On February 11, 2015, two private advocacy organizations (the Alabama Policy Institute and the Alabama Citizens Action Program, represented by Liberty Counsel) filed an action in the Alabama Supreme Court seeking “mandamus relief in the name of the State” against all Alabama probate judges. Ex parte State ex rel. Alabama Policy Institute and Alabama Citizens Action Program v. King. Styled as a petition on behalf of the State, the action seeks the following relief: “Petitioner [the State of Alabama], by the Relators, seeks a writ of mandamus directed to each Respondent judge of probate, commanding each judge not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

The ACLU of Alabama, together with NCLR, SPLC and Americans United, representing Equality Alabama, filed an amicus brief arguing that the petitioners lacked standing and only the Attorney General had the authority to file such a mandamus petition.

On March 3, the Alabama Supreme Court granted the petition and issued a temporary restraining order to all probate court judges to cease issuing same-sex marriage licenses. Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2015). The Court subsequently entered a final order to the same effect. Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2015).

Following the Supreme Court’s decision in Obergefell, the Alabama Supreme Court invited the parties to submit briefs addressing the effect of Obergefell on the mandamus order it had issued. While the probate judges who initially responded agreed that the mandamus order be set aside, the petitioners submitted a brief calling upon the ASC to ignore the Supreme Court. On August 3, the probate court judge for Washington County filed a brief also calling upon the ASC to stand up against the Supreme Court. Then in November, additional amicus briefs were filed by the Charismatic Episcopal Church for Life and the American College of Pediatricians calling upon the Court to ignore Obergefell.

On January 6, 2016, Alabama Supreme Court Chief Justice Roy Moore issued an Administrative Order claiming that until the Alabama Supreme Court acts, the mandamus order issued in Alabama Policy Institute remains in effect and ordered the probate court judges to not issue marriage licenses to same-sex couples. No Alabama probate court judge has heeded the Administrative Order.

The Alabama Supreme Court dismissed the pending motions/petitions calling for the Court to ignore Obergefell. See Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2016). However, it did not vacate or otherwise set aside its earlier writ of mandamus directing Alabama’s probate court judges to comply with the Alabama laws that were held unconstitutional by Judge Granade in Strawser v. Strange. Indeed, Chief Justice Moore stated state that the U.S. Supreme Court’s decision in Obergefell v. Hodges was not only wrongly decided, but that it was “a lawless act” and “is not entitled to precedential value” (emphasis in original). He concluded that “the certificate of judgment in this case does not disturb the March 2015 orders of this Court that uphold the constitutionality of the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act.” Only Justice Shaw stated the mandamus order “no longer has a field of operation or any legal effect,” or acknowledged the binding preliminary injunction entered by Judge Granade in Strawser v. Strange, 105 F.Supp.3d 1323 (S.D. Ala. 2015).

The case is closed.

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