Yesterday the United States Supreme Court denied the Alabama Attorney General’s application to stay federal district Court Judge Callie Granade’s decision of January 23, 2015, in which Judge Granade ruled “that Alabama’s marriage laws violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Searcy v. Strange, No. 14-0208-CG-N, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23, 2015). Searcy involved a same-sex couple’s attempt to adopt. Cari Searcy and Kimberly McKeand had legally married in California. Id., *1. In 2011, they petitioned a probate court in Alabama for Cari to adopt Kimberly’s 8-year-old biological son. Id. The Alabama probate court denied the petition, because Alabama’s Sanctity of Marriage Amendment to the Alabama Constitution and the Alabama Marriage Protection Act define marriage as a “sacred covenant, solemnized between a man and a woman,” and prohibit Alabama from recognizing “as valid any marriage of parties of the same sex that occurred . . . as a result of the law of any jurisdiction.” Id. Because Alabama did not recognize the marriage between Cari and Kimberly, Cari did not qualify as a “spouse” under Alabama’s adoption laws. Cari was thus prohibited from adopting her spouse’s child. Id., *2. Judge Granade held that under the equal protection and due process clauses of the United States Constitution, the Alabama Marriage Protection Act and Marriage Amendment were not narrowly tailored to meet the concerns of the State; and that the laws were indeed harmful in a case such as this, where Kimberly’s 8-year-old son was denied the benefit of two parents. Id., *4-5.
Last Tuesday, February 3rd, Alabama Attorney General Luther Strange presented to Justice Clarence Thomas a petition requesting that the United States Supreme Court stay the implementation of Judge’s Granade’s decision. Justice Thomas referred the petition to the Court. Seven of the nine Justices voted to deny the petition,. Strange v. Searcy, No. 14A840, 574 U.S. ____ (2015).
Justices Thomas and Scalia dissented. They dissented because, while the issue of whether a state’s definition of marriage violates the Fourteenth Amendment will be heard in four consolidated cases later this term. That question has not been decided at the present time. Thus they felt that the Court should preserve the status quo.
Justice Thomas wrote, “When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review.” Strange at *1. And indeed, the Court had in 2014 issued stays in similar circumstances. Id., *2. They also took note of how the Court might rule later this year: “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.” Id., *3. But even if the high court may well end up ruling as Judge Granade has in Alabama, “This is not the proper way to discharge our Article III responsibilities.” Id. In other words, Justices Thomas and Scalia felt that the Court should have granted the Alabama AG’s stay until the issue is officially decided. “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.” Id.
Personally, I look forward to reading the briefs in the four consolidated cases, to the debate that will be had, and to the Court’s interpretation and answer on a critical question of our time. I tend to side with the positions taken by individuals such as Judge Granade. Yet it is an important question that needs to be thoroughly argued. And it will be very interesting to see if the final decision in the four consolidated matters will be a seven-to-two decision, as occurred yesterday in Strange v. Searcy.