Posted by Curt on 11 February, 2015 at 6:11 pm. Be the first to comment!


Gabriel Malor:

Setting aside for a minute whether the courts should be ruling on marriage bans and, if so, whether such bans are unconstitutional, this Byron York column has five premises and a kicker faulting a whole bunch of people down in Alabama. But three of the premises are flat wrong, and so is the thrust of the piece.

In some press reports, it’s the 1960s all over again in Alabama. Fifty years after George Wallace stood in the way of civil rights, a new Wallace, in the person of State Supreme Court Chief Justice Roy Moore, is standing in the way of gay rights with a move to defy a federal judge’s order legalizing gay marriage. But the current, very temporary, impasse over marriage in Alabama is not the 1960s at all, but rather a screw-up of epic proportions -the combined effect of 1) a badly-designed lawsuit; 2) an overreaching federal judge; 3) an overreaching state Supreme Court chief justice; 4) a pair of misguided and misdirected court rulings; and 5) a state full of confused county officials. The kicker to the story is that the problem will be mostly, if not fully, resolved in a day or two, and besides, the U.S. Supreme Court will settle things not only for Alabama but the rest of the nation in June.

Go ahead and read the whole thing. York’s off the rails, though.

First, York lampoons the plaintiff gay couples for “a badly-designed lawsuit.” According to York, they should have sued the probate judge and not AG Strange. In fact, they did sue the probate judge. You can see their complaint here (PDF). The defendants included Don Davis, the Judge of Probate for Mobile County. (Davis later had the complaint dismissed as to himself on judicial immunity and lack of remedy grounds, since ‘at that time’ the underlying adoption case had a different legal posture.) AG Strange continued to defend the state marriage ban.

Second, York blasts federal district court judge Granade for issuing the order at all, since the Supreme Court could possibly resolve the issue by the end of June. I say “possibly resolve,” because the Supreme Court may, on the other hand, not resolve things this term. Abatement is not the proper remedy in such a situation. Notably, the Fifth Circuit is likely to soon rule on the marriage bans before it too. And, of course, the whole Alabama situation resulted after the Supreme Court declined to stay Granade’s ruling pending a decision at the Supreme Court.

Third, York also slams Granade for ordering AG Strange to issue marriage licenses to gay couples. In fact, the judge issued no such order. I’m not sure where York got that idea. The order, which you can see here at Dkt. No. 54 (PDF) enjoined the AG from enforcing the marriage ban because it was unconstitutional. The order did not require the AG to issue licenses, which I agree with York would have been a mighty odd order.

Read more

0 0 votes
Article Rating
Would love your thoughts, please comment.x