I guess it was inevitable. Given who we are and how we feel about same sex marriage, it is Alabama who spits in the punch bowl and refuses to go along with the wave of same-sex marriage acceptance sweeping the nation. Sigh.
In a 134-page Per Curiam (for the court) opinion, the Alabama Supreme Court ruled yesterday (Tuesday, March 3) that it has just as much right as the federal district court to determine how to interpret the U.S. Constitution. Acting in response to a petition filed by one county’s probate judge requesting relief, the Alabama Court has taken the extraordinary action of ordering all probate judges in Alabama (except the one affected by the original federal district court ruling) from issuing same sex marriage licenses. The Court ordered the probate judge originally affected to show cause why the federal district court’s order applied to any licenses other than those directly before the court at the time of its ruling.
In his dissent – addressed not to the appropriateness of same sex marriage but to the procedural defects of the Court’s ruling – Justice Shaw argued that the Court did not have jurisdiction because it arose from a petition directly to the Alabama Supreme Court rather than a lower court ruling. He also argued that the probate judges seeking relief from the Court cannot act in the name of the state on a matter concerning the state’s own sovereignty and that they therefore lack standing. Noting that there is no lower court ruling on which the Court can rule, Justice Shaw argued that the petition on which the Court is ruling is procedurally deficient.
By overlooking this Court’s normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State’s probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law. Shaw’s dissent, p 148.