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 samesex 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.

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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.

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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 

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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). 

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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

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