Judge in Alabama Won’t Stay Gay Marriage Order

(CN) - A federal judge isn't budging off her order that an Alabama probate judge must issue licenses to same-sex couples.

On Monday, U.S. District Judge Callie V.S. Granade denied a request from Mobile County Probate Judge Don Dais that she stay the order in light of a conflicting order from the Alabama Supreme Court.

Granade tossed Alabama's ban on same-sex marriage in January, finding it unconstitutional, and said Davis, a defendant in the underlying lawsuit, could not refuse to issue a marriage license to a same-sex couples on the basis of their sexual orientation.

But Alabama's chief justice, Roy Moore, muddied the meaning of that ruling by telling the state's probate judges they did not have to abide by Granade's order. Then, earlier this month, the Alabama Supreme Court weighed in, explicitly ordering the probate judges not to issues licenses to same-sex couples.

Judge Davis moved to stay Granade's order, citing "the increased confusion that has ensued" in the aftermath of her judgment on the state's same-sex marriage ban.

"Judge Davis notes that previous motions to stay the judgment ... were denied by this court, the Eleventh Circuit Court of Appeals, and the United States Supreme Court. However, Davis contends that the facts have changed," Granade wrote on Monday. "Judge Davis states that he has been placed in a potential conflict between this court's orders and the orders of the Alabama Supreme Court and its Chief Justice, Roy Moore."

Granade sympathized with Davis's dilemma, agreeing that "the developments in these same-sex marriage cases has at times seemed dizzying."

But she nevertheless concluded that Davis had not shown a stay is warranted.

"In the instant case, Judge Davis has not argued, much less shown that he is likely to succeed on the merits," she wrote. "This court has found that Alabama's marriage sanctity laws violate the Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

"This court's conclusion agrees with the overwhelming consensus of courts across the country that have addressed the constitutionality of similar state laws since the Supreme Court's ruling in United States v. Windsor. ... Judge Davis has offered no reason why this court should now conclude that judgment in this case is likely to be in favor of Judge Davis," Granade wrote.

The judge also held that Davis failed to show how he will be irreparably harmed absent a stay.

Judge Davis states that he complied with this court's preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses," Granade wrote. " Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples.

"However, Davis has not shown how this court's preliminary injunction results in irreparable harm to him. The court notes that the decision entered in Ex parte State ex rel. Alabama Policy Institute 2015 ... recognized that Judge Davis is a party to this litigation and that he remains bound by this court's orders," she concluded.

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