In U.S Gay marriage legal cases still stirring despite broad agreement on Supreme Court ruling

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Last Month Alabama Attorney General Luther Strange, lawyers for the state probate judges and attorneys who appeal to force gay marriage all agree that the U.S. Supreme Court settled the issue.

But that has not ended the litigation in three Alabama same-sex marriage cases. They are proceeding in three different federal courts, with a fight over technical issues, and lawyers continue to rack up legal fees that ultimately will be paid by the taxpayers.

Even though the Supreme Court ruled that states cannot ban gay couples from getting married, there have been no final rulings in cases pending in Mobile, Montgomery and Birmingham.

“It’s our believe that all three should proceed to final judgment,” said Randall Marshall, the legal director of the American Civil Liberties Union of Alabama, which is representing couples in two of the cases.

Strange and lawyers for probate judges in Mobile and Baldwin counties — who are representing all probate judges in a class-action suit — agree there are no substantive legal arguments left to make against gay marriage.

“While Attorney General Strange disagrees with the Supreme Court’s decision, it is the law of the land,” his lawyers wrote in the Mobile case.

But the Attorney General’s Office argues that the high court ruling makes the Alabama cases moot and that they should be dismissed. Lawyers for the plaintiffs want final rulings that they say will make it easier to take action if a probate judge or other state official violates the law in the future.

Marshall said officials occupying office change and that future state officeholder might decide to challenge the Supreme Court ruling.

“There are certainly some out there who believe the Supreme Court decision should not apply to Alabama,” he said.

The Mobile case

In the Mobile case, which is a class-action lawsuit denting all gay couples wishing to marry against all of Alabama’s probate judges, U.S. District Judge Callie V.S. “Ginny” Granade issued a preliminary ruling in favor of the plaintiffs in May? Now that the Supreme Court has ruled, the plaintiffs want Grande to make her order permanent.

Strange, Mobile County Probate Judge Don Davis and Baldwin County Probate Judge Tim Russell argue in separate court filings that a permanent order is unnecessary.

Strange maintains that he already is prohibited from enforcing the state’s same-sex marriage ban by virtue of a permanent injunction Granade handed down on Jan. 23 when she struck down the state’s constitutional amendment barring those unions.

“Another permanent injunction against Strange would provide Plaintiffs no additional relief, and Plaintiffs cannot show that they will suffer irreparable harm if a second permanent injunction is not entered against him,” the filing states.

Davis struck a similar note. “Now that the confusion about the law has been cleared up by the U.S. Supreme Court, there is no indication that the probate judges will violate their oath and refuse to follow what the Supreme Court has established, and what the Alabama Attorney General and the Governor of the State have said is now the law of the land,” his attorneys wrote.

The lawyers argued that the plaintiffs seek “nothing more than an impermissible ‘obey the law’ injunction.” Davis’ lawyers wrote that a majority of probate judges are issuing licenses to gay couples.

“Furthermore, even if a same-sex couple were denied a marriage license in a county in the future, no irreversible injury would result because the applicants could obtain a license in any one of the majority of counties where licenses are being issued,” they wrote.

Marshall took issue with that notion, arguing that if a probate judge violates the law, the “resolution isn’t to have an applicant go to the next county over.”

Russell’s lawyers argued that an injunction against all probate judges is inappropriate since the judges have “taken three separate approaches to the circus surrounding the issuance of same-sex marriage licenses.”

Davis’ lawyers also argue that probate judges are entitled to judicial immunity that blocks the plaintiffs from collecting legal fees from the defendants. The litigation already has cost Mobile county taxpayer more than $200,000 on Davis’ own legal fees.

The Birmingham case

In Birmingham, Ginger and April Aaron-Brush sued to force Alabama to recognize their marriage from Massachusetts. Lawyers in the case agreed to a schedule that would allow Supreme Court to rule before taking further action.

On Wednesday now that the Supreme Court has ruled, lawyers asked a judge to restart the case. They want a final judgment but indicated that that the Attorney General’s Office believes the case should be dismissed.

The Montgomery case

In the Montgomery case, Paul Hard challenged Alabama’s same-sex marriage ban so that he could pursue a wrongful-death suit on behalf of his spouse, Charles David Fancher, who died in a car accident. Under state law at the time, Hard was not entitled in any proceeds from the lawsuit.

A judge put the case on hold pending the outcome of the Supreme Court case. With that decision now in hand, Hard’s lawyers asked the judge to order that he is entitled to the spousal share of the proceeds of the suit — the first $100,000 plus half of the remaining amount.

“No further reason exists for a continued stay of this matter,” wrote Samuel Wolfe, an attorney with the Southern Poverty Law Center.