Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court's decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court’s decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

BIRMINGHAM, Ala. — Amid conflicting signals from federal courts and the chief justice of Alabama’s Supreme Court, some Alabama counties began granting marriage licenses to same-sex couples on Monday in a legal showdown with echoes of the battles over desegregation in the 1960s.

In major county seats like Birmingham, Montgomery and Huntsville, gay couples lined up outside courthouses as they opened, and emerged smiling, licenses in hand, after being wed by clerks or by the judges themselves.

At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples who lined up Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.

But in the small town of Troy, all was quiet at the Pike County Courthouse, where Judge Wes Allen of Probate Court, like his counterparts in some other counties, had decided that rather than issue licenses to same-sex couples, he would not grant marriage licenses to anyone. “We don’t have any appointments, and we have a sign up saying that we aren’t issuing any licenses at this time,” he said.

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

On Sunday night, the state’s chief justice, Roy S. Moore, sent an order to county Probate Court judges, telling them not to issue the licenses, in defiance of a Federal District Court ruling that is being appealed by the state. But on Monday morning, the United States Supreme Court refused to stay the District Court order pending the outcome of that appeal.

Chief Justice Moore’s position on the balance of federal and state power has deep resonance in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

In his order to probate judges, Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006, and said that he, as chief administrator of the state courts, has authority over the probate courts. In interviews, he has argued that the state courts are not bound by the federal court’s order; in 2003, he refused to obey a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building in Montgomery, though it was moved over his objections.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that in the same-sex marriage case, the federal judge, Callie V. Granade, an appointee of President George W. Bush, had instigated a grave breach of law. The result has been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government, playing out at Alabama’s courthouses.

As the weddings went ahead across much of the state, some Alabama officials lamented the Supreme Court decision, which denied a request by the Alabama attorney general to extend a hold on same-sex marriage. Judge Granade ruled in January that the Alabama ban was unconstitutional, but she put a hold on her order until Monday to give the state time to appeal.

”I regret the Supreme Court’s decision not to stay the Federal District Court’s ruling until the high court finally settles the issue this summer,” Attorney General Luther Strange, who had filed the motion, said in a statement. “In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.”

Here in Jefferson County, Judge Alan L. King of Probate Court said he had no hesitation, despite the Sunday night order on marriage licenses from Chief Justice Moore.

”At the end of the day, it’s still a very simple legal analysis: You’ve got a federal court order,” Judge King said in an interview as he watched the couples line up, near a white ribbon and red balloons.

He added: “This is a happy day for all of these couples, and if you can’t be happy for people, then I’m sorry. If someone can’t understand the joy and happiness of others, then I don’t know what else I can say.”

Monday’s marriages came despite a dramatic show of defiance toward the federal judiciary, announced in Chief Justice Moore’s order.

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, Chief Justice Moore wrote in his order late Sunday.

Chief Justice Moore rose to national prominence in the early 2000s when he defied a federal judge’s order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court.He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama’s probate judges are not bound by a federal trial court’s decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.

The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama’s courthouses Monday.

The chief justice’s misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of Chief Justice Moore’s belief that Judge Granade’s orders hold only “persuasive authority,” and not binding power, on Alabama judges.

“My guess is, that is actually the way Roy Moore sincerely understands the federal-state relationship,” said Joseph Smith, a judicial politics expert at the University of Alabama. “He’s also an elected politician, and he knows who his constituency is.”

Despite Chief Justice Moore’s protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.

“It’s a very similar strain of ideology: the state’s rights, resisting the national tide, resisting liberal movements in policy,” Dr. Smith said.

Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.

“I don’t want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders,” said Judge Steven L. Reed of Montgomery County, who added, “The legacy always hangs over us until we show that we’re beyond it.”

For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as “Roy’s Rock,” forced him from power.

“Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”

Source:  NY Times, “Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied,” FEB. 9, 2015 (reporting from New York.)

2015 LGBT Lobby Day

2015 LGBT Lobby Day

Event Date: Feb 9, 2015

LGBT_LobbyDayJoin LGBT Coloradans and our allies at the State Capitol for our annual LGBT Lobby Day on February 9, 2015!

Sign up here: http://bit.ly/LGBTLobbyDay2015

When: Monday, February 9, 2015
Time: 8am-3pm
Where: Central Presbyterian Church
1660 Sherman Street, Denver, CO 80203

The only way we can shape the future of equality in Colorado is by making sure our elected representatives hear from us, so make sure you mark your calendar then sign up to join us. We’ll provide food and training. Hope to see you there!

Sponsored by One Colorado.

Federal judge strikes down Alabama’s same-sex marriage ban

Cari Searcy, left, and Kim McKeand, who legally married six years ago in California, are pictured with their son Khaya Searcy, 8, on Tuesday November 11, 2014 in Mobile, Ala. State officials, citing Alabama's constitutional ban on same-sex marriage, denied Searcy's second-parent adoption of the child. (Sharon Steinmann/ssteinmann@al.com)

Cari Searcy, left, and Kim McKeand, who legally married six years ago in California, are pictured with their son Khaya Searcy, 8, on Tuesday November 11, 2014 in Mobile, Ala. State officials, citing Alabama’s constitutional ban on same-sex marriage, denied Searcy’s second-parent adoption of the child. (Sharon Steinmann/ssteinmann@al.com)

A federal judge in Mobile on Friday struck down Alabama’s constitutional ban on same-sex marriage, ruling that a woman could not be denied her desire for a second-parent adoption of a 9-year-old boy whom she has helped raise since birth.

U.S. District Judge Ginny Granade ruled that the Alabama Marriage Protection Act and the amendment that later enshrined it in the state constitution both were unconstitutional.

“It’s amazing. I was not expecting it at all (on Friday). Happy, happy news. I kind of expected them to sit on it because of the Supreme Court,” said Cari Searcy, one of the plaintiffs. “It’s so encouraging that we got a positive ruling from our home state.

“Love did win,” she added.

David Kennedy, an attorney for Mobile residents Searcy and Kim McKeand, praised the ruling.

“We’re obviously quite pleased with it,” he said. “It was the ruling that, frankly, we expected.”

The Alabama Attorney General’s Office indicated it would continue to fight the case. Late Friday, attorneys filed papers in court asking the judge to put the decision on hold.

Read Judge Granade’s ruling here

“We are disappointed and are reviewing the Federal District Court’s decision,” spokesman Mike Lewis said via email. “We expect to ask for a stay of the court’s judgment pending the outcome of the U.S. Supreme Court’s ruling which will ultimately decide this case.”

Other challenges pending

It is the first of several pending same-sex marriage cases in Alabama to be ruled on. The decision adds to a growing list of decisions across the country in favor of same-sex marriage.

“Careful review of the parties’ briefs and the substantial case law on the subject persuades the Court that the institution of marriage itself is a fundamental right protected by the Constitution, and that the State must therefore convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest,” Granade wrote in her 10-page order.

If Grande agrees to put the case on hold, Searcy will have to wait until the high court rules before she can become a legal parent to the boy. If the judge refuses, than Searcy could begin that process immediately.

Kennedy said his interpretation is that same-sex couple also would be able to marry statewide.

“Love did win.” — Cari Searcy

An attorney for April Brush and Ginger Aaron, the plaintiffs in one of the Alabama same-sex marriages that has yet to be decided, predicted a similar outcome.

“It’s so exciting. Precedence from the same state should have a compelling impact on our case in the Northern District,” said the attorney, Wendy Brooks Crew. “This judge clearly recognizes that family is family and that marriage is a fundamental right to all Americans – black, white, gay or straight and there is no compelling state interest to say otherwise.”

The judge’s ruling comes as the U.S. Supreme Court prepares to hear arguments in a same-sex marriage case that supporters and opponents, alike, hope will settle the question once and for all.

The high court surprised many observers in October when it declined to hear appeals from a number of states. At the time, every appellate court that had considered the issue had ruled in favor of same-sex plaintiffs.

But the Sixth U.S. Circuit Court of Appeals in Cincinnati overturned lower court rulings in favor of same-sex marriage in Kentucky, Ohio, Michigan and Tennessee in November. The Supreme Court announced last week that it would review that case.

Granade, an appointee of former President George W. Bush, wrote that she considered the arguments of the Sixth Circuit but found more persuasive the legal reasoning of four other appellate courts in favor of same-sex marriage. She rejected Alabama’s argument that it has a legitimate interest in protecting ties between children and biological parents.

“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,” the judge wrote. “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.”

Granade wrote that if anything, the state’s same-sex marriage ban detracted from its stated goal of providing the optimal environment for children. The children of same-sex parents are “just as worth of protection and recognition” by the state as the children of heterosexual parents, she wrote.

“In sum, the laws in question are an irrational way of promoting biological relationships in Alabama,” the ruling states.

Searcy and McKeand sued last year after Mobile County Probate Judge Don Davis, citing the state’s gay marriage ban, rejected Searcy’s adoption petition. They had been legally married in California.

Both sides in the case agreed that the petition would have been granted as a matter of routine if Searcy and McKeand had been a heterosexual married couple.

Kennedy, the women’s lawyer, said he would ask Granade not to stay the ruling so that his clients can follow through with the adoption immediately.

“Justice delayed is not really something we’re interested in,” he said. “We’re of the opinion that our clients have been waiting for a very long time.”

National, local reaction

Granade’s ruling drew cheers from gay marriage supporters nationally and in downtown Mobile and jeers from opponents.

“Judge Granade’s ruling today affirms what we already know to be true – that all loving, committed Alabama couples should have the right to marry,” Human Rights Campaign Legal Director Sarah Warbelow said in a prepared statement. “As the U.S. Supreme Court prepares to hear a landmark case on marriage equality, today’s ruling joins the dozens and dozens of others that have recognized that committed and loving gay and lesbian couples deserve equal treatment under the law.”

Ben Cooper, chairman of Equality Alabama, said in a statement that he was thankful the state’s “irrational” marriage law had been struck down.

“I am positive with this landmark decision there will be many questions,” he stated. “Yet opportunities now to reinforce and bring Alabama among its fellow states where equality is undeniably a reality.”

I am positive with this landmark decision there will be many questions. Yet opportunities now to reinforce and bring Alabama among its fellow states where equality is undeniably a reality.

At the Flip Side, the gay bar on South Conception Street in Mobile, many patrons welcomed the news.

Bob Brunson, the bartender, called the ruling “an awesome thing” and said he knows the couple personally.

“We’ve fought this battle for so many years,” Brunson said. “I think it’s incredible and very exciting, one step closer to equal rights.”

Dewayne Kemp, 42, called the decision a step forward.

“It’s just a matter of time,” he said. “It’s going to happen when the U.S. Supreme Court votes it in. I don’t look to Alabama or Mississippi or Louisiana to vote it in.”

Alabama House Speaker Mike Hubbard, R-Auburn, blasted the ruling.

“It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Act,” he said in a prepared statement. “The Legislature will encourage a vigorous appeals process, and we will continue defending the Christian conservative values that make Alabama a special place to live.”

Source: Al.com, “Federal judge strikes down Alabama’s same-sex marriage ban,” By Brendan KirbyJanuary 23, 2015 at 5:56 PM, updated January 24, 2015 at 7:33 AM

Updated at 6:07 p.m. with comments from Searcy, Kennedy and the Attorney General’s Office. Updated at 7:05 p.m. with additional reaction to the ruling and at 7:30 p.m. with comments form Wendy Brooks Crew. Updated at 9:44 p.m. to embed the judge’s written order.

Reporters Kent Faulk and Casey Toner contributed to this report.

Transgender rights arrive at Capitol

Dr. Jude Harrison of La Plata Family Medicine says a surgery requirement for transgender people to change their birth certificate markers wouldn’t fit everyone. Not all transgender people choose surgery.

Dr. Jude Harrison of La Plata Family Medicine says a surgery requirement for transgender people to change their birth certificate markers wouldn’t fit everyone. Not all transgender people choose surgery.

DENVER – With gay marriage gaining acceptance in America, advocates in Colorado have set their sights on a new frontier – transgender rights.

The entire legal conundrum facing gay couples is not fully settled. The U.S. Supreme Court on Friday agreed to tackle whether same-sex couples have a constitutional right to marry, with a ruling expected by June.

But for many Americans, the issue is settled after lower federal courts across the country ruled bans on same-sex marriage are unconstitutional, including in Colorado, where same-sex marriage now is legal.

Given the progress, LGBT advocates now are focused on transgender issues.

A measure being proposed for Colorado – which likely will be introduced within the next two weeks – would make it easier for transgender people to change the sex marking on their birth certificates.

The current process requires sex-reassignment surgery in order to qualify. The legislation, which has been proposed by two openly gay lawmakers, also would include hormone treatment, among other “transitional” options.

“They identify how they identify, and they live their life how they identify, and they express their gender how they do, but the state shouldn’t have a requirement that we inspect your genitalia when you’ve made a private medical decision about your health,” said Sen. Jessie Ulibarri, D-Westminster, who will be sponsoring the measure along with Rep. Dominick Moreno, D-Commerce City.

For Durango physician Jude Harrison, the issue is as personal as it gets. Harrison, who was born female, simply thought he was a tomboy. But as time went on, he realized he identified as a man. Now 61 years old, Harrison began hormone treatment in 2013.

“My being a man has nothing to do with what’s between my legs,” Harrison said.

He spoke of the legal issues he faces as a result of not having all government-issued documents match in the gender category. As a physician, this has affected licensing. It also comes up when Harrison travels, having to go through security and show identification.

“What one does to transition is going to be a different decision for every person, and for some people, they’re never going to do surgery; and so to have a requirement to have to do surgery to change your birth certificate marker doesn’t fit with what’s going to happen for a number of people for the rest of their lives,” Harrison said.

Dave Montez, executive director of Colorado LGBT advocacy group One Colorado, said transgender issues are important because they come with a host of health and safety issues, as well.

Studies have shown that trans people are subject to more harassment and bullying, resulting in high rates of depression and thoughts of suicide.

“With gay and lesbian people, we saw this incredible change, not just in laws, but in public perception, and we need to do that with transgender people, as well,” Montez said. “But in order to do that, we’ve got to reduce barriers.”

The battle, however, is uphill, especially in a divided Legislature where Republicans control the Senate and Democrats hold the House.

One Republican in the House already has introduced a measure that would allow locker room owners to restrict access to a changing space if the person is transgender.

Montez described the measure as being “engineered to drive up fear and confusion … in a hurtful, dishonest and dehumanizing way.”

But Rep. Kim Ransom, R-Littleton, said the issue is difficult for parents who have not had that conversation yet with their children. Even though a person might identify as a woman and use the women’s locker room, they still might have male genitalia, which could confuse small children sharing the same space.

“I would just hope that we wouldn’t have to expose especially young children that just haven’t learned yet,” Ransom said. “I want my children to have an understanding and tolerance of everybody. But I’m a protective mom.”

The state’s seven gay lawmakers – all Democrats – already are at odds with Republicans about other LGBT bills this year. One bill has been introduced by Sen. Pat Steadman, D-Denver, which would clean up conflicts in statute between civil unions and gay marriage, clarifying that one can’t marry someone in a civil union.

Republicans controlling the Senate have assigned the transgender measure to the Senate State, Veterans and Military Affairs Committee, widely known as a “kill committee” for unfavorable legislation by the controlling party.

“The only people that seem to be really hung up on it seem to work in this building,” Steadman said during an interview at the Colorado Capitol.

To be fair, House Democrats have assigned Ransom’s locker room bill to the House State, Veterans and Military Affairs Committee, also considered a kill committee for controlling Democrats in that chamber.

But Rep. Don Coram, R-Montrose, said gay-marriage issues are not for the Legislature to decide. Coram opposed civil unions in 2012, despite having a gay son.

He told The Durango Herald that if he was faced with a ballot question legalizing civil unions or gay marriage, he would have supported it. But he doesn’t believe it is the Legislature’s place to decide, especially after voters banned gay marriage.

“I just didn’t think the Legislature has the right to overturn what the voters have done,” Coram said.

Concerning the transgender bill, he said, “It doesn’t rise to the top of my priority list, but if this comes forward, and it passes, I don’t care.”

Source:  The Durango Herald, “Transgender rights arrive at Capitol: Bill would make it easier to amend birth certificates,”  By Peter Marcus, Herald Denver Bureau, Article Last Updated: Saturday, January 17, 2015 12:11pm

-

High court to hear gay marriage cases in April

WASHINGTON (AP) – Setting the stage for a potentially historic ruling, the Supreme Court says it will decide whether same-sex couples nationwide have a right to marry under the Constitution.

The justices said Friday they will review an appellate ruling that upheld bans on same-sex unions in four states.

The case will be argued in April and a decision is expected by late June.

FILE – In this June 26, 2013, file photo, gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. The justices might have to decide to jump in at their closed-door conference on Friday, Jan. 16, 2015, if they want to resolve the legal debate over gay marriage in the next few months. The justices would hear the case in April, the last month for oral arguments before the next term begins in October. (AP Photo/J. Scott Applewhite, File)

Kentucky, Michigan, Ohio and Tennessee are among the 14 states where gay and lesbian couples are not allowed to marry.

The number of states that permit same-sex marriage has nearly doubled in three months as a result of federal and state court rulings. The justices’ decision last October to turn away same-sex marriage appeals allowed some of those rulings to take effect. Florida last week became the 36th state to issue marriage licenses to same-sex couples.

The court is extending the time it usually allots for argument from an hour to two-and-a-half hours. The justices will consider two related questions. The first is whether the Constitution requires states to issue marriage licenses to same-sex couples. The other is whether states must recognize same-sex marriages performed elsewhere.

The appeals before the court come from gay and lesbian plaintiffs in Kentucky, Michigan, Ohio and Tennessee. The federal appeals court that oversees those four states upheld their same-sex marriage bans in November, reversing pro-gay rights rulings of federal judges in all four states.

Ten other states also prohibit such unions. In Arkansas, Mississippi, Missouri, South Dakota and Texas, judges have struck down anti-gay marriage laws, but they remain in effect pending appeals. In Missouri, same-sex couples can marry in St. Louis and Kansas City only.

Louisiana is the only other state that has seen its gay marriage ban upheld by a federal judge. There have been no rulings on lawsuits in Alabama, Georgia, Nebraska and North Dakota.

Source: The Associated Press (AP), “High court to hear gay marriage cases in April,” by Mark Sherman,Jan 16 2015