Caustic Thomas Dissent in Gay-Marriage Case

     WASHINGTON (CN) – The Supreme Court refused Monday to let Alabama block a ruling against its ban on gay marriage, with two conservative justices opposed.
     It has been just over a month since U.S. District Judge Callie V.S. Granade found Alabama’s ban on same-sex marriage unconstitutional.
     Cari Searcy is the lead plaintiff in the case, having required court intervention because the state refused to let Searcy adopt her wife’s biological son.
     Searcy and Kimberly McKeand were married in California, but Alabama law does not recognize their union.
     Granade had found that Alabama denied Searcy’s adoption petition based on the Alabama Sanctity of Marriage Amendment and the Alabama Protection Act.
     Searcy fought the laws under the equal-protection and due-process clauses of the 14th Amendment, while Attorney General Luther Strange cited Alabama’s purportedly “legitimate interest in protecting the ties between children and their biological parents and other biological kin.”
     In her opinion, Granade said 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.”
     Granade wrote that the laws are an “irrational way of promoting biological relationships in Alabama.”
     After appealing to the 11th Circuit, Alabama applied to the Supreme Court for a stay of Granade’s order.
     With the high court having already taken up an appeal of different state bans on gay marriage this term, it did not intervene as Granade’s ruling was about to take effect last month, and it shot down Alabama’s request for a stay down Monday as well.
     Also as in last month, Justice Antonin Scalia joined Justices Clarence Thomas on Monday in a dissent. They said Alabama deserved deference in its bid for a stay “because states are required to comply with the Constitution, and indeed take care to do so when they enact their laws.”
     It is thus “a rare case in which a state will be unable to make at least some showing of a likelihood of success on the merits,” Thomas wrote.
     The irreparable-injury factor also weighs in favor of granting Alabama a stay, as do “the equities and public interest,” according to the dissent.
     Thomas additionally pointed to stays that the court has granted “in similar circumstances.”
     “This application should have been treated no differently,” he wrote. “That the court more recently denied several stay applications in this context is of no moment. Those denials followed this court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, I acknowledge that there was at least an argument that the October decision justified an inference that the court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The court has now granted a writ of certiorari to review these important issues and will do so by the end of the term. The attorney general of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.”
     Any trace of hiding contempt for the case’s trajectory disappears when Thomas slams the majority for “look[ing] the other way as yet another federal district judge casts aside state laws without making any effort to preserve the status quo pending the court’s resolution of a constitutional question it left open in United States v. Windsor.”
     “This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas added. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this court to pretend that it is.
     “Today’s decision represents yet another example of this court’s increasingly cavalier attitude toward the States. Over the past few months, the court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.”
     Just a week ago, the Alabama Supreme Court ordered probate judges across the state to stop issuing marriage licenses to same-sex couples. By a 7-1 vote, the state’s highest court ruled that “Alabama law allows for marriage between only one man and one woman,” and that the state’s probate judges have a duty not to issue any licenses to a couple that doesn’t comport to that law.
     The court’s 148-page opinion then goes on to harshly critique Granade’s January ruling in Searcy, as well as the high court’s Windsor opinion.
     As the Searcy class action wages on, the lead plaintiff in that case is also now suing Mobile County’s probate judge as well for denying her adoption petition.
     Searcy had applied to adopt her wife’s child again after Granade’s January ruling, but says Probate Judge Don Davis is “continuing to enforce the remnants of those now void laws.”
     The judge allegedly refused to grant the adoption petition pending final resolution by the U.S. Supreme Court on the crop of state bans it agreed to review.

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