Federal court won't stay same-sex marriage ruling

Same-sex marriage in Alabama, a seeming impossibility just five years ago, could become reality on Monday.

A federal appeals court refused to stay a district court's decision striking down Alabama's bans on the practice. Attorney General Luther Strange almost immediately appealed the Tuesday decision to the U.S. Supreme Court.

In a separate ruling, U.S. District Judge Ginny Granade, who struck down the state's 1998 law and 2006 constitutional amendment banning the practice in two separate rulings on Jan. 23 and Jan. 26, declined to lift a stay of her ruling until Feb. 9.

Still, attorneys representing the plaintiffs in the same-sex suit and supporters of same-sex marriage were celebrating throughout the day.

"We don't believe any Alabamian should be treated in an unequal manner or have their rights denied that are guaranteed by (the) U.S. Constitution," said David Kennedy, who represents Cari Searcy and Kimberly McKeand, the Mobile couple at the heart of the case, following the 11th Circuit's decision Tuesday. Christina Hernandez, another attorney for the couple, said Searcy and McKeand were "absolutely thrilled" with the ruling.

Granade initially stayed her decision to allow Alabama's appeal to go forward. Strange sought a lengthier stay, arguing that implementing the decision before an expected Supreme Court ruling on the constitutionality of marriage later this year would cause confusion in the state. A three-judge panel for the 11th Circuit refused Strange's request; as is usually the case, the judges did not give a reason for their decision.

In denying Kennedy and Hernandez's request for an immediate lift of the stay order, Granade wrote that she wanted "to allow the Probate Courts of this state to be completely prepared for compliance with the rulings in this case."

Restates arguments

In his appeal to the U.S. Supreme Court on Tuesday, Strange reiterated many of the arguments made in the lower courts, saying that requiring Alabama to issue same-sex marriage licenses before the Supreme Court settles the issue would create confusion.

"A stay would serve the public interest by avoiding confusion among local officials and additional litigation in Alabama's other district courts," the appeal said. "The law on this issue can only be settled by a ruling from an appellate court that is binding on all district court judges and state officials."

Strange's petition goes first to Justice Clarence Thomas, who is the justice assigned to hear petitions from Alabama, Georgia and Florida. Thomas can either rule on Strange's request himself or refer it to the full court. Thomas or the court would grant the stay if it's likely that at least four justices might want to review the entire case on its merits, or if there would be irreparable harm if the stay is denied.

There are other possibilities. Thomas could deny Strange's request without comment, at which point Strange could petition the other justices. Thomas could also ask same-sex marriage advocates to respond before he rules on Strange's petition. If Thomas grants Strange's request for a stay, a written order would likely explain how long it would remain in effect.

The 11th Circuit had previously declined to intervene when Florida's ban on same-sex marriage was struck down last year. If the U.S. Supreme Court rejects Strange's petition, Alabama will become the 37th state where same-sex marriage is legal.

The Williams Institute, a think tank at the UCLA School Law, estimates there are 6,000 cohabiting same-sex couples in Alabama, of whom some 3,300 could get married in the next three years.

Searcy and McKeand, who were married in California, wanted Searcy to adopt McKeand's 8-year-old son. Their adoption petition was denied by the Mobile County Probate Court, which cited Alabama's ban. Searcy and McKeand sued, saying the ban denied them their equal protection and due process rights under the 14th Amendment. Strange argued the state had a compelling interest in ensuring children were united with their biological parents.

Granade disagreed, writing the state failed to show any "rational, much less compelling" link between prohibiting same-sex marriage and having more children raised in "the biological family structure the state wishes to promote."

"The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children," wrote Granade, who was nominated to the federal bench by President George W. Bush, a Republican, in 2001. "He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal."

In a second case, Granade ruled that the ban unconstitutionally denied another Mobile couple the rights of a married couple. James Strawser and John Humphrey had sought to give Strawser's power of attorney to Humphrey in advance of Strawser undergoing a risky surgery, but were told the state ban on same-sex marriage would prevent that.

In his request for a stay, Strange argued that allowing marriages to go forward before the expected U.S. Supreme Court ruling would cause the state "irreparable harm," and that a stay would simply maintain the "status quo."

In response, Kennedy and Hernandez filed motions last week saying granting such a stay would be "irrational." Attorneys for Gov. Robert Bentley also filed an amicus brief before the 11th Circuit last week, which argued that Granade would have to define what marriage is in the wake of her decision.

Bentley said in a statement he was "disappointed" with the decision and supported the attorney general's appeal.

"The issue of same sex marriage is a complicated one that involves all levels of government," the statement said. "My request to the 11th Circuit was simply to ask that the stay be held until the Supreme Court can rule once and for all this year or pending the fully briefed 11th Circuit appeal of the issue."

The Human Rights Campaign, an LGBT rights group that is waging a campaign to extend state discrimination protections to LGBT people, welcomed the ruling.

"The time has come for loving and committed couples from Florence and Huntsville to the Gulf Coast to be able to marry in the state they call home," HRC Alabama State Director Ashley Jackson said.

'Business as usual'

Montgomery County Probate Judge Steven Reed, who has consistently said he would issue same-sex marriage licenses when allowed to, said Tuesday his office may consider extending hours for wedding ceremonies should the U.S. Supreme Court reject Strange's appeal. However, he expected it to be "business as usual" on Monday, regardless of the court outcome.

"For our part, we may have a little more demand, but it might not be any more than we have on Valentine's Day, or near the end of the year when people get married," he said.

Some Alabamians vehemently oppose the decision. William Kendrick, a retired pipe fitter from Owassa, said he had no problem with same-sex couples enjoying the benefits of marriage, but state voters had voted for the 2006 constitutional amendment banning same-sex marriage and their will should be respected.

"Let them call themselves united, or togetherness, but don't use that word 'marriage,' because the Bible says that marriage is between a man and woman, not between two men or two women," he said.

But others welcomed it. The Lattice Inn on South Hull Street began advertising a "Marriage Equality Special" on Tuesday morning for couples looking to tie the knot.

"I have had some inquiries, and it's why I was prompted to put something together," said Jim Yeaman, owner of the business. "Let's see if someone (would like) an affirming venue for an event."

Yeaman said he was personally excited by the decision.

"I've got a number of friends who are going to take advantage of it," he said.

— Washington correspondent Mary Orndorff Troyan contributed to this report.