Last week, the Alabama Supreme Court entered an order enjoining Probate Court Judges from issuing marriage licenses for same sex couples. In a 148 page per curiam opinion, in which 6 Justices approved the opinion, one concurred, one dissented (based on jurisdictional grounds) and Justice Moore apparently recused himself, the Court found, among other things, that “confusion reigns” in Alabama concerning SSM, that Alabama’s law defining marriage as between a man and a woman does not violate the Unites States Constitution, that “…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. Marriage demonstrably channels the results of sex between member of the opposite sex—procreation—in a socially advantageous manner”, and “[i]n 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.”
The United States Supreme Court has officially scheduled oral argument on the issue of SSM on April 28, and is expected to issue a decision in June. Hopefully, the SCOTUS’ decision will resolve the issue in Alabama.
Practice pointers: Confusion still reigns in Alabama, especially in Mobile, where US District Court Judge Granade is still actively involved in a case involving the Mobile County Probate Judge. Questions remain as to the validity of the SSM licenses issued before the Supreme Court enjoined the issuance of any additional licenses. At least one same sex couple adoption took place, and the validity of that adoption remains an issue. I anticipate additional action taken by Judge Granade, as well as other US District Court judges around the state as additional lawsuits have already been filed requesting that the Federal Courts order Probate Judges to issue same sex marriage licenses. These issues will not be resolved until June, and maybe not even then.