Same Sex Marriage: Civil Right or State Right?

Episode Notes

Transcript

Lawyer 2 Lawyer: Same Sex Marriage: Civil Right or State Right? – 3/10/2015

 

Advertiser: The notion that people who are ready to marry, that their marriage will be revoked in some natural way by the Supreme Court Order, would be truly outrageous. Outside of the jurisdictional, just one federal judge, is that marriage is the union of one man and one woman. That has not been validated statewide and these probate judges do not have the discretion to go around and follow the decisions of accord that do not bind them.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from Boston, Massachusetts, where I practice law and I also write a blog called Lawsites. My co host, J. Craig Williams, is not able to be with us for this show. Before we get into today’s topic let me just take a moment to thank our sponsor. Our sponsor is Clio, the online practice management program for lawyers. You can find out more about Clio at www.GoClio.com. And also, a quick plug for the Legal Talk Network, the hosts of this show. They’ve done a really great series of special reports from the ABA Meeting recently down in Houston, where they had 32 different interviews with leaders from the ABA discussing their various divisions, committees and programs. It’s good listening, so check that out at the Legal Talk Network. We’re here today to talk about what we might call a showdown in Alabama over same sex marriage. As we’re recording this, the Alabama Supreme Court just yesterday issued orders to probate judges to stop issuing marriage licenses to same sex couples. Of course, that comes on the heels of a federal district court ruling not long ago that struck down a ban in the Alabama Constitution on same sex marriage. The district court ruling is on appeal to the Eleventh Circuit. We have the Alabama Supreme Court weighing in yesterday, telling judges not to re grant licenses for same sex marriages. So it’s a little bit of a mses, I guess. And so we’re going to try and make some sense of that today with 3 different guests who are going to help us look at this topic. So let me introduce them and get the discussion going. First off, let me introduce Harry Mihet. Harry is vice president of legal affairs and chief litigation counsel for Liberty Counsel, an international nonprofit organization dedicated to advancing religious freedom, the sanctity of life, and the family. Since joining them in 2008, Harry has participated in many critical issues, including the defense and passage of Florida’s Marriage Amendment, and the defense of individuals charged with contempt for prayer. Welcome to Lawyer 2 Lawyer, Harry Mihet.

 

Harry Mihet: Thank you for having me with you today.

 

Bob Ambrogi: Thanks for being here. Let me next introduce Elliot Mincberg. Elliot is a Senior Fellow at People For the American Way, where he helps guide and oversee their work on religious liberty, separation of church and state, and other constitutional law issues. Prior to that, he was a senior vice president, general counsel, and legal director. In addition, he has served as Chief Counsel for Oversight and Investigations at the House Judiciary Committee and Senior Counsel and General Deputy Assistant Secretary for Congressional and Intergovernmental Relations at the Department of Housing and Urban Development. Welcome to Lawyer 2 Lawyer, Elliot Mincberg.

 

Elliot Mincberg: Thanks, pleasure to be here.

 

Bob Ambrogi:  And finally we have joining us from the University of Alabama School of Law, Professor Ronald Krotoszynski. Professor Krotoszynski teaches courses in Constitutional Law, the First Amendment, and Federal Civil Rights. He is clerk for the Honorable Frank M. Johnson in the US Court of Appeals for the Eleventh Circuit and has written or been featured in articles in The Washington Post, The New York Times, The Huffington Post, and The Wall Street Journal and various other publications. Welcome to Lawyer 2 Lawyer, Professor Krotoszynski.

 

Professor Ronald Krotoszynski: Good to be with you, Bob.

 

Bob Ambrogi:  I’m not sure quite where to start with this, but I think maybe we start with the most recent news and work backward, maybe we go the other way. Professor Krotoszynski, would you be able to give us an update on what happened yesterday with the Alabama Supreme Court?

 

Professor Ronald Krotoszynski: Sure. The Alabama Supreme Court and a per curiam decision found that judge Granade’s constitutional reasoning was unpersuasive and issued an opinion finding that the federal constitution does not require the state to recognize same sex marriages, whether on the basis of equal protection or due process, and has enjoined the state’s probate charges from continuing to issue such licenses. The court has given the probate judges five days to show cause why they shouldn’t be done by the injunction, and has specifically asked Don Davis, who was previously the subject of an injunction from Judge Granade requiring him and his principal officers to grant same sex marriage licenses to show cause why he shouldn’t be banned by this order as well. It pretty much squarely puts the Supreme Court of Alabama in opposition to the decision of the federal district court down in Mobile.

 

Bob Ambrogi:  Let’s hear from our panel here a little bit about what they think of this. Harry Mihet, let’s start with you, what’s your take on the Alabama Supreme Court ruling yesterday?

 

Harry Mihet: Well Liberty Counsel was the law firm that represented the plaintiffs at the Alabama Supreme Court. We drafted and filed the petition for recommendation that led to yesterday’s decision. Obviously, we are very pleased; we believe it was a great day for the constitution and the rule of law, and we think that the opinion that was issued by the court yesterday is one of the most well-reasoned and well-researched opinions on the subject of marriage to date. I have to disagree a little bit with the professor on whether or not it is on a collision course with the federal judge Granada’s orders because her jurisdiction was limited to only the parties before her, none of whom was a probate judge. And so none of the probate judges in Alabama are bound by her order. All of them are now bound by the Supreme Court of Alabama’s order, which prohibits the issuance of same sex marriage licenses. We don’t think Judge Granade would have jurisdiction over anyone outside of her case of controversy or outside of her geographical jurisdiction. And indeed, she has the knowledge that by refusing or rejection applications for content that had been brought forth.

 

Bob Ambrogi: Elliot Mincberg, let me hear from you before we go back to Professor Krotoszynski on that.

 

Elliot Mincberg: Well, you’ll not be shocked to learn that I disagree with Harry. I think the decision is extremely troubling on a range of reasons, whether the court really had the jurisdiction to do that, the fact that there wasn’t any advocacy from anybody who supports same sex marriage in front of them when they issued the decision. And the fact that in essence it contradicts not just the federal district court, but also the Eleventh Circuit and the Supreme Court, which refuse to stay the district court decision, despite the dissenting of justices Scalia and Thomas. I do think that the one probate judge who is the most endowed after this decision – because I think it’s very clear that most probate judges do not have a direct order to the contrary – is the probate judge in Mobile, who in fact, asked the court to let him out because he perceives that he does have a contradictory order against him from the federal court that is in that area. And that will still need to work itself out over the next couple of days. It’s also quite possible that a couple seeks to get married in another county in Alabama and when they refuse, they bring yet another federal court lawsuit, which would create a collision again. Hopefully, all of this will be resolved, certainly between now and the end of June when the Supreme Court rules on the bigger issue. But I do think that there is a great deal of uncertainty in Alabama due to this really unprecedented and very troubling decision by the Alabama Supreme Court.

 

Professor Ronald Krotoszynski: I called up the order quickly, perhaps Harry didn’t see it, but I’m quoting an order, an injunction issued on the 12th day of February by Callie vs. Granade. It reads: Probate Judge Jon Davis is, in all caps, bold, enjoined from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. And it continues: This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same sex marriage, done in order this twelfth day of February 2015. I’ve got a link, I’d be happy to send it to you or your lawyers if you missed it, but I don’t see how one argues that Don Davis isn’t subject to an injunction.

 

Bob Ambrogi: What does that mean?

 

Professor Ronald Krotoszynski: Judge Granada is the district judge in Mobile who issued the initial ruling in January requiring recognition of same sex marriage as an aspect of equal protection and due process guarantees.

 

Bob Ambrogi: What about for the rest of the probate judges out there, Professor Krotoszynski? Where does this leave them between their Supreme Court and a federal district court?

 

Professor Ronald Krotoszynski: Between a rock and a hard place. I think there are 8 counties in the southern district of Alabama. Because this would be related litigation, if someone were denied a marriage license by any of those probate judges, I think it’s pretty clear that they could go to the southern district, check the box for related litigation, and obtain a similar injunction of the sort that’s run against Don Davis and his staff. It is certainly true that the middle district and the northern district haven’t spoken to this question; and it’s possible that a federal judge in the middle or northern district would take a different view. But as Elliot noted, because the Eleventh Circuit denied a stay and because the Supreme Court also denied a stay of judge Granade’s initial order in January, which was very unusual. It’s true that that’s not a merit’s opinion, but when a state law is declared unconstitutional, as Justice Thomas noted in his dissent of the denial of the stay, its virtually automatic. No state government has a right to the stay of the order pending a pellet review of the decision invalidating the state law. So the Eleventh Circuit and the Supreme Court both denied the stay. Now it’s not a merit’s opinion, but I agree with Elliot that it’s a pretty good indication of where the Supreme Court is likely to come out. So in those 8 counties, I don’t think there’s much of a question that a federal court order could be obtained pretty quickly and the rest of the state is more ambiguous. But you do know, that in Alabama, you don’t have to pull a marriage license from the county of your residence. So long as Don Davis is issuing same sex marriage licenses, we have same sex marriage statewide in Alabama.

 

Bob Ambrogi: So Harry, why does this matter right now? We’ve got this issue heading to the Supreme Court. Why is what’s happening in Alabama important from your perspective?

 

Harry Mihet: Well let me just say that with respect to Don Davis, he was only required to issue the four licenses to the plaintiffs that were before the court in that particular case. The terms of the order that the professor has just read, plainly require him to do just that and only that, and indeed, the federal court has no jurisdiction to require him to provide the relief to parties that are not before the court. So even Don Davis is no longer subject to any court order the time, as are none of the other probate judges in Alabama. I should say actually, they are subject to an order and that’s the order of the Supreme Court, require of prohibiting them from issuing same sex marriage licenses. So there is no confusion in Alabama. The law is crystal clear, the constitution of Alabama, the law of Alabama, and now the Supreme Court of Alabama. All of them require that the marriage be upheld, it’s just the union of one man and one woman. This is important to answer your question because it goes to the rule of law. We are still a nation of law. The Alabama citizens are still governed by the rule of law, and the law that is still in effect in Alabama outside of the jurisdiction outside of this one federal judge is that marriage is the union of one man and one woman. That has not been invalidated statewide, and these probate judges do not have the discretion to go around and to follow the decisions of courts that do not bind them. For that, they could just as easily go around and follow the decisions of the court that have upheld natural man-women marriage, and there are plenty of those at both the lower court and the appellate level. They don’t have that discretion. Their duty, their sworn duty is to the people of Alabama and to their constitution and now that has been made clear by this Supreme Court’s ruling.

 

Bob Ambrogi:  Elliot, what about from where you stand? ON the national scale, is this kind of a sideshow in the same sex marriage debate, or is this an important issue

 

Elliot Mincberg: Well it’s definitely a bump in the road, no question about that. I do have a concern because unfortunately, as we know from the days of discrimination and segregation, there is unfortunately a history in Alabama of refusing to go along with even direct orders of federal courts that are suspect to desegregation, et cetera. And so there is some concern with that and I have a good deal of concern for folks in Alabama, including the probate judges who are undoubtedly quite confused. Although the professor and Harry are disagreeing, even Harry, I hope, would agree, that if another federal judge ordered another same sex couple to be able to get married somewhere else based on judge Granade’s ruling, that would be something that ought to be obeyed and ought to be obeyed immediately. Hopefully that won’t happen, hopefully this will be able to be worked out, but I do think that the Alabama Supreme Court decision is troubling. The key question, though, will be what ruling will the Supreme Court ruling make, and will it make a ruling nationwide as we hope it will that there is a federal constitutional right to same sex marriage; a decision that many in Alabama won’t like anymore than they liked the rulings that school segregation was unconstitutional.

 

Bob Ambrogi:  We need to take a short break, stay with us. We’re going to continue this discussion after just a few words from our sponsor. We’ll be right back.

 

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and with me today is Mr. Harry Mihet from Liberty Counsel, Mr. Elliot Mincberg from People for the American Way, and Professor Ronald Krotoszynski from the University of Alabama School of Law. I’m wondering, Professor Krotoszynski, whether you think that this issue is going to be resolved in Alabama of its own volition, so to speak, or is it going to take something from the Supreme Court. Is this going to continue to play out over the coming months until we have some more definitive ruling from a higher court?

 

Professor Ronald Krotoszynski: Well one point in which I think Harry and I will agree is that judge Granade has no authority to review the Alabama Supreme Court’s decision, nor does the Eleventh Circuit. There is collateral review of state court judgements, for example, in the context of habeas corpus, but that’s not applicable here. If there were to be a stay of the Alabama Supreme Court’s decision in a varying junction, it would have to come from the Supreme Court of the United States. And if a probate judge, for example, Alan King in Birmingham, Jefferson County, did not want to comply with the Alabama Supreme Court’s order, his course of action would be to seek an emergency stay from the Supreme Court. I wouldn’t want to venture a gaseous to the probability of that stay issuing, but if a probate judge wanted to continue issuing same sex marriage licenses without risking contempt sanctions from the Supreme Court, the avenue of relief would have to be the federal Supreme Court. One other observation I guess I would have is that we’ve had five court of appeals answer this question; fourth, sixth, seventh, ninth, tenth. Four of them have ruled as judge Granade did, one ruled as the Alabama Supreme Court did. In every state within the jurisdiction of these five courts of appeals, the state judiciaries have extended comedy and recognized the binding nature of the court of appeals decision on a voluntary basis. For example, in Michigan – which is in the Sixth Circuit – we haven’t seen someone file petition asking Michigan to disagree with the Sixth Circuit and to order local officials in Michigan to issue same sex marriage licenses. I supposed on the same theory Alabama has done it, you can see intransigence with respect to the Sixth Circuit’s ruling. The problem with this is that the whole system of dual courts requires a degree of comedy. Federal courts extend comedy through state court proceedings, through things like younger obstinction, preferred obstinction, and as a practical matter, most of the time state courts reciprocate. This is a very unusual kind of decision by a state Supreme Court. I’m not saying it’s unconstitutional, they’re entitled to make it, but if every state Supreme Court acted as Alabama’s did, it would be conducive of chaos.

 

Bob Ambrogi:  And Elliot Mincberg, I’m curious, I thought i heard you say earlier in the broadcast that you were hopeful that this matter would be resolved in Alabama before June, before the Supreme Court – before the US Supreme Court is likely to rule on this. Did I hear you right, and if so why is that?

 

Elliot Mincberg: I’m hopeful but I wouldn’t say I’m optimistic for exactly the reasons that the professor just talked about. Probate judges really are between a rock and a hard place. Again, I do think the judge in Mobile may be in a different position because he is, arguably, under the order from Judge Granade and that will have to be sorted out. But frankly, I think it is unfortunately quite possible in Alabama that between now and when the Supreme Court rules, we will have this Alabama Supreme Court decision, plus, perhaps, additional federal court decisions along the lines the professor talked about ordering particular probate courts to marry particular same sex couples. That would be a shame if it were to happen, but unfortunately, I think it has to be laid squarely at the door of what the professor rightly pointed out was really unprecedented and I think extremely troubling action by the Alabama Supreme Court. All this makes the Supreme Court decision very important, and at least the Alabama Supreme Court seems to suggest it would obey that opinion, although even that, unfortunately, I don’t think we can take for granted.

 

Bob Ambrogi:  One question I have is about the state of the licenses that have actually been issued in Alabama; I understand there have been some issued. What happens to those?

 

Professor Ronald Krotoszynski: In every jurisdiction where this has occured, California, for example, Michigan; the licenses that were issued had been left in effect. I would assume that would be the same case here, although, I suppose that question would ultimately have to be decided by the courts. But California had same sex marriage that was then ended through a plebiscite the state Supreme Court took the view that those marriages were valid. Michigan had the same situation where the district court judge ordered same sex marriage in Michigan, the court of appeals reversed. The state government recently said that those marriages are valid. The precedence that we have recently on this question would seem to suggest that those marriages are valid, but that would be a question that would have to be litigated; the Supreme Court doesn’t speak to that precise question.

 

Harry Mihet: I would argue that it does because both the law and the constitution of Alabama not only prohibits its judges from issuing same sex marriage licenses, they also prohibit the state from recognizing same sex marriages. And the law that the Supreme Court ordered to be upheld and enforced yesterday was that entire law and so at this time in Alabama, marriage is only the union of one man and one woman. I think despite the confusion that my two friends here today are trying to paint in Alabama, the situation is resolved and there is no confusion. The probate judges have already come out and said that they will comply with the Supreme Court order. It is the only order that binds them prospectively. Even Judge Don Davis no longer has any obligations towards the federal court because that jurisdiction is exhausted and complete. So there is no confusion and there should be no more controversy. Alabama has spoken on the issue of marriage.

 

Elliot Mincberg: I thought what earlier happened with the Alabama Supreme Court was outrageous, but this would truly be more outrageous. The notion that people who have already been married, that their marriages would be revoked in some natural way by the Supreme Court order would be truly outrageous and I have to hope that that will not happen. But with respect to the judge in Mobile, Judge Davis, he in fact responded to this order by saying he will not issue marriages to anybody until this all gets cleared up. So to suggest that there is no confusion in Alabama unfortunately is just not true.

 

Bob Ambrogi:  You mean he’s not even for mixed sex couples, he’s not issuing them period.

 

Elliot Mincberg: According to what I read about a half an hour before joining this broadcast, that is what he has said for now. And I don’t blame him because he is truly between a rock and a hard place until this gets a little bit clarified.

 

Bob Ambrogi: Harry Mihet, are there implications of the Alabama Supreme Court ruling for other issues in family law such as adoption by same sex couples?

 

Harry Mihet: Sure, the Supreme Court in its well-reasoned opinion yesterday spent a lot of time talking about the fact that Alabama’s marriage laws do not strictly apply to who  can get married but to a whole host of other things that take place in society and culture by virtue of marriage and through marriage; and all of those things are impacted dramatically in one way or another. But for now, the public policy of Alabama remains that every child deserves to have both a mother and a father and the public policy of the state of Alabama is that marriage is reserved between a man and a woman. It does have some reaching implications just like authoring or interfering with the definition of marriage does as well.

 

Bob Ambrogi: So I want to ask you all if you care to venture as to how this issue will be decided by the Supreme Court. I realize you all have strong feelings about how you hope it’s going to come out, but what do you think might realistically happen? Professor Krotoszynski, let’s start with you.

 

Professor Ronald Krotoszynski: Well, I’m a law professor, I’m not an advocate; I don’t have a client in this matter. I guess I would just observe what I see other lower courts doing and if you count the number of state and federal judges who had to decide this question since Windsor, the overwhelming majority – I mean dozens and dozens versus I think six or seven, net – have concluded that the logic of Windsor requires states to recognize same sex marriages. Indeed, I would point to Justice Scalia’s dissenting opinion in Lawrence, where he cites the Ontario Halpern case and says the reasoning of Lawrence will lead my direct road to same sex marriage and his dissenting opinion again in the Windsor case, in which he says the logic of the majority’s opinion requires recognition of same sex marriage. So if you look at the way lower federal court and state court judges have been deciding this question post-Windsor, and use Justice Scalia’s quite thoughtful dissenting opinions as a guide or a roadmap, the prediction would be something like a five four decision in favor of equal protection claim. The court can do as it pleases, of course, but if I were to lay a bet on even money terms, my bet would be on a five four decision, probably with Justice Kennedy riding. He’s written every major Supreme Court opinion involving the rights of sexual minorities.

 

Bob Ambrogi: Harry, where are you putting your money?

 

Harry Mihet: I would say this: in order for the Supreme Court to design a fundamental right to same sex marriage under either equal protection or due process, the court would have to – consistent with its well-established recruitm to date – the court would have to find either that the rights to same sex marriage is enumerated in the constitution, which it is clearly not, or that it is deeply rooted in our concept and history of ordered liberty, which it clearly is not. In fact, until 2003, the homosexual act itself was outlawed in many jurisdiction. So all that to say exists, there is no way that the Supreme Court can legitimately design a fundamental right to same sex marriage, and to do so, that decision would be arbitrary. It would, in my view, be legitimized – the authority of the Supreme Court – and I think, unfortunately so, that it would inspire a cultural revolution.

 

Bob Ambrogi: Elliot Mincberg, how do you see the Supreme Court coming down on this issue?

 

Elliot Mincberg: Well for the reasons, largely that the professor talked about, I’m optimistic about a five four decision in favor of the right of same sex marriage. The arguments that Harry was making, frankly, are eerily and troubling reminiscent of the arguments that were being made in the 1950’s about how there is no explicit constitutional right against school segregation or against discrimination. Fortunately, the Supreme Court recognized those rights in the 1950’s despite the insistence then be Alabama of state’s rights to the contrary. They can insist that all they want to, but I am very hopeful that no later than the end of June, the equal protection due process right to same sex marriage will be recognized by the Supreme Court.

 

Bob Ambrogi: Well, we are actually getting close to the end of our time here; I do want to give each of you an opportunity to give your closing thoughts and also to let our listeners know how they can follow up with you if they care to do that. And Professor Ronald Krotoszynski, why don’t we start with you.

 

Professor Ronald Krotoszynski: If anybody wants to find me you can locate my contact information at law.ua.edu, I’m listed in the faculty profile. And I guess my concluding thought is that equal protection, since the ratification of the 14th amendment in 1968 has never been bounded by tradition. If it were, it would have been meaningless. So the fact that schools were segregated at the time of ratification didn’t stop the court from ordering desegregation. The fact that women couldn’t be lawyers or vote didn’t stop the court from saying women couldn’t be denied access to state universities based on their sex in the 1980’s. So while tradition is an important principle in limiting the scope of constitutional rights that are not enumerated, equal protection has always been about challenging traditions that are pernicious; and my guess is that equal protection is probably going to be the fulcrum of which the decision issues this June.

 

Bob Ambrogi: Thank you. Harry Mihet, why don’t we hear your final thoughts.

 

Harry Mihet: Thank you for having us with you today for this discussion. I’d say that in closing by its definition, marriage has always been and it remains the union of one man and one woman. The state, the Supreme Court, no one can legislate against that definition any more than they can legislate against the law of gravity. So at Liberty Counsel, we remain committed to protecting natural man woman marriage, protecting their rule of law as we were able to do in Alabama, and I would invite your listeners to learn more about us at www.LC.org, or by calling us at 1 (800) 671-1776.

 

Bob Ambrogi: Thank you and Elliot Mincberg, you get the final word today.

 

Elliot Mincberg: Thank you. Best way to get more information about our contact folks at People For is our website at www.PFAW.org. This is clearly a momentous issue, which fortunately will be settled, I think, by this summer, so that the confusion that has been sown by the Alabama Supreme Court and by its chief Justice, Roy Moore – who hasn’t gotten very much discussion today – will be resolved. But it is important to recognize that a lot of these key decisions, like on same sex marriage, like on racial discrimination and voting, a range of other issues, are being decided by the Supreme Court by very, very narrow five form majorities. And there is a four-person conservative set of justices on the court led by Scalia, Alito, Thomas, that is consistently ruling against many important rights that we all respect and need. So I urge our listeners not only to be cognitive of what’s going to happen in this case, but watch very carefully the Supreme Court and its future composition as these kinds of issues continue to come up in the future.

 

Bob Ambrogi: Thanks. We’ve been joined today by Harry Mihet, the vice president of legal affairs and chief litigation counsel for Liberty Counsel; Elliot Mincberg, senior fellow at People for the American Way, and Ronald Krotoszynski, professor of law at the Alabama school of law. Thanks to all three of you for your time and thoughts on this issue, we really appreciate it. That brings us to the end of another episode of Lawyer 2 Lawyer. This is Bob Ambrogi, thanks as always for listening to the program. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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