Developments in the Alabama Same-Sex Marriage Litigation Ahead of Tomorrow's Federal Court Hearing

As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.

This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:

There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.

According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.

And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).

As always, stay tuned. You can find copies of important rulings and documents here.