This week, Alabama became the 37th state to allow same-sex marriage. A federal district court judge in Alabama had found that Alabama’s ban on same-sex marriage violated the U.S. Constitution. U.S. District Judge Granade had stayed her decision until early this week. Earlier this month, the 11th Circuit of the U.S. Court of Appeals refused to extend the stay. Earlier this week, the U.S. Supreme Court also refused to extend the stay.
As an Alabama sideshow, Alabama Supreme Court Chief Judge Roy Moore directed that state officials not comply with the federal court order, but comply with state law instead. Chief Judge Moore is the same judge who placed a statue of the Ten Commandments in the Alabama Supreme Court building and refused to remove it when ordered to do so by a federal court. Notwithstanding Chief Judge Moore’s instructions, judges in most of Alabama were issuing same-sex marriage licenses as the federal order went into effect on February 9th. Some judges in less populous counties were finessing the issue by refusing to issue any marriage licenses.
Last month, I gave an update on same-sex marriage and advised that the U.S. Supreme Court would be hearing same-sex marriage cases appealed from the 6th Circuit of the U.S. Court of Appeals (Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam). In each of those cases, the 6th Circuit of the U.S. Court of Appeals had upheld state bans on gay marriage and / or the right of states to refuse to recognize gay marriages performed in other states. Prior to that ruling, the 4th, 7th, 9th, and 10th Circuits had all struck the bans on gay marriage in states under their jurisdiction.
Of course, nobody except the nine Supreme Court Justices themselves knows exactly why the Court decided to grant cert in the 6th Circuit cases while refusing to hear earlier cases. I speculated on the reasons in my earlier blog. However, in a dissent from the Court’s decision to lift the stay of the Alabama decision, Justice Clarence Thomas (joined by Justice Antonin Scalia) wrote, “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.” So, Justices Thomas and Scalia think the failure to stay the Alabama decision is telegraphing the Court’s decision in the upcoming same-sex marriage cases.
The Court is expected to hear oral arguments in these cases in late April, with an opinion likely by late June.
Now, more than 71% of people in the United States live in a state which allows same-sex marriage.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
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