Experts question probate judge association's same-sex marriage claims

Brian Lyman
Montgomery Advertiser

Legal experts said Monday they saw no legal basis for the Alabama Probate Judges Association's statement that their members could not issue marriage licenses to same-sex couples.

U.S. District Judge Callie V.S. Granade Friday struck down the state's ban on gay marriage, saying it unconstitutionally discriminated against same-sex couples. The lawsuit, Searcy v. Strange, involved Cari Searcy and Kimberly McKeand, a couple who married in California and who were attempting to have Searcy adopt McKeand's son in Mobile County.

In a statement late Saturday, the Alabama Probate Judges' Association said the state's probate judges would not have to issue marriage licenses if the decision went into effect Monday. Attorneys for the group argued that Granade's decision only extended to Searcy and McKeand and their adoption attempt, and not to the broader question of marriage.

"The legal effect of this decision is to allow one person in one same sex marriage that was performed in another state to adopt their partner's child," Al Agricola, an attorney for the association, said in a statement. "There is nothing in the judge's order that requires probate judges in Alabama to issue marriage licenses to same sex couples."

Reached by phone Monday, Agricola deferred to his weekend statement. Greg Norris, the Monroe County Probate Judge and president of the association, said the association -- whose statement is not legally binding on its members -- said the group was following advice from legal counsel, and was not "ideological or philosophical."

"We are bound by duty, and the probate judges I know are going to follow the law as close as we can," he said.

Granade issued a 14-day stay of her decision Sunday, and the Alabama attorney general's office Monday filed a notice of appeal with the 11th Circuit Court of Appeals.

The association's statement drew criticism from pro-gay rights groups, including the Human Rights Campaign and the Southern Poverty Law Center. Montgomery County Probate Judge Steven Reed said he would issue marriage licenses Monday, barring a stay.

Legal experts Monday said they found the probate judges' stand problematic.

"When a federal court rules that a law is unconstitutional, it means it can't be enforced," said Elizabeth Cooper, a professor at the Fordham University School of Law in New York. "A refusal by the probate judges to marry same-sex couples would be enforcing an unconstitutional law."

Both Cooper and Evan Gerstmann, a political science professor at Loyola Marymount University in Los Angeles, were equally skeptical of the argument that not being a party to the lawsuit excluded the probate judges from its impact.

"The idea that you're not required to follow what the law is if you're not a party to a lawsuit would create chaos," Gerstmann said. "It's not a strong argument at all."

Gerstmann added that if the stay were lifted and the judge's ruling stood, probate judges who refused to issue licenses would be exposing themselves to legal action. Carl Tobias, a professor of law at the University of Richmond, said the probate judges' stance was similar to the recent Florida case legalizing same-sex marriage there, where clerks argued -- ultimately unsuccessfully -- that the decision was only binding on the county that the initial lawsuit concerned.

Granade's decision, Tobias said, meant "the statute and the amendment are unconstitutional. All state officials have an obligation to follow a federal ruling of unconstitutionality."

Jesse Choper, a professor at UC Berkeley School of Law, agreed, saying that if Granade's decision stood, and if a probate judge refused to grant a marriage license to a couple, "it seems to me they're in violation of their oath to uphold the U.S. Constitution."

In a separate case, Granade Monday issued -- and then stayed -- a preliminary injunction on Alabama's ban on same-sex marriage. The case, Strawser v. Strange, involves James Strawser and John Humphrey, a Mobile couple. According to Granade's decision, Strawser, who faces potentially life-threatening surgery, wanted to give power of attorney to Humphrey to assist his mother should he not survive the procedure. The hospital told the couple that power of attorney would not be honored, because Humphrey was not legally Strawser's spouse.

Strawser and Humphrey sued, arguing their rights under the Due Process Clause and Equal Protection Clause of the 14th Amendment had been violated. Granade, following her opinion in the Searcy case, agreed, but stayed the decision to allow the state to pursue an appeal.