Judicial Travesty in Alabama

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March 4, 2015
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Jon W. Davidson, Legal Director

What a travesty. The Alabama Supreme Court has rushed out a "per curiam" decision (one none of the members of that court would admit to authoring) ordering probate judges not to marry same-sex couples in the state without even providing for full briefing on the constitutional rights of same-sex couples and their families.

Among many other shocking examples of shoddy reasoning, the opinion seeks to upend equal protection law by saying that all that needs to be explained is why marriage is provided to different-sex couples.

Equal protection jurisprudence requires a justification for treating one group differently than another, not just for treating one group well. While Alabama may want to encourage different-sex couples to marry, that simply is not a reason for banning same-sex couples from marrying, which is what the laws being challenged actually do.

This decision will be a great one for law students to study, just as they do Dred Scott, Plessy v. Ferguson, Korematsu and Bowers v. Hardwick for how wrong courts can get it. Thank goodness the U.S. Supreme Court will be resolving all this soon.

Here is one of the fatal flaws in the decision: At page 114, the unnamed author states that "offering marriage solely to heterosexuals indisputably serves as a tool to prevent out-of-wedlock pregnancies." That is absurd. Maybe offering marriage to heterosexuals serves as a tool to prevent them from having out-of-wedlock pregnancies, but offering marriage "solely" to them doesn't! Offering marriage “solely” to heterosexuals only ensures that when a lesbian gets pregnant, her and her partner's child will be born out of wedlock!

The Alabama Supreme Court has put the probate judges in the state in an impossible position.  If they follow the Alabama Supreme Court’s order, they are likely to be sued in federal court for denying same-sex couples’ federal constitutional rights, where they will lose and will have to pay attorneys’ fees and possibly damages. This is no way to run a judiciary.

Learn more: Marriage at the Supreme Court

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