Alabama District Judge Declares State's Same-Sex Marriage Bans Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a ten page Opinion and Order late Friday in Searcy v. Strange, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.

Judge Granade found that Baker v. Nelson (1972) did not operate as a binding precedent. 

She also mentioned that the Eleventh Circuit had not yet ruled on the issue and in footnote 1 acknowledged that the United States Supreme Court had granted certiorari on the issue.

She found that marriage is a fundamental right:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399,  of privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851 (1992).

She articulated that laws that "implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest."  She considered Alabama's asserted interest of "protecting the ties between children and their biological parents and other biological kin," and concluded that the means chosen - excluding same-sex couples - was not narrowly tailored:

The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states. The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.

Judge Granade continued: "If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children."

Judge Granade's opinion does briefly discuss the equal protection standard for reviewing sexual orientation classifications.  But given her conclusion regarding fundamental right meriting strict scrutiny, the opinion does not contain an extensive or rigorous distinction between the Equal Protection Clause and Due Process Clause analysis. 

Judge Grande's Order ruled on cross motions for summary judgment, enjoined the state from enforcing the same-sex bans, and did not contain a stay.

One would assume that the attorneys for Alabama are drafting their stay petitions.

UPDATE: On Sunday, January 25, 2015, Judge Granade issued her Stay Order granting a stay until February 9, 2015.  The judge found that the State did not warrant a stay under the standards, but

In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.