’s versions of the social practices and institutions upon which it, so to speak, supervenes.”
John Finnis, Philosophy of Law: Collected Essays: Vol. IV 118 (Oxford Univ. Press 2011).
46 This Court’s decision applied only where probate court judges were not under a federal court injunction. Specifically, this Court noted that the decision did not apply to Judge Don Davis, who was under a federal court order:

“The final procedural issue we consider is whether the federal court’s order prevents this Court from acting with respect to probate judges of this State who, unlike Judge Davis in his ministerial capacity, are not bound by the order of the federal district court in Strawser [v. Strange (Civil Action No. 14–0424–CG–C, Jan. 26, 2015) ].”

200 So.3d at 528 (emphasis added). Although this Court could have purported to order Judge Davis to disregard the federal court injunction, it did not do so.
47 At this time, the issue of how much the taxpayers will have to pay as a result of this litigation is undetermined.
48 For purposes of this Court’s order, no material distinction exists between the “dismissal,” as opposed to the “denial,” of the postjudgment motions and requests. Whether cast as a substantive rebuke on the merits or as the rejection of a request to further consider a concluded case, this Court’s order expresses a clear refusal to enter an order defying Obergefell. Furthermore, the issuance of a certificate of judgment, which is also dictated by the order issued today, is a routine administrative task that is normally accomplished automatically by the clerk of the Court and is not voted upon by the Justices. A certificate of judgment in a mandamus matter is generally issued after the application for rehearing has been overruled, which occurred on March 20, 2015. However, because this case was not an appeal, the usual procedures for issuing a certificate of judgment under the Alabama Rules of Appellate Procedure, Rule 41, were not utilized. It is not clear to me that this Court has a procedure for issuing a certificate of judgment in this type of case—an original petition for mandamus relief—or that, because this Court was sitting as a trial court, one is even needed. The issuance of a certificate of judgment is a rote entry. Further, as explained below, it does not, and cannot, mean that the parties in this case may defy Obergefell or any federal court injunction against them.
49 Chief Justice Moore’s order stated that in API this Court “issued a lengthy opinion upholding the constitutionality of
Article I, Section 36.03(b), Ala. Const.1901 (‘the Sanctity of Marriage Amendment’), and Section 30–1–19(b), Ala.Code 1975 (‘the Marriage Protection Act’).” He further noted that in API this Court stated that “ ‘Alabama probate judges have a ministerial duty not to issue any marriage license contrary to [the Sanctity of Marriage Amendment or
the Marriage Protection Act].’ ” In Strawser, the federal court declared § 36.03 and § 30–1–19 unconstitutional, declared that the probate court judges were enjoined from enforcing them, and declared that the probate court judges could not deny a license “because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by ... any injunction issued by the Alabama Supreme Court [i.e., API,] pertaining to same-sex marriage.” Strawser, 105 F.Supp.3d at 1330. The January 6 order “ordered and directed” that “the existing orders of the Alabama Supreme Court [i.e., API,] that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.” Ordering and directing that Alabama probate court judges had a “duty not to issue any marriage license contrary to the Sanctity of Marriage Amendment or the Marriage Protection Act” is contrary to the federal district court injunction, which said that the probate court judges could not enforce those provisions. The order did more than address the hypothetical impact of Obergefell on API; it ordered and directed that the probate court judges continue to follow API, a course of action that would be contrary to the federal court injunction. The failure of the order to mention the federal court injunction did not negate that reality.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015) 2015 WL 892752
50 Although the Chief Justice of the Supreme Court has certain authority to perform “administrative tasks,” Ala. Const.1901, art. VI, § 149, it is this Court that possesses the authority to “govern[ ] the administration of all courts.” Ala. Const.1901, art. VI, § 150. The Chief Justice does not have the authority, on his or her own, to interpret the substantive legal effect of a decision of this Court and then to seek to enforce that decision against the parties in that action; in this case, it is this Court that possesses the “authority to interpret, clarify, and enforce its own final judgments.” State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000).
51 I stated:
“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court’s ruling ..., which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”

52 President Abraham Lincoln may have believed that he, as the head of a branch of the federal government, had the right to disavow a decision of the head of another coordinate branch of the federal government. President Lincoln was not a lower court judge. Further, I would be hesitant to cite President Lincoln as an authority for the idea that the states can rebel against the federal government.
53 To the extent it is suggested that various federal courts have held that Obergefell applied to only certain states, I disagree. In Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir.2015), Rosenbrahn v. Daugaard, 799 F.3d 918 (8th Cir.2015), Jernigan v. Crane, 796 F.3d 976 (8th Cir.2015), and Marie v. Mosier, 122 F.Supp.3d 1085 (D.Kan.2015), the courts stated that Obergefell explicitly applied to the laws of other states only to note that it did not moot the litigation in those underlying cases; nevertheless, those courts specifically held that Obergefell rendered unconstitutional the same-sex government-marriage-license prohibitions they were addressing. To say that these cases somehow indicate that Obergefell does not impact Alabama has no basis.
54 Although Alabama’s probate judges are not parties in Obergefell, as noted above, they are parties to a lawsuit pending in a federal court that will enforce Obergefell. I find the suggestion that Obergefell somehow does not impact them strange.
55 Recently, the Supreme Court issued a decision with no dissents in James v. City of Boise, ––– U.S. ––––, 136 S.Ct. 685, 193 L.Ed.2d 694 (2016), stating: “As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, ‘the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.’ Martin v. Hunter’s Lessee, 1 Wheat. 304, 348, 4 L.Ed. 97 (1816). “The Idaho Supreme Court, like any other state or federal court, is bound by this Court’s interpretation of federal law.” (Emphasis added.)
56 McDonald was not a decision originating from Alabama. I could not ignore it based on the argument that it did not apply to Alabama parties or that I remained ignorant of how the Supreme Court would rule on the issue.

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Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (2015)
2015 WL 892752
57 To this day, I have expressed no opinion with respect to Obergefell or the legality of same-sex government-marriage licenses because, given my previously expressed views on this Court’s lack of jurisdiction in this case, the law will not let me. I have made no public comment on a proceeding pending before this Court, which is barred by Canon 3.A.(6), Alabama Canons of Judicial Ethics (“A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control.”), and the Commentary to Canon 2, Alabama Canons of Judicial Ethics (“Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.... He must, therefore, accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”). Further, I have not conducted myself in a manner that calls into question my integrity and impartiality, and I have avoided conduct prejudicial to the administration of justice that would bring the judicial office into disrepute, which are barred by Canon 2.
58 See 28 U.S.C. §§ 351–364.

End of Document

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 Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 1 of 34
CLOSED2016,R16MLD
U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:14−cv−00424−CG−C

Strawser v. Strange Assigned to: Senior Judge Callie V. S. Granade Referred to: Magistrate Judge William E. Cassady Case in other court: 11th Cir. USCA, 15−10313−CC
11th Cir. USCA, 15−90014 Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 09/11/2014 Date Terminated: 06/07/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

James N. Strawser

represented by Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 365−1320 Email: CStoll@nclrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 (334) 956−8200 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann Boyd, Fernambucq, Dunn &Fann, P.C. 3500 Blue Lake Drive, Suite 220 Birmingham, AL 35243 (205) 930−9000 Email: hfann@bfattorneys.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 30106−0179 334−420−1741 Fax: 334−269−5666 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 (334) 956−8200 Email: scott.mccoy@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter National Center for Lesbian Rights 1100 H Street, NW, Suite 540

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 2 of 34

Washington, DC 20005 (202) 734−3545 Email: SMinter@nclrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan 1901 L Street N.W., Suite 400 Washington, DC 20036 202−466−3234 Email: khan@au.org TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper Americans United for Separation of Church and State 1901 L Street, NW Suite 400 Washington, DC 20036 202−466−3234 Email: lipper@au.org TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee Americans United for Separation of Church and State 1901 L Street, NW Suite 400 Washington, DC 20036 202−466−3234 Fax: 202−466−3353 Email: katskee@au.org PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert 1901 L St. NW, Suite 400 Washington, DC 20036 202−466−3234 Email: dietert@au.org TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff John E. Humphrey

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 3 of 34

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff Robert Povilat

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 4 of 34

ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff Anna Lisa Carmichael

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Ayesha Khan

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 5 of 34

(See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff Kristy Simmons

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 6 of 34

Plaintiff Milton Persinger

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE
represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED
Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 7 of 34

PRO HAC VICE

Plaintiff Meredith Miller

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff Marshay Safford

represented by Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 8 of 34

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Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ayesha Khan (See above for address) TERMINATED: 07/16/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 PRO HAC VICE

Plaintiff Albert Halloway Pigg III

represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 9 of 34

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gary Wayne Wright II

represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 10 of 34

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brandon Mabrey

represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 11 of 34

Plaintiff Keith Ingram

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE
Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED
Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon P. Minter (See above for address) ATTORNEY TO BE NOTICED
represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE
Gregory M. Lipper (See above for address)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 12 of 34

TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kristie Ogle

represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 13 of 34

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jennifer Ogle

represented by Ayesha Khan (See above for address) TERMINATED: 07/16/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Rene Fann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. McCoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Zachary Alan Dietert (See above for address) TERMINATED: 09/09/2015 LEAD ATTORNEY PRO HAC VICE

Gregory M. Lipper (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

Richard B. Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
State of Alabama TERMINATED: 12/11/2014

represented by James W. Davis Office of the Attorney General

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 14 of 34

501 Washington Ave. Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elizabeth Howell 501 Washington Avenue Montgomery, AL 36104 334−242−7432 Email: lhowell@ago.state.al.us ATTORNEY TO BE NOTICED

Defendant
Luther Strange in his official capacity as Attorney General of the State of Alabama

represented by James W. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew L. Brasher 501 Washington Ave. Montgomery, AL 36103 334−242−7300 Email: abrasher@ago.state.al.us ATTORNEY TO BE NOTICED

Defendant
Don Davis in his official capacity as Probate Judge of Mobile County, Alabama

represented by Joseph Michael Druhan , Jr. Satterwhite, Druhan &Tyler, L.L.C. 1325 Dauphin Street Mobile, AL 36601 (251) 432−8120 Email: mike@satterwhitelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark S. Boardman Boardman, Carr, Bennett, Watkins, Hill &Gamble, P.C. 400 Boardman Dr. Chelsea, AL 35043−8211 (205)678−8000 Fax: 2056780000 Email: mboardman@boardmancarr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clay Richard Carr Boardman, Carr &Hutcheson, P.C. 400 Boardman Dr. Chelsea, AL 35043−8211 (205)678−8000 Fax: 205−678−0000 Email: ccarr@boardmancarr.com ATTORNEY TO BE NOTICED

Harry V. Satterwhite

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 15 of 34

Satterwhite &Tyler, LLC 1325 Dauphin Street Mobile, AL 36604 (251) 432−8120 Fax: (251) 405−0147 Email: harry@satterwhitelaw.com ATTORNEY TO BE NOTICED

Lee L. Hale Hale and Hughes 501 Church Street Mobile, AL 36602 251−433−3671 ext 2 Fax: 251−432−1982 Email: lee.hale@comcast.net ATTORNEY TO BE NOTICED

Teresa Bearden Petelos 400 Boardman Dr. Chelsea, AL 35043 205−678−8000 Email: tpetelos@boardmancarr.com ATTORNEY TO BE NOTICED

Defendant
Tim Russell in his official capacity as Probate Judge of Baldwin County, Alabama

represented by Jamie Helen Kidd Webb &Eley, P.C. 7475 Halcyon Pointe Drive Post Office Box 240909 Montgomery, AL 36124 334−262−1850 Fax: 334−262−1889 Email: jkidd@webbeley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Whetstone 17090 Lagoon Winds Drive Gulf Shores, AL 36542 251−500−1337 Email: davidwhetstone1@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kendrick E. Webb Webb &Eley, P. C. P.O. Box 240909 7475 Halcyon Pointe Drive Montgomery, AL 36124 3342621850 Fax: 3342621889 Email: kwebb@webbeley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Movant
Alan King Jefferson County Probate Judge Jefferson County Courthouse, Room 120 716 Richard Arrington Blvd North Birmingham, AL 35203

represented by French Andrew McMillan Sewell Sewell McMillan 1841 Second Avenue South, Suite 214 Jasper, AL 35501 205−544−2350

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 16 of 34

205−325−5203 TERMINATED: 02/20/2015

Fax: 205−544−2345 Email: french@sewellmcmillan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey M. Sewell Sewell Sewell McMillan, LLC 1841 Second Avenue N., Suite 214 Jasper, AL 35501 (205) 544−2350 Email: jeff@sewellmcmillan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/11/2014 09/11/2014 09/15/2014
09/18/2014 09/23/2014
09/26/2014 10/06/2014 10/17/2014 10/20/2014 10/20/2014
10/20/2014 10/21/2014
11/13/2014

# Docket Text
1 COMPLAINT against State of Alabama filed by James N. Strawser, John E. Humphrey. (tot) (Entered: 09/12/2014)
2 MOTION for Leave to Proceed in forma pauperis by James N. Strawser. (Referred to Judge William E. Cassady on 9/12/14). (tot) (Entered: 09/12/2014)
3 Order, Plf Humphrey is to file his own motion to proceed without prepayment of fees &costs on or before 9/29/2014, at which time both motions will be ruled upon. Signed by Magistrate Judge William E. Cassady on 9/15/2014. (copies mailed to Plfs on 9/15/14 w/motion form to Plf Humphrey) (tot) (Entered: 09/15/2014)
4 MOTION for Leave to Proceed in forma pauperis by John E. Humphrey. (Referred to Judge William E. Cassady on 9/18/14). (tot) (Entered: 09/18/2014)
5 ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis, 4 Motion for Leave to Proceed in forma pauperis as set out. The Clerk is directed to served dft as set out. Signed by Magistrate Judge William E. Cassady on 9/23/2014. (copies mailed to Plfs on 9/23/14) (tot) (Entered: 09/23/2014)
6 Summons Issued as to State of Alabama. (Attachment: # 1 Cert. Mail Receipt) (tot) (Entered: 09/26/2014)
7 Return of Service Executed, State of Alabama served on 9/29/2014, answer due 10/20/2014. (tot) (Entered: 10/07/2014)
8 MOTION to Dismiss for Lack of Jurisdiction by State of Alabama. (Howell, Laura) (Entered: 10/17/2014)
MOTIONS REFERRED: 8 MOTION to Dismiss for Lack of Jurisdiction referred to Judge William E. Cassady. (tot) (Entered: 10/20/2014)
9 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 12/4/2014. Signed by Magistrate Judge William E. Cassady on 10/20/2014. (Attachment: # 1 Consent to Jurisdiction by a U. S. Magistrate Judge) (copies mailed to Plfs on 10/20/14) (tot) Modified on 10/20/2014 (tot). (Entered: 10/20/2014)
10 NOTICE of Appearance by James W. Davis on behalf of State of Alabama (Davis, James) (Entered: 10/20/2014)
11 Order, re: 8 MOTION to Dismiss for Lack of Jurisdiction filed by State of Alabama. Motion will be taken under submission on 11/21/2014. Plaintiffs' response or motion to amend as set out in order due by 11/13/2014, and defendant's reply due by 11/20/2014. Signed by Magistrate Judge William E. Cassady on 10/21/2014. (copies to pltfs) (mab) (Entered: 10/21/2014)
12 MOTION to Amend 1 Complaint &Change Defendant by John E. Humphrey, James N. Strawser. (Referred to J/Granade on 11/17/14) (tot) (Entered: 11/17/2014)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 17 of 34

11/19/2014 11/19/2014 11/20/2014 11/20/2014
12/01/2014 12/04/2014 12/04/2014 12/04/2014 12/04/2014 12/04/2014 12/08/2014 12/08/2014
12/08/2014

MOTIONS REFERRED: 12 MOTION to Amend 1 Complaint and Change Defendant Referred to Judge William E. Cassady. (mab) (Entered: 11/19/2014)
13 REPLY in Support of 8 MOTION to Dismiss &RESPONSE to 12 MOTION to Amend Complaint filed by State of Alabama. (Davis, James) Modified on 11/20/2014 (tot). (Entered: 11/19/2014)
REFERRAL OF 13 Reply in Support of Motion to Dismiss &Response to Motion to Amend to Judge Cassady. (tot) (Entered: 11/20/2014)
14 REPORT AND RECOMMENDATION recommending that Plf's 12 MOTION to Amend 1 Complaint &Change Defendant be GRANTED as set out. The substitution of Luther Strange, in his official capacity as Attorney General of the State of Alabama, will MOOT the previously−filed 8 MOTION to Dismiss. Objections to RRdue by 12/10/2014. Signed by Magistrate Judge William E. Cassady on 11/20/2014. (copies mailed to Plfs on 11/20/14) (tot) (Entered: 11/20/2014)
15 MOTION for Immediate Preliminary and Permanent Injunctive Relief by John E. Humphrey, James N. Strawser. (Referred to J/Granade on 12/1/14) (tot) (Entered: 12/01/2014)
16 Defendant's Report of Planning Meeting and RESPONSE to Court's 9 Preliminary Scheduling Order, by State of Alabama filed by State of Alabama. (Attachments: # 1 Exhibit A − Defendant's Report of Parties Planning Meeting) (Davis, James) (Entered: 12/04/2014)
17 RESPONSE in Opposition to 15 Plaintiffs Motion for Immediate Preliminary and Permanent Injunctive Relief, filed by State of Alabama. (Davis, James) (Entered: 12/04/2014)
18 Order, setting hearing for December 18, 2014 at 9:00 a.m., in Courtroom 2B, United States Courthouse, Mobile, Alabama re: Plaintiffs' 15 motion for immediate preliminary and permanent injunction. Plaintiff shall be required to prove the standards as set forth in order at the hearing. Signed by Judge Callie V. S. Granade on 12/4/2014. (copies to pltfs) (mab) (Entered: 12/04/2014)
REFERRAL OF 16 Defendant's Report of Planning Meeting and Response to Court's 9 Preliminary Scheduling Order to Judge Cassady. (mab) (Entered: 12/04/2014)
REFERRAL OF 17 Defendant's Response in Opposition to Plaintiff's 15 Motion for Immediate Preliminary and Permanent Injunctive Relief to Judge Granade. (mab) (Entered: 12/04/2014)
19 Order, Scheduling Conference set for 12/18/2014 immediately following the conclusion of hrg before Judge Granade as set out. It is anticipated that the parties will arrive in the Courtroom 3A sometime after 10:00 am on 12/18/14. Signed by Magistrate Judge William E. Cassady on 12/8/2014. (copy mailed to Plfs on 12/8/14) (tot) (Entered: 12/08/2014)
20 NOTICE by State of Alabama re 16 Response to Order, (Defendant's Notice of Filing of Materials in Reference to Doc. 16, Defendant's Report of Planning Meeting and Response to the Court's Preliminary Scheduling Order) (Attachments: # 1 Exhibit 1 − Nov. 19, 2014 correspondence from Defendant's Counsel to Plaintiffs, # 2 Exhibit 2 − Nov. 25, 2014 correspondence from Defendant's Counsel to Plaintiffs, # 3 Exhibit 3 − Dec. 1, 2014 correspondence from Defendant's Counsel to Plaintiffs, # 4 Exhibit 4 − Dec. 1, 2014 correspondence from Defendant's Counsel to Plaintiffs, # 5 Exhibit 5 − Dec. 3, 2014 correspondence from Defendant's Counsel to Plaintiffs) (Davis, James) (Entered: 12/08/2014)
21 NOTICE by State of Alabama re 17 Response in Opposition to Motion (Defendant's Notice of Filing of Materials in Support of Doc. 17, Defendant's Opposition to the Plaintiffs' Motion for Preliminary Injunction) (Attachments: # 1 Exhibit 1 − Doc. 47 − Defendant's Motion for Summary Judgment, # 2 Exhibit 2 − Doc. 48, Defendant's Brief in Support of Summary Judgment, # 3 Exhibit 3 − Doc. 48−1, Ex. A to Defendant's Brief (Baker v. nelson Jurisdictional Statement), # 4 Exhibit 4 − Doc. 48−2, Ex. B to Defendant's Brief (Article), # 5 Exhibit 5 − Doc.

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 18 of 34

12/09/2014 12/09/2014 12/11/2014
12/15/2014 12/16/2014 12/16/2014 12/16/2014 12/16/2014 12/16/2014
12/18/2014 12/18/2014 12/18/2014 12/18/2014 01/26/2015

49, Ex. A to Def. Motion for Summary Judgment (Girgis Declaration), # 6 Exhibit 6 − Doc. 49−1, Ex. B to Defendant's Motion for Summary Judgment (AG Opinion), # 7 Exhibit 7 − Doc. 49−2, Ex. C to Defendant's Motion for Summary Judgment (Election results), # 8 Exhibit 8 − Doc. 52, Defendant's Sur−reply in support of Summary Judgment, # 9 Exhibit 9 − Doc. 52−1, Ex. A to Def. Sur−reply in Support of Summary Judgment (Marks Declaration)) (Davis, James) (Entered: 12/08/2014)
REFERRAL OF 20 Defendant's Notice of Filing of Materials in Reference to Doc. 16 , Defendant's Report of Planning Meeting and Response to the Court's 9 Preliminary Scheduling Order to Judge Cassady. (mab) (Entered: 12/09/2014)
REFERRAL OF 21 Defendant's Notice of Filing of Materials in Support of Doc. 17 , Defendant's Opposition to the Plaintiffs' 15 Motion for Preliminary Injunction to Judge Granade. (mab) (Entered: 12/09/2014)
22 ORDER ADOPTING 14 REPORT AND RECOMMENDATION. Plf's 12 MOTION to Amend 1 Complaint is GRANTED as set out. 8 MOTION to Dismiss is MOOT as set out. Luther Strange, in his official capacity as Attorney General of the State of Alabama, is substituted in place of the State of Alabama as the party dft. Dft Luther Strange is to file his answer NLT 12/18/2014. Signed by Judge Callie V. S. Granade on 12/11/2014. (copy mailed to Plfs on 12/11/14) (tot) (Entered: 12/11/2014)
23 Brief in Support of 15 MOTION for Immediate Preliminary &Permanent Injunctive Relief filed by John E. Humphrey, James N. Strawser. (Referred to J/Granade on 12/15/14) (tot) (Entered: 12/15/2014)
24 MOTION to Dismiss Amended Complaint by Luther Strange. (Howell, Laura) (Entered: 12/16/2014)
25 ANSWER to 1 Complaint by Luther Strange. (Davis, James) (Entered: 12/16/2014)
26 Notice of Adoption by Luther Strange re: 20 Notice (Other),, 21 Notice (Other),,,, 16 Response to Order, 17 Response in Opposition to Motion (adoption of pleadings filed by the former Defendant, the State of Alabama) (Davis, James) (Entered: 12/16/2014)
REFERRAL OF 24 MOTION to Dismiss Amended Complaint and 26 Notice of Adoption of Pleadings Filed by the Former Defendant, The State of Alabama re: 16 Defendant's Report of Planning Meeting and Response to the Court's Preliminary Scheduling Order to Judge William E. Cassady. (mab) (Entered: 12/16/2014)
REFERRAL OF 26 Notice of Adoption of Pleadings Filed by the Former Defendant, The State of Alabama re: 17 Defendant's Response in Opposition to Plantiffs' Motion for Immediate Preliminary and Injunctive Relief, and Defendant's Notice of Filing of materials in support (Docs. 20 &21 ) to Judge Granade. (mab) (Entered: 12/16/2014)
Minute Entry for proceedings held before Judge Callie V. S. Granade: Preliminary Injunction Hearing held on 12/18/2014. Court Reporter Roy Isbell. (tot) (Entered: 12/18/2014)
Minute Entry for proceedings held before Magistrate Judge William E. Cassady: Scheduling Conference held on 12/18/2014. FTR Digital Audio Recording. (eec) (Entered: 12/18/2014)
27 RESTRICTED AUDIO FILE (7.5 MB) regarding Scheduling Conference held on 12/18/2014 at 10:00 a.m. before Magistrate Judge William E. Cassady. 15 mins. (eec) (Entered: 12/18/2014)
28 ORDER, STAYING case until January 20,2015, while the pro se plaintiffs attempt to retain counsel. Rule 26 Meeting Report due by 2/3/2015. Plaintiffs' response to 24 motion to dismiss due by 2/3/2015. Signed by Magistrate Judge William E. Cassady on 12/18/2014. (copies to pltfs) (mab) (Entered: 12/18/2014)
29 ORDER re: Plfs' 15 Motion for Preliminary Injunction &Permanent Injunction. Court ORDERS that the Alabama Attny Gen is prohibited from enforcing the

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 19 of 34

01/26/2015 01/26/2015 01/26/2015 01/27/2015 01/27/2015 01/28/2015 01/28/2015 01/28/2015 01/31/2015 01/31/2015
02/03/2015 02/03/2015

Alabama laws which prohibit same−sex marriage as set out. Court STAYS execution of this injunction for 14 days to allow Dft to seek a further stay pending appeal in the Eleventh Circuit Court of Appeals. If no action by the Eleventh Circuit Court of Appeals to extend or lift the stay with that time period, this stay will be lifted on 2/9/15. Signed by Judge Callie V. S. Granade on 1/26/2015. (copies mailed to Plfs on 1/26/15) (tot) (Entered: 01/26/2015)
30 NOTICE of Appearance by Andrew L. Brasher on behalf of Luther Strange (Brasher, Andrew) (Entered: 01/26/2015)
31 NOTICE OF INTERLOCUTORY APPEAL as to 29 Order on Motion for Preliminary Injunction, Order on Motion for Permanent Injunction,,,, by Luther Strange. (Brasher, Andrew) (Entered: 01/26/2015)
32 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 29 Order on Motion for Preliminary Injunction, Order on Motion for Permanent Injunction, 31 Notice of Appeal − Interlocutory, Judge Appealed: Judge Granade, Court Reporter: No Hearings, Fee Pending (jal) (Entered: 01/26/2015)
33 Order WITHDRAWING all the February 2015 dates set forth in 28 Order in light of the interlocutory appeal as set out. Signed by Magistrate Judge William E. Cassady on 1/27/2015. (copies mailed to Plfs on 1/27/15) (tot) (Entered: 01/27/2015)
34 NOTICE of Docketing Record on Appeal from USCA re 31 Notice of Appeal − Interlocutory filed by Luther Strange. USCA Case Number 15−10313−A (jal) (Entered: 01/28/2015)
35 Appeal Instructions for Andrew Brasher, Esq. re: 31 Notice of Appeal − Interlocutory : The Civil Appeal Statement Form is available on the Internet at www.ca11.uscourts.gov. Transcript Information Form to be filed no later than 2/11/2015. (jal) (Entered: 01/28/2015)
36 TRANSCRIPT INFORMATION FORM filed by Luther Strange re: 31 Notice of Appeal − Interlocutory. Requesting transcripts for proceedings as follows: 12/18/14 PI hearing before Judge Granade, Court Reporter Roy Isbell. Email to Court Reporter Roy Isbell. (Davis, James) (Entered: 01/28/2015)
37 USCA Appeal Fees received $ 505 receipt number 33963 re 31 Notice of Appeal − Interlocutory filed by Luther Strange ; USCA Case Number 15−10313−A (jal) (Entered: 01/29/2015)
38 Transcript Acknowledgment filed by Court Reporter Roy Isbell, re: 36 Transcript Information Form, 31 Notice of Appeal − Interlocutory for proceedings as follows: 12/18/2014 before Judge Callie V. S. Granade, Transcript due by 2/3/2015. (Isbell, Roy) (Entered: 01/31/2015)
39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for date of 12/18/2014, HEARING ON MOTION FOR PRELIMINARY INJUNCTION, before Judge Callie V. S. Granade, re: 31 Notice of Appeal − Interlocutory. USCA Case Number 15−10313−A. Court Reporter Roy Isbell, Telephone number 251−690−3085. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have twenty−one (21) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. Notice of Transcript Redaction to be filed by 2/23/2015. Redaction Request due 2/23/2015. Redacted Transcript Deadline set for 3/3/2015. Release of Transcript Restriction set for 5/1/2015. (Isbell, Roy) (Entered: 01/31/2015)
40 MOTION to Lift Stay by John E. Humphrey, James N. Strawser. (Attachments: # 1 Exhibit) (Stoll, Christopher) (Entered: 02/03/2015)
REFERRAL OF 40 MOTION to Lift Stay to Judge Granade. (tot) (Entered: 02/03/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 20 of 34

02/03/2015 02/03/2015 02/04/2015
02/09/2015
02/10/2015 02/10/2015 02/10/2015 02/10/2015
02/10/2015 02/10/2015 02/11/2015 02/11/2015 02/11/2015 02/11/2015 02/12/2015

41 RESPONSE in Opposition re 40 MOTION to Lift Stay filed by Luther Strange. (Davis, James) (Entered: 02/03/2015)
REFERRAL OF 41 Response in Opposition to Motion to Lift Stay to Judge Granade. (tot) (Entered: 02/03/2015)
42 ORDER, DENYING 40 Motion for Immediate Lift of Stay. If the Supreme Court denies a stay or does not rule before February 9, 2015, this court's stay will still remain in place until that date to allow the Probate Courts of this state to be completely prepared for compliance with the rulings in this case and the Searcy case. Signed by Judge Callie V. S. Granade on 2/4/2015. (mab) (Entered: 02/04/2015)
43 MOTION to Amend Complaint 1 Complaint , MOTION for Preliminary Injunction , MOTION for Temporary Restraining Order by John E. Humphrey, James N. Strawser. (Attachments: # 1 Exhibit Exhibit A to Motion −− Proposed First Amended Complaint, # 2 Stoll Declaration in Support of Motion, # 3 Exhibit Exhibit A to Stoll Declaration, # 4 Strawser Declaration in Support of Motion, # 5 Miller Declaration in Support of Motion, # 6 Simmons Declaration in Support of Motion, # 7 Povilat Declaration in Support of Motion) (Stoll, Christopher) (Entered: 02/09/2015)
44 RESPONSE to Motion re: 43 MOTION to Amend Complaint 1 Complaint MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Luther Strange. (Davis, James) (Entered: 02/10/2015)
REFERRAL OF 43 MOTION to Amend 1 Complaint, MOTION for Preliminary Injunction MOTION for Temporary Restraining Order, 44 Response to Motion to Amend Complaint, Motion for Preliminary Injunction Temporary Restraining Order to Judge Granade. (tot) (Entered: 02/10/2015)
45 NOTICE of Appearance by Randall C. Marshall on behalf of John E. Humphrey, James N. Strawser (Marshall, Randall) (Entered: 02/10/2015)
46 Order re: Plfs' 43 Emergency MOTION for Leave to File an Amended Complaint, MOTION for Preliminary Injunction Temporary Restraining Order. Plfs' 43 MOTION for Leave to File an Amended Complaint is GRANTED as set out. A Hearing on the 43 MOTION for Preliminary Injunction is set for 2/12/2015 at 01:00 PM in US Courthouse, Courtroom 2B, 113 St. Joseph Street, Mobile, AL 36602 before Judge Callie V. S. Granade. The clerk of court is directed to provide Joseph Michael Druhan, Jr., counsel for Judge Don Davis, with a copy of this Order. Signed by Judge Callie V. S. Granade on 2/10/2015. (tot) (Entered: 02/10/2015)
47 AMENDED COMPLAINT against Luther Strange, Don Davis, filed by James N. Strawser, John E. Humphrey, Robert Povilat, Anna Lisa Carmichael, Kristy Simmons, Milton Persinger, Meredith Miller, Marshay Safford. (Attachments: # 1 Proposed Summons) (Stoll, Christopher) (Entered: 02/10/2015)
Answer to 47 Amended Complaint due from Luther Strange on 2/27/2015. (tot) (Entered: 02/12/2015)
48 Summons Issued as to Don Davis. (Note to Counsel: The Summons has been issued. Please print copies necessary for service.) (mab) (Entered: 02/11/2015)
49 NOTICE of Appearance by Joseph Michael Druhan, Jr on behalf of Don Davis (Druhan, Joseph) (Entered: 02/11/2015)
50 NOTICE of Appearance by Harry V. Satterwhite on behalf of Don Davis (Satterwhite, Harry) (Entered: 02/11/2015)
51 NOTICE of Appearance by Lee L. Hale on behalf of Don Davis (Hale, Lee) (Entered: 02/11/2015)
52 NOTICE by Don Davis Notice to this Court of Presently Conflicting Authority and Potential Conflicting Authority Based on Recent Filings (Satterwhite, Harry) (Entered: 02/12/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 21 of 34

02/12/2015 02/12/2015
02/12/2015
02/12/2015 02/12/2015 02/12/2015
02/13/2015 02/13/2015 02/15/2015 02/17/2015 02/17/2015
02/17/2015 02/17/2015 02/17/2015 02/18/2015

REFERRAL OF 52 Notice of Presently Conflicting Authority &Potential Conflicting Authority Based on Recent Filings to Judge Granade. (tot) (Entered: 02/12/2015)
53 MOTION for Shannon P. Minter to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1698540, Online Credit Card Payment.) by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Attorney Admission Form, # 2 Certificate of Good Standing) (Minter, Shannon) (Entered: 02/12/2015)
54 MOTION for Christopher F. Stoll to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1698543, Online Credit Card Payment.) by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Attorney Admission Form, # 2 Certificate of Good Standing) (Stoll, Christopher) (Entered: 02/12/2015)
Minute Entry for proceedings held before Judge Callie V. S. Granade: Preliminary Injunction Hearing held on 2/12/2015. Court Reporter Roy Isbell. (mab) (Entered: 02/12/2015)
MOTIONS REFERRED: 53 MOTION for Shannon P. Minter to Appear Pro Hac Vice, 54 MOTION for Christopher F. Stoll to Appear Pro Hac Vice referred to Judge William E. Cassady. (tot) (Entered: 02/12/2015)
55 ORDER, It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30−1−19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same−sex marriage. Signed by Judge Callie V. S. Granade on 2/12/2015. (mab) (Entered: 02/12/2015)
56 ORDER re: 53 Motion to Appear Pro Hac Vice, 54 Motion to Appear Pro Hac Vice. Counselors Minter &Stoll are admitted pro hac vice as set out. Signed by Magistrate Judge William E. Cassady on 2/13/2015. (tot) (Entered: 02/13/2015)
57 ORDER, DENYING as MOOT the 24 Motion to Dismiss filed by Luther Strange. Signed by Magistrate Judge William E. Cassady on 2/13/2015. (mab) (Entered: 02/13/2015)
58 MOTION to Intervene by Alan King. (Attachments: # 1 Exhibit Emergency Petition for Writh of Mandamus) (McMillan, French) (Entered: 02/15/2015)
59 MOTION for Preliminary Injunction by Alan King. (Attachments: # 1 Exhibit) (McMillan, French) (STRICKEN ON 2/20/15 − SEE DOC. 66 ) Modified on 2/20/2015 (tot). (Entered: 02/17/2015)
60 Emergency MOTION for Enforcement of Injunction &Emergency MOTION to Expedite Ruling by District Judge on Emergency Motion for Enforcement of Injunction by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Exhibit State v. King petition for writ of mandamus, # 2 Exhibit State v. King scheduling order) (Marshall, Randall) (Entered: 02/17/2015)
61 RESPONSE in Opposition re 58 MOTION to Intervene filed by Luther Strange. (Davis, James) (Entered: 02/17/2015)
62 RESPONSE in Opposition to 60 Plaintiffs' for Emergency Motion for Enforcement of Judgment, filed by Luther Strange. (Davis, James) (Entered: 02/17/2015)
63 REPLY to 61 Response in Opposition to Motion, 58 MOTION to Intervene filed by Alan King. (McMillan, French) (Entered: 02/17/2015)
64 REPLY to Response to Motion 60 for Enforcement of Injunction filed by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Marshall, Randall) (Entered: 02/18/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 22 of 34

02/18/2015 02/18/2015 02/18/2015 02/20/2015
02/20/2015 02/20/2015 02/20/2015 02/24/2015 03/02/2015 03/03/2015 03/05/2015 03/06/2015 03/06/2015

REFERRAL OF 58 Emergency Verified MOTION by Jefferson County Probate Judge Alan King for Leave to Intervene as a Party as of Right or, in the Alternative, by Permission; 61 Defendant Attorney General Strange's 61 Response in Opposition; and 63 Proposed Intervenor's Reply to Judge Callie V. S. Granade. (mab) (Entered: 02/18/2015)
MOTIONS REFERRED: 59 Proposed Intervenor Jefferson County Probate Judge Alan King's MOTION for Preliminary Injunction Referred to Judge Callie V. S. Granade. (mab) (Entered: 02/18/2015)
REFERRAL OF 60 Plaintiffs' Emergency MOTION for Enforcement of Injunction and Emergency MOTION to Expedite Ruling by District Judge on Emergency Motion for Enforcement of Injunction; 62 Defendant Attorney General Strange's Response in Opposition; and 64 Plaintiffs' Reply to Judge Callie V. S. Granade. (mab) (Entered: 02/18/2015)
65 NOTICE of Filing Exhibits by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser re: 60 Emergency MOTION for Enforcement of InjunctionEmergency MOTION to Expedite Ruling by District Judge on Emergency Motion for Enforcement of Injunction (Attachments: # 1 Exhibit 3: Jefferson County Probate Judge King and Madison County Probate Judge Ragland Joint Answer and Brief, # 2 Exhibit 4: Chilton County Probate Judge Martin Answer and Brief, # 3 Exhibit 5: Montgomery County Probate Judge Reed Answer and Brief, # 4 Exhibit 6: Mobile County Probate Judge Davis Response, # 5 Exhibit 7: Elmore County Probate Judge Enslen Answer, # 6 Exhibit 8: Equality Alabama Motion for Leave to File Amicus Brief and Brief, # 7 Exhibit 9: Eagle Forum of Alabama Education Foundation and Eagle Forum Education &Legal Defense Fund Motion for Leave to File Amici Brief and Brief, # 8 Exhibit 10: J. Stanton Glasscox Motion for Leave to File Amicus Brief and Brief, # 9 Exhibit 11: Extension of time until 10:00 a.m., Monday, February 23, 2015, to file Reply Brief) (Marshall, Randall) (Entered: 02/20/2015)
REFERRAL OF 65 Notice of Filing Exhibits to Judge Granade. (tot) (Entered: 02/20/2015)
66 ORDER DENYING Jefferson County Probate Judge Alan King's 58 Motion to Intervene as set out &STRIKING Judge King's 59 Motion for Preliminary Injunction as set out. Signed by Judge Callie V. S. Granade on 2/20/2015. (tot) (Entered: 02/20/2015)
67 ORDER DENYING Plfs' 60 Emergency Motion for Enforcement of Judgment as set out. Signed by Judge Callie V. S. Granade on 2/20/2015. (tot) (Entered: 02/20/2015)
68 ANSWER to 47 Amended Complaint, by Luther Strange. (Davis, James) (Entered: 02/24/2015)
69 MOTION for Extension of Time to File Response/Reply as to 47 Amended Complaint, by Don Davis. (Satterwhite, Harry) (Entered: 03/02/2015)
70 Endorsed Order GRANTING Dft Davis' 69 Unopposed MOTION for Extension of Time to File Initial Responsive Pleading. Dft Davis is to file his initial responsive pleading no later than 4/3/2015. Signed by Judge Callie V. S. Granade on 3/3/2015. (tot) (Entered: 03/03/2015)
71 MOTION to Stay re 55 Order on Motion for Permanent Injunction, by Don Davis. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Satterwhite, Harry) (Entered: 03/05/2015)
72 Order re: 71 MOTION to Stay 55 Order. Plfs are to file a response to the motion on or before 3/13/2015. Signed by Judge Callie V. S. Granade on 3/6/2015. (tot) (Entered: 03/06/2015)
73 NOTICE of Appearance by Mark S. Boardman on behalf of Don Davis (Boardman, Mark) (Entered: 03/06/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 23 of 34

03/06/2015 03/06/2015 03/06/2015
03/06/2015 03/06/2015 03/09/2015 03/09/2015 03/09/2015 03/09/2015
03/09/2015 03/10/2015 03/10/2015 03/11/2015 03/12/2015 03/13/2015

74 NOTICE of Appearance by Clay Richard Carr on behalf of Don Davis (Carr, Clay) (Entered: 03/06/2015)
75 NOTICE of Appearance by Teresa Bearden Petelos on behalf of Don Davis (Petelos, Teresa) (Entered: 03/06/2015)
76 MOTION to Amend Complaint , MOTION to Certify Class , MOTION for Preliminary Injunction by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Exhibit A −− Proposed Second Amended Complaint, # 2 Exhibit B −− McCoy Declaration, # 3 Exhibit C −− Ogle Declaration, # 4 Exhibit D −− Ingram Declaration, # 5 Exhibit E −− Wright Declaration) (Marshall, Randall) (Entered: 03/06/2015)
REFERRAL OF 76 MOTION to Amend Complaint, MOTION to Certify Class, &MOTION for Preliminary Injunction to Judge Granade. (tot) (Entered: 03/06/2015)
77 NOTICE of Filing Exhibits Notice of Filing Replacement Exhibits by Don Davis re: 71 MOTION to Stay re 55 Order on Motion for Permanent Injunction, (Attachments: # 1 Exhibit) (Satterwhite, Harry) (Entered: 03/06/2015)
REFERRAL OF 77 Notice of Filing Replacement Exhibits to Judge Granade. (tot) (Entered: 03/09/2015)
78 RESPONSE in Opposition re 76 MOTION to Amend Complaint MOTION to Certify Class MOTION for Preliminary Injunction filed by Luther Strange. (Strange, Luther) (Entered: 03/09/2015)
REFERRAL OF 78 Response in Opposition to Motion for Leave to Amend, to Certify Class, &for Preliminary Injunction to Judge Granade. (tot) (Entered: 03/09/2015)
79 MOTION for Ayesha N. Khan to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1709888, Online Credit Card Payment.) by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Attorney Admission Form, # 2 Certificate of Good Standing) (Khan, Ayesha) (Entered: 03/09/2015)
MOTIONS REFERRED: 79 MOTION of Ayesha N. Khan to Appear Pro Hac Vice with application and Certificate of Good Standing attached. ( Filing fee $ 50, Receipt number 1128−1709888, Online Credit Card Payment.); Referred to Judge William E. Cassady. (mab) (Entered: 03/09/2015)
80 ORDER re: 79 Motion to Appear Pro Hac Vice. Ayesha N. Khan is admitted pro hac vice as set out. Signed by Magistrate Judge William E. Cassady on 3/10/2015. (tot) (Entered: 03/10/2015)
81 NOTICE by Luther Strange re 78 Response in Opposition to Motion Notice of Filing Materials in Support of His Opposition to Plaintiffs' Motion to Amend (Attachments: # 1 Exhibit 1 − Hard.76.Order dismissing Bentley, # 2 Exhibit 2 − Hard.77.Stay Order) (Davis, James) (Entered: 03/10/2015)
REFERRAL OF 81 Defendant Attorney General Strange's Notice of Filing of Materials in Support of His 78 Opposition to Plaintiff's 76 Motion to Amend to Judge Granade. (mab) (Entered: 03/11/2015)
82 Order re: 76 MOTION to Amend Complaint, MOTION to Certify Class &MOTION for Preliminary Injunction. Dft Don Davis is to file a response or objections to the motion on or before 3/17/2015. Signed by Judge Callie V. S. Granade on 3/12/2015. (tot) (Entered: 03/12/2015)
83 RESPONSE in Opposition re 71 MOTION to Stay re 55 Order on Motion for Permanent Injunction, filed by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Exhibit 1) (Minter, Shannon) (Entered: 03/13/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 24 of 34

03/13/2015
03/13/2015 03/13/2015
03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/17/2015 03/17/2015 03/18/2015
03/18/2015 03/18/2015 03/18/2015 03/19/2015

84 MOTION for Zachary A. Dietert to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1712533, Online Credit Card Payment.) by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Attorney Admission Form, # 2 Certificates of Good Standing) (Dietert, Zachary) (Entered: 03/13/2015)
85 Supplement to 71 MOTION to Stay by Don Davis. (Carr, Clay) Modified on 3/16/2015 (tot). (Entered: 03/13/2015)
86 MOTION for Scott D. McCoy to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1712575, Online Credit Card Payment.) by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (Attachments: # 1 Exhibit A − Attorney Application for Admission to Practice Pro Hac Vice, # 2 Exhibit B − Certificate of Good Standing for Scott D. McCoy) (McCoy, Scott) (Entered: 03/13/2015)
87 RESPONSE in Opposition to 85 Supplement to 71 MOTION to Stay filed by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (McCoy, Scott) Modified on 3/16/2015 (tot). (Entered: 03/16/2015)
REFERRAL OF 85 Supplement to Motion to Stay, 87 Response in Opposition to Supplement to Motion to Stay to Judge Granade. (tot) (Entered: 03/16/2015)
MOTIONS REFERRED: 84 MOTION for Zachary A. Dietert to Appear Pro Hac Vice referred to Judge William E. Cassady. (tot) (Entered: 03/16/2015)
MOTIONS REFERRED: 86 MOTION for Scott D. McCoy to Appear Pro Hac Vice referred to Judge William E. Cassady. (tot) (Entered: 03/16/2015)
88 ORDER DENYING Judge Don Davis' 71 Motion to Stay Court's 2/12/15 Preliminary Injunction Order as set out. Signed by Judge Callie V. S. Granade on 3/16/2015. (tot) (Entered: 03/16/2015)
89 Order re: Plfs' 76 MOTION to Amend Complaint, MOTION to Certify Class &MOTION for Preliminary Injunction. Dft Strange is to file a response to the motions to certify class &for preliminary injunction on or before 3/23/2015. Signed by Judge Callie V. S. Granade on 3/17/2015. (tot) (Entered: 03/17/2015)
90 RESPONSE in Opposition re 76 MOTION to Amend Complaint MOTION to Certify Class MOTION for Preliminary Injunction filed by Don Davis. (Attachments: # 1 Exhibit Judge Davis's Correction to Certificate of Service) (Carr, Clay) (Entered: 03/17/2015)
91 MOTION for Leave to File Excess Pages for Reply in Support of Plaintiffs' Motion for Leave to File Second Amended Complaint, Class Certification, and Preliminary Injunction by Anna Lisa Carmichael, John E. Humphrey, Meredith Miller, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser. (McCoy, Scott) (Entered: 03/18/2015)
MOTIONS REFERRED: 91 MOTION for Leave to File Excess Pages for Reply in Support of Plaintiffs' Motion for Leave to File Second Amended Complaint, Class Certification, and Preliminary Injunction referred to Judge Granade. (sdb) (Entered: 03/18/2015)
92 ORDER granting 76 Motion to Amend Complaint. Signed by Judge Callie V. S. Granade on 3/18/2015. copies to parties. (sdb) (Entered: 03/18/2015)
REFERRAL OF 90 Response in Opposition to 76 MOTION to Certify Class and MOTION for Preliminary Injunction, filed by Don Davis to Judge Granade. (mab) (Entered: 03/18/2015)
93 ENDORSED ORDER granting Plfs' 91 Motion for Leave to File Over−Length Reply Memorandum on or before 3/25/15. Signed by Judge Callie V. S. Granade on 3/19/2015. (tot) (Entered: 03/19/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 25 of 34

03/19/2015 03/19/2015
03/19/2015 03/20/2015 03/20/2015
03/20/2015
03/20/2015 03/23/2015 03/24/2015
03/30/2015 03/31/2015 04/03/2015 04/06/2015 04/07/2015 04/08/2015

94 ORDER re: 84 Motion to Appear Pro Hac Vice. Zachary A. Dietert is admitted pro hac vice as set out. Signed by Magistrate Judge William E. Cassady on 3/19/2015. (tot) Modified on 3/19/2015 (tot). (Entered: 03/19/2015)
95 AMENDED COMPLAINT against Don Davis, Luther Strange, Tim Russell, filed by James N. Strawser, Anna Lisa Carmichael, Kristy Simmons, Marshay Safford, Meredith Miller, Milton Persinger, Robert Povilat, John E. Humphrey, Albert Halloway Pigg III, Gary Wayne Wright II, Brandon Mabrey, Keith Ingram, Kristie Ogle, Jennifer Ogle. (Attachments: # 1 Proposed Summons) (Minter, Shannon) (Entered: 03/19/2015)
Answer to 95 Amended Complaint due from Don Davis on 4/6/2015; Luther Strange on 4/6/2015. (tot) (Entered: 03/20/2015)
96 Summons Issued as to Tim Russell. (NOTE TO COUNSEL: The Summons has been issued. Please print copies necessary for service.) (tot) (Entered: 03/20/2015)
97 AFFIDAVIT of Service for Summons, Second Amended Complaint, other pending documents served on Baldwin County Probate Court Judge Tim Russell on March 20,2015, filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 03/20/2015)
98 Order re: 86 MOTION for Scott D. McCoy to Appear Pro Hac Vice. Counselor McCor is admitted pro hac vice as set out. Mr. McCoy shall supplement his application with a certificate of good standing from one federal court in which has been admitted to practice by 4/3/2015. Signed by Magistrate Judge William E. Cassady on 3/20/2015. (tot) (Entered: 03/20/2015)
Answer to 95 Second Amended Complaint due from Tim Russell on 4/10/2015 − See Doc. 97 . (tot) (Entered: 03/23/2015)
99 RESPONSE in Opposition re 76 MOTION to Amend Complaint MOTION to Certify Class MOTION for Preliminary Injunction filed by Luther Strange. (Howell, Laura) (Entered: 03/23/2015)
100 REPLY Brief filed by Plaintiffs Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re: 76 MOTION to Amend Complaint MOTION to Certify Class MOTION for Preliminary Injunction filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Attachments: # 1 Exhibit A − Rhodes Declaration, # 2 Exhibit B − Proposed Order) (McCoy, Scott) (Entered: 03/24/2015)
101 MOTION to Dismiss the Claims Against Him in the Second Amended Complaint by Luther Strange. (Davis, James) (Entered: 03/30/2015)
REFERRAL OF 101 MOTION to Dismiss Claims Against Him in the Second Amended Complaint to Judge Granade. (tot) (Entered: 03/31/2015)
102 MOTION for Extension of Time For Response To Second Amended Complaint by Don Davis. (Carr, Clay) (Entered: 04/03/2015)
103 MOTION to Dismiss Second Amended Complaint (Doc. 95) by Don Davis. (Attachments: # 1 Appendix Appendix 1, Appendix 2, Appendix 3) (Carr, Clay) (Entered: 04/06/2015)
MOTIONS REFERRED: 102 MOTION for Extension of Time For Response To Second Amended Complaint, and 103 MOTION to Dismiss Second Amended Complaint (Doc. 95 ) Referred to Judge Callie V. S. Granade. (mab) (Entered: 04/07/2015)
104 RESPONSE TO ORDER re: 98 Order, Set Deadlines, Terminate Motions,,, by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 26 of 34

04/10/2015
04/10/2015
04/10/2015
04/10/2015 04/10/2015 04/10/2015 04/13/2015 04/13/2015
04/14/2015 04/23/2015 04/23/2015 04/27/2015 05/07/2015 05/07/2015

Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (McCoy, Scott) (Entered: 04/08/2015)
105 RESPONSE in Opposition re 101 MOTION to Dismiss the Claims Against Him in the Second Amended Complaint filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 04/10/2015)
106 RESPONSE in Opposition re 103 MOTION to Dismiss Second Amended Complaint (Doc. 95) filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Attachments: # 1 Exhibit 1: April 6, 2015, e−mail from R. Marshall to H. Satterwhite) (Marshall, Randall) (Entered: 04/10/2015)
107 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 76 MOTION to Amend Complaint MOTION to Certify Class MOTION for Preliminary Injunction , 100 Reply Brief,,, Alabama Department of Public Health statistics on marriages of same−sex couples (Marshall, Randall) (Entered: 04/10/2015)
REFERRAL OF 107 Notice of Supplemental Authority to Judge Granade. (tot) (Entered: 04/10/2015)
108 MOTION to Dismiss by Tim Russell. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Webb, Kendrick) (Entered: 04/10/2015)
109 Brief filed by Tim Russell re 108 MOTION to Dismiss filed by Tim Russell. (Webb, Kendrick) (Entered: 04/10/2015)
REFERRAL OF 108 MOTION to Dismiss, 109 Memorandum Brief in Support of Motion to Dismiss to Judge Granade. (tot) (Entered: 04/13/2015)
110 RESPONSE in Opposition re 108 MOTION to Dismiss filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 04/13/2015)
REFERRAL OF 110 Response in Opposition to Motion to Dismiss Second Amended Complaint to Judge Granade. (tot) (Entered: 04/14/2015)
111 ORDER DENYING 103 Motion to Dismiss filed by Dft Judge Don Davis &108 Motion to Dismiss filed by Dft Judge Tim Russell as set out. Signed by Judge Callie V. S. Granade on 4/23/2015. (tot) (Entered: 04/24/2015)
112 ORDER DENYING 101 Motion to Dismiss filed by Dft Luther Strange as set out. Signed by Judge Callie V. S. Granade on 4/24/2015. (tot) (Entered: 04/24/2015)
Answers to 95 Second Amended Complaint due from Don Davis; Tim Russell; and Luther Strange by 5/7/2015. (mab) (Entered: 04/27/2015)
113 ANSWER to 95 Amended Complaint, (Second Amended Complaint) by Luther Strange. (Davis, James) (Entered: 05/07/2015)
114 MOTION to Alter, Amend or Vacate 111 Order denying Motion to Dismiss, filed by Tim Russell. (Webb, Kendrick) Modified on 5/7/2015 (mab). (Entered: 05/07/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 27 of 34

05/07/2015 05/07/2015 05/07/2015 05/08/2015 05/08/2015
05/08/2015 05/13/2015 05/13/2015 05/21/2015 05/21/2015 05/21/2015
05/21/2015
05/21/2015 05/22/2015 05/26/2015

115 ANSWER to 95 Amended Complaint, by Tim Russell. (Webb, Kendrick) (Entered: 05/07/2015)
MOTIONS REFERRED: 114 MOTION to Alter, Amend or Vacate 111 Order denying 108 Motion to Dismiss Referred to Judge Callie V. S. Granade. (mab) (Entered: 05/07/2015)
116 ANSWER to 95 Amended Complaint, by Don Davis. (Boardman, Mark) (Entered: 05/07/2015)
117 ENDORSED ORDER, finding as MOOT 102 Judge Don Davis' Motion to Extend Deadline for Response to Second Amended Complaint. Signed by Judge Callie V. S. Granade on 5/8/2015. (mab) (Entered: 05/08/2015)
118 RESPONSE in Opposition re 114 MOTION to Alter, Amend or Vacate 111 Order denying Motion to Dismiss filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 05/08/2015)
REFERRAL OF 118 Response in Opposition to 114 MOTION to Alter, Amend or Vacate 111 Order denying 108 Motion to Dismiss to Judge Granade. (mab) (Entered: 05/08/2015)
119 MOTION for Leave to File Reply to Motion to Alter, Amend or Vacate by Tim Russell. (Attachments: # 1 Exhibit Reply) (Webb, Kendrick) (Entered: 05/13/2015)
MOTIONS REFERRED: 119 MOTION for Leave to File Reply to Motion to Plaintiffs' 118 Response to 114 Motion to Alter, Amend or Vacate Referred to Judge Callie V. S. Granade. (mab) (Entered: 05/13/2015)
120 ENDORSED ORDER, GRANTING 119 Defendant Probate Judge Tim Russell's Motion for Leave to File a Reply to Plaintiffs' Response to His Motion to Alter, Amend, or Vacate. The clerk is directed to file the reply attached to the motion. Signed by Judge Callie V. S. Granade on 5/21/2015. (mab) (Entered: 05/21/2015)
121 REPLY to 118 RESPONSE in Opposition to 114 MOTION to Alter, Amend or Vacate 111 Order denying Motion to Dismiss, filed by filed by Tim Russell; referred to Judge Granade (mab) (Entered: 05/21/2015)
122 ORDER, GRANTING 76 Motion for class certification; GRANTING motion to certify a Plaintiff Class; APPOINTING Lead Plaintiffs and Plaintiff Class representatives; APPOINTING Co−Lead Counsel for Lead Plaintiffs and the Plaintiff Class; GRANTING motion to certify a Defendant Class; APPOINTING Lead Defendants and Defendant Class representative; and APPOINTING Co−Lead Counsel for Lead Defendants and the Defendant Class. Signed by Judge Callie V. S. Granade on 5/21/2015. (mab) (Entered: 05/21/2015)
123 ORDER, GRANTING 76 Motion for Preliminary Injunction, and ENJOINING members of the Defendant Class from enforcing the Alabama law which prohibit or fail to recognize same−sex marriage; and STAYING preliminary injunction until the Supreme Court issues its ruling in Obergefell v. Hodges and related cases. Signed by Judge Callie V. S. Granade on 5/21/2015. (mab) (Entered: 05/21/2015)
124 ORDER, DENYING the 114 motion of Judge Tim Russell to alter, amend or vacate. Signed by Judge Callie V. S. Granade on 5/21/2015. (mab) (Entered: 05/21/2015)
125 CERTIFICATE of Counsel re 123 Order on Motion for Preliminary Injunction, Service of Orders on Defendant Class Members by Randall C. Marshall on behalf of All Plaintiffs (Attachments: # 1 Exhibit 1: List of Probate Judges, # 2 Exhibit 2: Certified Mail Receipts) (Marshall, Randall) (Entered: 05/22/2015)
REFERRAL OF 125 CERTIFICATE of Counsel re 123 Order on Motion for Preliminary Injunction, Service of Orders on Defendant Class Members, to Judge Granade. (mab) (Entered: 05/26/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 28 of 34

06/03/2015
06/03/2015 06/04/2015 06/04/2015 06/04/2015
06/04/2015 06/05/2015 06/08/2015 06/08/2015 06/09/2015 06/09/2015
06/10/2015
06/15/2015 06/16/2015

126 CERTIFICATE of Counsel re 125 Certificate of Counsel, 123 Order on Motion for Preliminary Injunction, Certified Mail Return Receipts by Randall C. Marshall on behalf of All Plaintiffs (Attachments: # 1 Exhibit 1: certified return receipts, # 2 Exhibit 2: Chilton, Lowndes and Wilcox counties) (Marshall, Randall) (Entered: 06/03/2015)
REFERRAL OF 126 Certificate of Counsel to Judge Granade. (mab) (Entered: 06/03/2015)
127 NOTICE OF INTERLOCUTORY APPEAL by Tim Russell. ( Filing fee $505 receipt number 1128−1749503, Online Credit Card Payment) (Webb, Kendrick) (Entered: 06/04/2015)
128 Appeal Instructions for Kendrick Webb, Esq., for Tim Russell, re: 127 Notice of Appeal − Interlocutory : The Civil Appeal Statement Form is available on the Internet at www.ca11.uscourts.gov. Transcript Information Form to be filed no later than 6/18/2015. (jal) (Entered: 06/04/2015)
129 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 127 Notice of Appeal − Interlocutory, Other Appeals: 15−10313−A, 111 Order on Motion to Dismiss, 123 Order on Motion for Preliminary Injunction, 124 Order on Motion to Alter Judgment, Judge Appealed: Judge Granade, Court Reporter: Roy Isbell, Fee Paid: Paid (jal) (Entered: 06/04/2015)
130 Motion to Withdraw as Class Representative and Class Counsel, by Don Davis. (Boardman, Mark) Modified on 6/8/2015 (mab). (Entered: 06/04/2015)
REFERRAL OF 130 MOTION to Withdraw as Class Representative and Class Counsel to Judge Granade. (tot) (Entered: 06/05/2015)
131 Order, re: Motion to Withdraw as Class Representative and Class Counsel filed by Don Davis. Unless an objection is filed to motion by 6/15/2015, motion will be deemed granted without further order from the court. Signed by Judge Callie V. S. Granade on 6/8/2015. (mab) Modified on 6/8/2015 (mab). (Entered: 06/08/2015)
132 NOTICE of Docketing Record on Appeal from USCA re 127 Notice of Appeal − Interlocutory filed by Tim Russell. USCA Case Number 15−12508−D (jal) (Entered: 06/10/2015)
133 USCA NOTICE by James N. Strawser re 127 Notice of Appeal − Interlocutory, The appeal case numbers 15−12508 and Petition for Permission to Appeal 23(f) 15−90014 are held in abeyance pending the US Supreme Court's issuance of opinion in DeBoer v. Snyder, as further sets out. (jal) (Entered: 06/10/2015)
134 CORRECTED USCA NOTICE to Reflect Additional Information as to Tim Russell re 133 Appeal 15−12508 and Petition for Permission to Appeal 23(f) 15−90014 are held in abeyance pending the US Supreme Court's issuance of an opinion in DeBoer v. Snyder, as further sets out. (Lead 14−14061−AA) (jal) (Entered: 06/10/2015)
135 RESPONSE in Opposition re 130 MOTION to Withdraw Motion to Withdraw as Class Representative and Class Counsel filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Minter, Shannon) (Entered: 06/10/2015)
136 MOTION for Leave to File A Reply by Don Davis. (Attachments: # 1 Exhibit Ex. A − Defendant Judge Don Davis's Reply to Plaintiffs' Opposition to Defendant Don Davis's Motion to Withdraw as Class Counsel) (Boardman, Mark) (Entered: 06/15/2015)
137 CERTIFICATE of Counsel re 126 Certificate of Counsel, 125 Certificate of Counsel, 123 Order on Motion for Preliminary Injunction, by Randall C. Marshall on behalf of All Plaintiffs (Attachments: # 1 Exhibit 1: Return Receipts for Chilton, Lowndes, and Wilcox counties) (Marshall, Randall) (Entered: 06/16/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 29 of 34

06/16/2015 06/16/2015 06/17/2015 06/17/2015 06/17/2015 06/17/2015 06/29/2015
06/29/2015
06/29/2015 06/30/2015 07/01/2015
07/01/2015 07/01/2015 07/02/2015 07/06/2015

MOTIONS REFERRED: 136 MOTION for Leave to File A Reply to Doc 135 Plaintiffs' Opposition to Motion to Withdraw as Class Counsel Referred to Judge Callie V. S. Granade. (mab) (Entered: 06/16/2015)
REFERRAL OF 137 Certificate of Counsel to Judge Granade. (mab) (Entered: 06/16/2015)
138 TRANSCRIPT INFORMATION FORM filed by Tim Russell re: 127 Notice of Appeal − Interlocutory. Court Reporter Roy Isbell. Email to Court Reporter Roy Isbell. (Webb, Kendrick) (Entered: 06/17/2015)
139 TRANSCRIPT INFORMATION FORM filed by Tim Russell re: 127 Notice of Appeal − Interlocutory. Requesting transcripts for proceedings as follows: 2/12/15 Preliminary Injunction before Judge Granade, Court Reporter Roy Isbell. Email to Court Reporter Roy Isbell. (Webb, Kendrick) (Entered: 06/17/2015)
140 ENDORSED ORDER, GRANTING 136 Motion for Leave to File a Reply, and directing clerk to docket the reply attached to the motion. Signed by Judge Callie V. S. Granade on 6/17/2015. (mab) (Entered: 06/17/2015)
141 REPLY to Plaintiffs' 135 Opposition to Defendant Don Davis's 130 MOTION to Withdraw as Class Counsel, filed by Don Davis; referred to Judge Granade. (mab) (Entered: 06/17/2015)
142 MOTION for Permanent Injunction , MOTION for Judgment as a Matter of Law by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 06/29/2015)
143 Transcript Acknowledgment filed by Court Reporter Roy Isbell, re: 127 Notice of Appeal − Interlocutory, 138 Transcript Information Form, 139 Transcript Information Form, for proceedings as follows: 12/18/2014 &2/12/2015 HEARINGS ON PRELIMINARY INJUNCTION before Judge Callie V. S. Granade, (Attachments: # 1 Supplement) (Isbell, Roy) (Entered: 06/29/2015)
REFERRAL OF 142 MOTION for Permanent Injunction &Final Judgment to Judge Granade. (tot) (Entered: 06/29/2015)
146 Order re: Plaintiffs' 142 MOTION for Permanent Injunction and Final Judgment. Any response in opposition to motion due by 7/7/2015. Signed by Judge Callie V. S. Granade on 6/30/2015. (mab) (Entered: 07/01/2015)
144 MOTION to Clarify Preliminary Injunction Order, Doc. 123 by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Attachments: # 1 Exhibit 1: e−mail from Plaintiff Classs counsel and response from Ken Webb, # 2 Exhibit 2: memorandum from ACCA to probate court judges, # 3 Exhibit 3: Declaration of Jennifer Kenney) (Marshall, Randall) (Entered: 07/01/2015)
MOTIONS REFERRED: 144 MOTION for Clarification of 123 Preliminary Injunction Order; Referred to Judge Callie V. S. Granade. (mab) (Entered: 07/01/2015)
145 ORDER, GRANTING 144 Motion for Clarification as set out in order. Signed by Judge Callie V. S. Granade on 7/1/2015. (mab) Modified on 7/1/2015 (mab). (Entered: 07/01/2015)
147 Amended MOTION to Withdraw as Class Representative and Class Counsel, and Request for Expedited Hearing by Don Davis. (Carr, Clay) (Entered: 07/02/2015)
148 Order re: 147 Amended Motion to Withdraw as Class Representative &Class Counsel &Request for Expedited Hearing filed by Judge Don Davis. Judge Davis's request for expedited hearing is DENIED. Responses to Judge Davis's Motion to Withdraw due on or before 7/13/2015. Signed by Judge Callie V. S. Granade on 7/6/2015. (tot) (Entered: 07/06/2015)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 30 of 34

07/07/2015
07/07/2015 07/07/2015 07/07/2015 07/07/2015 07/07/2015 07/07/2015 07/08/2015
07/08/2015 07/13/2015
07/13/2015

149 RESPONSE in Opposition re 147 Amended MOTION to Withdraw MOTION for Hearing filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat. (Attachments: # 1 Exhibit 1: June 29 e−mail from Plaintiff Classs counsel and response from Ken Webb, # 2 Exhibit 2: response to same e−mail from Clay Carr, # 3 Exhibit 3: July 1 e−mail from Plaintiff Classs counsel and response from Ken Webb, # 4 Exhibit 4: response to same e−mail from Mark Boardman) (Marshall, Randall) (Entered: 07/07/2015)
REFERRAL OF 149 Response in Opposition to Amended Motion to Withdraw as Class Representative &Class Counsel to Judge Granade. (tot) (Entered: 07/07/2015)
150 RESPONSE to Motion re: 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law filed by Luther Strange. (Davis, James) (Entered: 07/07/2015)
REFERRAL OF 150 Response to Motion for a Permanent Injunction to Judge Granade. (tot) (Entered: 07/07/2015)
151 RESPONSE in Opposition re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law filed by Tim Russell. (Webb, Kendrick) (Entered: 07/07/2015)
152 RESPONSE in Opposition re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law filed by Don Davis. (Carr, Clay) (Entered: 07/07/2015)
REFERRAL OF 151 &152 RESPONSES in Opposition to 142 MOTION for Permanent Injunction and MOTION for Judgment as a Matter of Law to Judge Granade. (mab) (Entered: 07/07/2015)
153 MOTION for Leave to File Reply Memorandum in Support of Motion for Permanent Injunction and Final Judgment by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 07/08/2015)
154 ENDORSED ORDER, GRANTING Plaintiffs' 153 Motion for Leave to File Reply Memorandum in Support of Motion for Permanent Injunction and Final Judgment on or before July 17, 2015. Signed by Judge Callie V. S. Granade on 7/8/2015. (mab) (Entered: 07/08/2015)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of 2/12/2015 HEARING ON MOTION FOR PRELIMINARY INJUNCTION before Judge Callie V. S. Granade, re: 127 Notice of Appeal − Interlocutory. Court Reporter Roy Isbell, Telephone number 251−690−3085. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have twenty−one (21) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. Notice of Transcript Redaction to be filed by 8/3/2015. Redaction Request due 8/3/2015. Redacted Transcript Deadline set for 8/13/2015. Release of Transcript Restriction set for 10/12/2015. (Isbell, Roy) (Entered: 07/13/2015)
156 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for date of 12/18/2014, HEARING ON MOTION FOR PRELIMINARY INJUNCTION before Judge Callie V. S. Granade, re: 127 Notice of Appeal − Interlocutory. Court Reporter Roy Isbell, Telephone number 251−690−3085. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have twenty−one (21) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. Notice of Transcript Redaction to

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 31 of 34

07/13/2015 07/13/2015 07/13/2015
07/14/2015 07/14/2015 07/14/2015
07/15/2015 07/15/2015 07/16/2015 08/12/2015
08/12/2015 08/20/2015

be filed by 8/3/2015. Redaction Request due 8/3/2015. Redacted Transcript Deadline set for 8/13/2015. Release of Transcript Restriction set for 10/12/2015. (Isbell, Roy) (Entered: 07/13/2015)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Alabama certifies that the record is complete for purposes of this appeal re: 31 Notice of Appeal − Interlocutory, 127 Notice of Appeal − Interlocutory, Appeal No. 15−12508−D, 15−10313. The entire record on appeal is available electronically. (jal) (Entered: 07/13/2015)
157 MOTION for Ayesha N. Khan to Withdraw as Attorney by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Khan, Ayesha) (Entered: 07/13/2015)
158 MOTION for Gregory M. Lipper to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1766431, Online Credit Card Payment.) by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Attachments: # 1 Attorney Admission Form, # 2 Certificate of Good Standing) (Lipper, Gregory) (Entered: 07/13/2015)
MOTIONS REFERRED: 157 MOTION for Ayesha N. Khan to Withdraw as Attorney to Judge Callie V.S. Granade. (tot) (Entered: 07/14/2015)
MOTIONS REFERRED: 158 MOTION for Gregory M. Lipper to Appear Pro Hac Vice referred to Judge William E. Cassady. (tot) (Entered: 07/14/2015)
159 REPLY Brief filed by Plaintiffs Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re: 151 Response in Opposition to Motion, 150 Response to Motion, 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law , 152 Response in Opposition to Motion in further support of Motion for Permanent Injunction and for Judgment as a Matter of Law filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (McCoy, Scott) (Entered: 07/14/2015)
160 ORDER, GRANTING 158 Motion for admission pro hac vice of Gregory M. Lipper. Signed by Magistrate Judge William E. Cassady on 7/15/2015. (mab) (Entered: 07/15/2015)
REFERRAL OF 159 Plaintiffs' Consolidated Reply to Defendants' Responses in Opposition to 142 Motion for Permanent Injunction and for Judgment as a Matter of Law to Judge Granade. (mab) (Entered: 07/15/2015)
161 ENDORSED ORDER granting 157 Motion to Withdraw as Attorney. Attorney Ayesha Khan terminated. Signed by Judge Callie V. S. Granade on 7/16/2015. (tot) (Entered: 07/16/2015)
162 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law Supplemental Authority −− Eighth Circuit cases (Marshall, Randall) (Entered: 08/12/2015)
REFERRAL OF 162 Notice of Filing Supplemental Authority to Judge Granade. (tot) (Entered: 08/12/2015)
163 ORDER, we construe Appellant's 7/14/15 Response to this Court's Order of 2/4/15 as a Voluntary Motion to Dismiss Appeal no. 15−10313 without prejudice. The Motion is Granted issued as MANDATE of USCA re: 31 Notice of Appeal −

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 32 of 34

09/08/2015 09/09/2015 10/02/2015 10/05/2015 10/19/2015 10/19/2015 10/20/2015
10/20/2015
10/26/2015 10/26/2015 01/07/2016

Interlocutory filed by Luther Strange, Mandate issued 8/20/15 ; USCA Case Number 15−10313−CC, (NOTE: USCA #15−12508 Strawser v. Tim Russell, Federal Question, PENDING.) (jal) (Entered: 09/02/2015)
164 MOTION for Zachary A. Dietert to Withdraw as Attorney by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Dietert, Zachary) (Entered: 09/08/2015)
165 ENDORSED ORDER, GRANTING 164 Motion of Zachary A. Dietert to Withdraw as Counsel. Signed by Judge Callie V. S. Granade on 9/9/2015. (mab) (Entered: 09/09/2015)
166 MOTION to Dismiss (as Moot) by Luther Strange. (Howell, Laura) (Entered: 10/02/2015)
REFERRAL OF 166 MOTION to Dismiss (as Moot) to Judge Granade. (tot) (Entered: 10/05/2015)
167 RESPONSE in Opposition re 166 MOTION to Dismiss (as Moot) filed by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 10/19/2015)
REFERRAL OF 167 Response in Opposition to Motion to Dismiss to Judge Granade. (tot) (Entered: 10/19/2015)
168 ORDER: Alabama Probate Judge Tim Russell appeals from the following three district court orders (1) the court's April 23, 2015 order denying Judge Russell's motion to dismiss; (2) the court's May 21, 2015 order denying Judge Russell's motion to alter or amend the order denying his motion to dismiss; and (3) the court's May 21, 2015 order granting a preliminary injunction that requires Alabama probate judges to issue marriage licenses to same−sex couples. To the extent that Judge Russell seeks review of the district court's April 23, 2015 order denying his motion to dismiss and the May 21, 2015 order denying his motion to alter or amend the order denying his motion to dismiss, this appeal is DISMISSED AS MOOT. In light of the record and Obergefell, the district court's May 21, 2015 order granting a preliminary injunction requiring the issuance of marriage licenses to same−sex couples is SUMMARILY AFFIRMED. See order for complete text. [7589079−2] (GBT, FMH and CRW) MANDATE of USCA re: 127 Notice of Appeal − Interlocutory filed by Tim Russell, Mandate issued 10/20/15 ; USCA Case Number 15−12508 (jal) (Entered: 10/21/2015)
169 ORDER: Petitioners have failed to show that interlocutory review of the district court's order certifying the defendant class is warranted. Accordingly, their petition for a permissive appeal is hereby DENIED. [7489238−2] (GBT, FMH and CRW) MANDATE of USCA re: 127 Notice of Appeal − Interlocutory filed by Petitioners, Mandate issued 10/20/15 ; USCA Case Number 15−90014 (jal) (Entered: 10/21/2015)
170 REPLY to Response to Motion 166 to Dismiss filed by Luther Strange. (Attachments: # 1 Exhibit A − Order of Dismissal (Aaron−Brush v. Bentley), # 2 Exhibit B − Order (Hard v. Strange, et al.)) (Davis, James) (Entered: 10/26/2015)
REFERRAL OF 170 Reply to Response to Motion to Dismiss to Judge Granade. (tot) (Entered: 10/26/2015)
171 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law Supplemental Authority −− January 6 Administrative Order (Attachments: # 1 Supplement Administrative Order) (Marshall, Randall) (Entered: 01/07/2016)

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 33 of 34

01/07/2016 01/15/2016 01/15/2016 02/19/2016
02/19/2016 03/07/2016
03/07/2016 04/07/2016
04/07/2016 06/06/2016
06/07/2016 06/07/2016
06/07/2016 06/07/2016 06/07/2016

REFERRAL OF 171 Notice of Filing Supplemental Authority to Judge Granade. (tot) (Entered: 01/07/2016)
172 ORDER of USCA as to 127 Notice of Appeal − Interlocutory filed by Tim Russell. Appellees' Motion to Transfer Consideration of Attorneys' fees on Appeal to the District Court is Granted. (15−12508, 15−90014), ref. Judge Granade. (jal) (Entered: 01/15/2016)
REFERRAL OF 172 USCA Order to Judge Granade. (jal) (Entered: 01/15/2016)
173 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law Notice of Supplemental Authority (Marshall, Randall) (Entered: 02/19/2016)
REFERRAL OF 173 Notice of Supplemental Authority to Judge Granade. (tot) (Entered: 02/19/2016)
174 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law Notice of Supplemental Authority (Attachments: # 1 Exhibit 1: Order −− Ex parte State of Alabama ex rel. Alabama Policy Institute, # 2 Exhibit 2: Certificate of Judgment) (Marshall, Randall) (Entered: 03/07/2016)
REFERRAL OF 174 Notice of Supplemental Authority to Judge Granade. (tot) (Entered: 03/07/2016)
175 NOTICE by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II re 166 MOTION to Dismiss (as Moot), 142 MOTION for Permanent Injunction MOTION for Judgment as a Matter of Law Supplemental Authority (N.D. Fla.) (Attachments: # 1 Exhibit Ex. 1 Brenner v. Scott Order Granting Summary Judgment) (McCoy, Scott) (Entered: 04/07/2016)
REFERRAL OF 175 Notice of Supplemental Authority to Judge Granade. (tot) (Entered: 04/07/2016)
176 MOTION for Richard B. Katskee to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1908748, Online Credit Card Payment.) by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Katskee, Richard) (Entered: 06/06/2016)
MOTIONS REFERRED: 176 MOTION for Richard B. Katskee to Appear Pro Hac Vice referred to Judge William E. Cassady. (tot) (Entered: 06/07/2016)
177 MOTION for Gregory M. Lipper to Withdraw as Attorney by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Lipper, Gregory) (Entered: 06/07/2016)
REFERRAL OF 177 MOTION for Gregory M. Lipper to Withdraw as Attorney to Judge Granade. (tot) (Entered: 06/07/2016)
178 ORDER re: 176 Motion for Richard B. Katskee to Appear Pro Hac Vice. Counselor Katskee is admitted pro hac vice as set out. Signed by Magistrate Judge William E. Cassady on 6/7/2016. (tot) (Entered: 06/08/2016)
179 ORDER DENYING Judge Don Davis' 130 Motion to Withdraw as Class Representative &for his Counsel to Withdraw as Class Counsel as set out; DENYING Attorney General Strange's 166 Motion to Dismiss as set out;

Case: 1:14-cv-424 As of: 06/29/2016 08:27 AM CDT 34 of 34

06/07/2016 06/08/2016 06/15/2016
06/15/2016
06/16/2016 06/16/2016 06/16/2016

GRANTING Plfs' 142 Motion for Permanent Injunction &Final Judgment as set out. Final Judgment will be entered by separate order. Signed by Senior Judge Callie V. S. Granade on 6/7/2016. (tot) (Entered: 06/08/2016)
180 JUDGMENT that Judge Don Davis, Judge Tim Russell &the members of the Dft Class are ENJOINED from enforcing Alabama laws that prohibit or fail to recognize same−sex marriage as set out. Signed by Senior Judge Callie V. S. Granade on 6/7/2016. (tot) (Entered: 06/08/2016)
181 Endorsed Order GRANTING 177 MOTION for Gregory M. Lipper to Withdraw as Attorney. Attorney Gregory M. Lipper terminated. Signed by Senior Judge Callie V. S. Granade on 6/8/2016. (tot) (Entered: 06/08/2016)
182 BILL OF COSTS by Keith Ingram, Albert Halloway Pigg III, James N. Strawser, Anna Lisa Carmichael, Brandon Mabrey, Kristy Simmons, Marshay Safford, Jennifer Ogle, Meredith Miller, Milton Persinger, Kristie Ogle, Gary Wayne Wright II, John E. Humphrey, Robert Povilat. (Attachments: # 1 Documentation of Costs) (Marshall, Randall) (Attachment 1 replaced on 6/15/2016) (tot). (Entered: 06/15/2016)
183 MOTION to Alter Judgment by Anna Lisa Carmichael, Albert Halloway Pigg III, John E. Humphrey, Keith Ingram, Brandon Mabrey, Meredith Miller, Jennifer Ogle, Kristie Ogle, Milton Persinger, Robert Povilat, Marshay Safford, Kristy Simmons, James N. Strawser, Gary Wayne Wright II. (Marshall, Randall) (Entered: 06/15/2016)
REFERRAL OF 183 MOTION to Alter or Amend Judgment to Judge Granade. (tot) (Entered: 06/16/2016)
Notice to Counsel: Pursuant to Civil L.R. 54(a)(3) objections to 182 Bill of Costs due by 6/29/2016, and reply is due seven (7) days after service of objections. (mab) Modified on 6/16/2016 (mab). (Entered: 06/16/2016)
184 Order re: 183 MOTION to Alter or Amend Judgment. Any response in opposition to the motion shall be filed no later than June 29, 2016. Reply due no later than July 6, 2016. Signed by Senior Judge Callie V. S. Granade on 6/16/2016. (mab) (Entered: 06/17/2016)

 
 Cite as: 574 U. S. ____ (2015)

1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________
No. 14A840
_________________
LUTHER STRANGE, ATTORNEY GENERAL OF ALABAMA, v. CARI D. SEARCY, ET AL.
ON APPLICATION FOR STAY
[February 9, 2015]
The application for stay presented to JUSTICE THOMAS and by him referred to the Court is denied.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting from denial of the application for a stay.
The Attorney General of Alabama asked us to stay a federal injunction preventing him from enforcing several provisions of Alabama law defining marriage as a legal union of one man and one woman pending our consideration of Obergefell v. Hodges, No. 14–556; Tanco v. Haslam, No. 14–562; DeBoer v. Snyder, No. 14–571; and Bourke v. Beshear, No. 14–574. Those cases are scheduled to be argued this Term and present the same constitutional question at issue here: Whether the Fourteenth Amendment requires States to recognize unions between two people of the same sex as a marriage under state law.
When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requiring a city to remove its religious memorial). Although a stay is not a matter of right, this practice reflects the particularly strong showing that States are often able to make in favor of such a stay. Because States are required

2

STRANGE v. SEARCY

THOMAS, J., dissenting
to comply with the Constitution, and indeed take care to do so when they enact their laws, it is a rare case in which a State will be unable to make at least some showing of a likelihood of success on the merits. States also easily meet the requirement of irreparable injury, for “ ‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’ ” Maryland v. King, 567 U. S. ___, ___ (2012) (slip op., at 2–3) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws.
It was thus no surprise when we granted a stay in similar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, 573 U. S. ___ (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.
This application should have been treated no differently. That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser v. Marie, ante, p. ___, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of

Cite as: 574 U. S. ____ (2015)

3

THOMAS, J., dissenting
Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.
Yet rather 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, 570 U. S. ___ (2013) (slip op., at 25–26). 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.
Today’s decision represents yet another example of this Court’s increasingly 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. See, e.g., Maricopa County v. Lopez-Valenzuela, 574 U. S. ___, ___ (2014) (slip op., at 2) (THOMAS, J., joined by SCALIA, J., respecting denial of application for stay) (collecting cases). It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
I respectfully dissent from the denial of this application. 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.