Alabama Supreme Court Orders Briefing on Mandamus Petition Seeking to Halt Same-Sex Marriages

Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).

Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:

“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. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”

Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:

“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 on the constitutionality of the ministerial acts a probate court performs, 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.”

Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”