Federal Judge Orders Mobile, Ala. Official to Issue Marriage Licenses to Homosexual Couples

(Press-Register file/Mary Hattler) Mobile Probate Court Judge Don Davis
(Press-Register file/Mary Hattler)
Mobile Probate Court Judge Don Davis

A federal judge in Mobile on Thursday ordered Mobile County Probate Judge Don Davis to start granting marriage licenses to gay couples, and he immediately took steps to do just that.

The ruling came shortly after U.S. District Judge Callie V.S. “Ginny” Granade heard from lawyers of gay couples who had not been able to get marriage licenses in Mobile this week.

Granade laid out specific reasons why the plaintiffs want to get married, including health problems by Mobile resident James Strawser, who wants his partner, John Humphrey, to have full spousal authority to make medical decisions should he become incapacitated.

“Plaintiffs’ inability to exercise their fundamental right to marry has caused them irreparable harm that outweighs any injury to defendant,” the judge wrote. “Moreover, the Plaintiffs in this case have submitted declarations attesting to the specific reasons why their inability to become legally married in Alabama presents a substantial threat of irreparable injury.”

Read the order here.

Davis had kept the marriage license office closed since Monday, when Granade’s ruling striking down the state’s ban on same-sex marriage was to go into effect. He is one of dozens of probate judges who cited Alabama Supreme Court Chief Justice Roy Moore’s administrative order on Sunday instructing probate judges not to issue marriage licenses to same-sex couples.

Attorneys for the plaintiffs asked for an order that applies broadly — not just to the one official named in a lawsuit.

A lawyer for Davis said his client was not taking a position, only looking for guidance. He depicted Davis as a hapless official trapped between two courts.

Granade, who started three weeks of legal wrangling with her ruling last month striking down Alabama’s ban on same-sex marriage, did not immediately indicate how or when she would rule. But she issued the written order within the hour.

The lawyers for the plaintiffs asked Granade to compel Davis to comply with her constitutional ruling and to specifically declare that Moore’s order, in the words of lawyer Randall Marshall, “has no validity.” Granade’s decision made no comment on Moore’s order.

Mike Druhan, a lawyer for Davis, compared the probate judge’s position to that of a Vietnam War soldier.

“I think Judge Davis is like a rifleman in a rice paddy in Vietnam who steps on a mine,” said Druhan, adding that the soldier would be shot by a sniper if he stays and blown to bits by the mine if he moves. “He has expressed no opinion, none of the characterizations that have been made.”

Druhan told the judge that if she issues an order, Davis will review it and take the “appropriate” action. Asked outside the courtroom if there is a conceivable scenario under which Davis would not obey a federal court order, Druhan said, “I don’t know that he’s made a decision.”

Druahan also had no comment about whether the Supremacy Clause makes it clear that federal courts win when there is a conflict with a state court. “I personally have not researched that.”

David Kennedy, an attorney for some of the plaintiffs, said outside the courtroom that he found that position “troubling,” but added that based on his experience practicing in front of Davis that the probate judge would comply with a federal order.

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Brendan Kirby

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