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Federal Judge 'Once Again' Tells Ala. to Let Gay Couples Marry

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By Mark Wilson, Esq. on February 13, 2015 9:57 AM

Same-sex marriage remains a thorny issue in Alabama, where on January 23, U.S. District Judge Callie V.S. Granade found Alabama's same-sex marriage prohibition unconstitutional. In response, Alabama Supreme Court Chief Justice Roy Moore went on a memoranda rampage, first opining that Granade had no authority to override Alabama state law.

In a second memo issued earlier this week, Moore flat-out ordered state probate judges not to issue marriage licenses to same-sex couples. Some judges complied with Granade's order, but many more complied with Moore's by refusing to issue any marriage licenses to anyone at all, under the guise of awaiting further guidance.

Once More, With Feeling

Granade's not that pleased. Four plaintiffs filed an emergency motion for a preliminary injunction against Judge Don Davis, probate judge of Mobile County, Alabama. These four same-sex couples wanted to get married in Mobile County, but found the office closed. Davis issued a press release Monday saying that there would be no marriage licenses issued until the court received guidance from Moore and the district court.

That guidance is here: Granade "once again" declared Alabama's same-sex marriage ban unconstitutional and enjoined Davis from refusing to issue marriage licenses due to a couple's same-sex status.

As Emily Bazelon recently pointed out in The New York Times Magazine, orders of federal district judges aren't necessarily precedential until affirmed by a federal court of appeals or a state supreme court. Both the Eleventh Circuit and the U.S. Supreme Court, however, passed on the opportunity to overturn, or even stay, Granade's order. That most likely amounts to a ratification of the order, making it binding.

The fact that Moore, in his individual capacity, happens to think that "state sovereignty" overrides federal law means only that he's channeling the ghost of John C. Calhoun. Absent an official proclamation from the Alabama Supreme Court, Moore's opinion isn't binding (and when he issued that order Sunday night, onlookers weren't sure how he was supposed to enforce it).

Doubling Down on Crazy

Moore isn't trying to alleviate the confusion. In an op-ed in USA Today Tuesday, he reiterated his incorrect legal opinion that "[d]ecisions of [federal trial and appellate] courts may be highly persuasive, but they are not binding upon state courts."

Moore also engaged in a conversation with CNN anchor Chris Cuomo on Wednesday, when Moore claimed, "Our rights do not come from the Constitution, they come from God." Cuomo, who's also an attorney, responded, "Our laws do not come from God, and you know that."

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