Alabama probate judges might wish to brush up on federal contempt of court powers

U.S. District Court Judge Callie V.S. “Ginny” Granade on Jan. 23 struck down Alabama’s laws banning same-sex marriage in a ruling in one same-sex couple’s lawsuit in Mobile. The judge ruled that probate judges around the state should begin issuing licenses to same-sex couples on Monday Feb. 9 if an appeals court did not issue a stay. No stay has been issued. Alabama probate judges who refuse to follow the order may well be subject to the power of the federal court to hold them in contempt. For a good article laying out the broad powers of a federal district judge to hold individuals in civil or criminal contempt, here is an extensive explanation of those powers.

Acting like a yokel and mouthing off about ludicrous theories of states’ rights is one thing. Defying a specific order of a federal court is quite another.


The injunction issued by the district court states:

Accordingly, the court hereby ORDERS that the Alabama Attorney General
is prohibited from enforcing the Alabama laws which prohibit same-sex marriage.
This injunction binds the defendant and all his officers, agents, servants and
employees, and others in active concert or participation with any of them, who
would seek to enforce the marriage laws of Alabama which prohibit same-sex

See here for full order. Also here for PDF. ORDER Strawser v. Strange (8)


62 responses

  1. Seriously though, is there any chance that Moore could be found in contempt, or is it only the probate judges who would be at risk?

  2. The least dangerous branch. Will there be pictures when the Marshals service takes the Alabama judges into custody? Will they be subject to a cavity search before being put into population? Asking for a friend.

  3. Judge Kopf,

    I have read that the Probate Judges are wholly within the judicial branch, and as the judicial branch is not (yet) a party to the case overseen by Judge Granada, until one is sued, her order has no legal effect over them. Is that correct?

    Thank you,

  4. There are I think some contempt through incitement cases from the massive resistance period, my recollection is there is a 6th Cir case involving George Lincoln Rockwell.

  5. I heard a report on NPR that some of the probate judges are saying that they won’t issue any licenses. If they do that–call a halt to all marriages–I think if I were Judge Granade I might just refuse to hold them in contempt, or hold off on doing so, knowing that public pressure would soon cause them to re-think that strategy.

    Having actually been a judge, you, of course, would know better than I whether that is a wise, or even good strategy.



  6. How DARE those yokels defy superior courts!!! Defiance of superior courts is the sole prerogative of Article III judges.

  7. How could any probate judge, none of whom are parties to the action before Judge Granade, possibly be held in contempt by her? They would be in violation of no court order. Her order, like all court orders, applies only as to the parties before her. No?

  8. Interesting question — when a state attorney general is a party to a case as the designated representative of the state, does the decision in that case bind all state actors? Additionally, the injunction in the licensing case provides that it applies to anybody who would act in concert with the attorney general to enforce the laws against issuing marriage licenses to same sex couples. Does that broad language permit contempt citations to state court judges.

    In discussing what might happen in Alabama, it is important to remember that the Chief Justice in Alabama was returned to that high office by voters after being removed from office once before for believing that he was immune to orders from any federal court other than the U.S. Supreme Court (in the earlier case dealing with a religious display on the state supreme court grounds). It should be no surprise that he once again is displaying contempt for federal authority.

  9. Am I allowed to ask a serious question? What form of relief was ordered by the USDJ? A declaratory judgment or an injunction? Who was/were the defendant(s) or respondent(s) in the federal case (were they sued, as I assume they were, in their official capacities, that is, as representatives of the State)? It seems to me that this kerfuffle turns on the federal law of judgments, with focus not so much on the fact that only one (is that right?) couple were plaintiffs (that is, who is entitled to benefit from the judgment), but more on who is bound by the adverse and unstayed judgment, that is, who was/were the defendants/respondents, and whether the probate judges are in privity with them. If I am barking up the wrong tree, please explain why. My sympathies on the merits, as a matter of constitutional law, are with the plaintiffs, if that matters, and I hate the thought that “Chief Justice” Roy Moore might be on to something, but that doesn’t affect the sincerity of my question under the law of judgments.

  10. The Supreme Court of the U.S. this morning denied a stay of the Alabama marriage equality ruling, by 7-2 vote. According to Justice Thomas’s dissent, joined by Justice Scalia, the underlying order is an injunction, issued against the Attorney General of Alabama in his official capacity. I believe that answers my question (immediately above). The judges of the state, it seems to me, necessarily act in concert with and stand in privity with, the state AG for these purposes. If so, then the injunction does bind them, and they risk contempt by defying it.

  11. CM,

    Even though a state judge may not be a party, this does not mean the judge is not subject to an injunction. It depends upon the wording of the injunction. All the best.


  12. Anon.,

    Depends on the wording of the injunction. You do not have to be a party to be bound by an injunction. The injunctions I typically issue pertain to parties and anyone acting in concert with them. All the best.


  13. The Supreme Court’s latest refusal to issue a stay seems to make even more clear how the court will rule later this year. How could the justices overrule so many of their brethren and sisteren, especially when they have repeatedly permitted orders to go into effect that will have had the effect of permitting thousands of same-sex couples to marry? Although theoretically possible, such a ruling would be a grievous wound to the court’s moral authority and credibility–another reason, if one were needed, why the court will decide that marriage equality is the law of the land.

  14. But the injunction forbids the AG from enforcing Alabama law. That is a wholly different act from awarding a marriage license. Furthermore, probate judges are part of an entirely separate branch of the Alabama government. Under what theory could they possibly be considered agents, servants, or employees of the AG? I do not see how in any sense the probate judges could be subject to Judge Granade’s order. And if they are not subject to an order, they cannot be in defiance of an order, and thus cannot be held in contempt. Of course, a probate judge who refuses to issue a license might find him or herself quickly sued and subject to a separate injunction which would properly name him or her as a defendant. But until that point, I do not see how one could be subject to sanctions.

  15. The rules on parties with notice and concert are rather complex, but most are from the 5th Cir. or its missing half the 11th from segregation litigation. The notion of concert is rather broad though modeled on accessory cases.

  16. RGK,
    Me too. The less we have of that sort of thing, the better. Don’t get me wrong, I understand that people have to play shenanigans, but there comes a time to cut the crap and grudgingly comply. Going over that line risks the rule of law, which is why courts have that power (practically unique for a branch not charged with executing the laws)

  17. What B.S., “Your Honor.” No one is obliged to obey an unlawful order, which aptly describes “Ginny’s” order.

    In reality, it is you federal judges who are in contempt of the people. As President Jackson might have said, “‘Ginny has issued her order; now let her enforce it.”

    Despite what you’ve said, Congress should not go to hell; rather, federal judges should shove it.

  18. RGK, am I missing something obvious? The Justices aren’t going to hear oral argument until April. If they have already made up their minds and no silver-tongued devil can possibly persuade them (and we all know it), why do they need to go through the charade of holding oral argument?

    If the question is still in doubt, why didn’t they grant a stay? The Supreme Court is becoming a caricature of itself.

  19. Compliance presupposes a rule of law, and judges who act consistently. The failure to grant a stay makes no earthly sense unless the Court has already decided the issue. Why don’t they do what lower courts do and issue a decision on the briefs?

    Too many people feel like Ron below, and not without cause.

  20. LawDog,

    Just a guess. The Sixth Circuit decision created a split, but the decision is very weak. Waiting means that real people suffer. Hence, no stay.

    Again, just my guess. All the best.


  21. Yet another example of why judges (at any level) should not be elected. I don’t think there’s any intent here to go all the way to blocking the courthouse door. Justice Moore is pandering to his base by issuing what doesn’t even rise to the level of an advisory opinion and he knows that (I would think). But, by doing so, he has effectively removed political cover from the probate judges, so they are going to play to their bases as well and deny licenses if they want to keep their jobs. Talk about being between a rock and a hard place – grant a license, lose your next election; deny a license, risk criminal contempt of a federal court.

  22. pdga Walker is the rule for negative orders, does not apply to mandatory orders. judges may be in contempt as in concert for not doing an affirmative act, but they might be able to challenge legality on conviction for contempt and lose.. The notion the order is invalid is nonsense.

  23. SLS One of the ironies of your reference to little Rock is that the general who commanded those troops as a civilian lead the opposition to integration at Old Miss.

  24. LawDog,
    I think you are a little confused about how federal courts work. The district court judges (trial judges) are the ones vested by Congress to decide issues of federal law, including constitutional issues. The Supreme Court merely hears appeals under 28 USC § 1254 (there are some limited exceptions to this rule in 28 USC § 1252, but they don’t apply here). 28 USC § 1331 states that “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

    A trial court has decided that the ban on gay marriage is unconstitutional in Alabama. It has issued a final order granting an injunction, and no stay has been issued by an appeals court. Therefore, the ruling must take effect, and the executive is bound to enforce it. Hence my Eisenhower reference to Brown v. Board of Education and Little Rock, Arkansas.


  25. I fully expect some big contrived media event. National Guard troops or an army of FBI agents and Marshalls moving into Alabama. Big march across the Selma bridge. Breathless reports from Brian Williams direct from Mobile. Because this is the biggest civil rights issue of the century!

    But as we all know, there is not a single rational reason for the current marriage laws that have existed since the formation of the Republic. None whatsoever.

    And given the dissent yesterday of Justice Thomas, hasn’t he read Loving? Doesn’t he know his own wife is a Creighton Law grad?

  26. Anon I am sure Justice Thomas is familiar with Loving and knows that the marital definition has changed since the founding of the Republic since he was divorced, not possible at the the Founding, where Colonies followed the Anglican version of RC Cannon Law on marriage, though I believe he did receive a canonical annulment. He must know his wife went to Creighton since he teaches there every other year. Probably looked at the Ecclesiastical Law text from the 17th century in the rare books room there..
    Tried to take your snark seriously but it is truly silly.

  27. Jon m – I used to believe the American Civil War was history, until I moved to the South, and found it is a current event in a number of places. Unfortunately the “Lost Cause of the Confederacy” movement is getting traction, see The Rotten Core of the Lost Cause, by Ed Kilgore in Washington Monthly.

    Ron, and Chief Justice Roy Moore, are essentially claiming interposition and nullification of federal law they don’t like.

    Interposition is an asserted right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Nullification is a theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.

    Dr. Martin Luther King, Jr. referred to “interposition” and “nullification” of racial civil rights during his “I Have a Dream” speech on August 28, 1963 at the Lincoln Memorial:

    “I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

    Ultimately same sex rights will rightly prevail. Not so with disability civil rights in Florida for example, which affect me. Or consumer rights, where a district judge ignored the Dodd-Frank Act to the point of not putting the words “Dodd-Frank” or “Consumer Financial Protection Bureau” in his orders. That’s interposition and nullification, among other things.

    Also see Dixie’s Enemy Within, by Colin Woodward

  28. Repenting: Can you cite authority for the positive/negative distinction you are drawing, in terms of challenging the legality or correctness of the underlying, disobeyed order as a defense to contempt?

  29. There is an 8th Cir case back in seventies called US v DiMauro(sp) which deals with the distinction and a note on the case in Utah L R. I can not recall cite. Fisher Understanding Remedies has a section on this.. The Federal Rule on not reviewing legality in negative cases goes back to a Mine Workers case in the 40s but was at that time not a common state rule. Chaffee wrote an article in Harv L R at time of Mine Workers case. Sorry about lack of cites but no library here at the home.

  30. LawDog, there are probably a lot of reasons to wait on delivering an opinion until after oral argument. Although the vote on the stay appears to have been 7-2, we really have no idea what the internal coalitions are looking like for the case itself. 7-2, 5-4, or 9-0 matters in a landmark opinion and the process of oral argument and writing the opinion might assist in building a stronger majority (although perhaps a more compromised opinion). What would have been the impact of Brown if it had been 5-4 instead of unanimous? Or if it had been per curiam?

    To me, Thomas’ dissent does not presage his vote on the underlying merits of the cases, but an appeal to a process of deference based on a presumed likelihood of prevailing on the merits. I do think that the refusal to grant the stay by the other 7 justices shows which way the wind blows in terms of overall likelihood of prevailing and also the real human dimension to these cases, which is often lost as cases get boiled down to issues presented. The District Court’s order on the injunction details real detriment and ongoing suffering associated with Alabama’s position, there’s no point in letting it continue solely in the name of decorum.

  31. CM,

    This injunction binds the defendant and all his officers, agents, servants and
    employees, and others in active concert or participation with any of them

    (quoting from text Judge RGK posted in his update, emphasis added). That last sentence describes the nature of conspiracy to me.

    The federal statutes and laws defining conspiracy may apply, and they are broad.

    Upwards of one fourth of all federal criminal prosecutions are for conspiracy (On The Origin of “Conspiracy Theory”, quoting Yale Law Journal).

    The link that Judge RGK provided, which takes a look at federal contempt powers, is along those same lines:

    Contempt of court is defined as any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen the authority or dignity of a court.

    It looks like a very large net IMO, and I would say that the judge can have some fun now with the local yokels who have cognitive wiring dysfunction.

    Just sayin’ …

  32. Based on the wording of the injunction, I think that Chief Justice Moore and the probate judges are in the clear on contempt because that injunction does not by it’s own terms only includes the Attorney General and it’s agents. I do want to express some sympathy for the probate judges who are caught in the crossfire of a direct order from their superior versus the clear ruling of a federal judge as to the constitutionality of the law but without a binding injunction upon their offices.

    I have no sympathy for Chief Justice Moore however. Acting like a yokel and mouthing off is a generous description of his actions. Pick up a damn history book and realize that this course of action is not only incredibly stupid, but also has a terrible track record of success in getting what you want.

  33. Thank you for your response, Your Honor. But no matter how you slice it, this smells like three-month-old limburger cheese.

    My question has more to do with the Court telling the world that “we have made up our mind, and no steenkin’ evidence will change it.” At that point, oral argument becomes more like an episode of Mystery Science Theatre 3000.

    Roe v. Wade was 7-2, and it is every bit as good as a 9-0 decision. All I am saying is that if the Court has definitively made up its mind, it might as well issue the decision on the briefs and preserve valuable court time. I know of other cases that deserve their detailed personal attention.

  34. Dawg: The briefs have not yet been filed in the marriage equality cases. The first round of briefs is not due until February 27. So the Court is hardly is a position to issue a decision “on the briefs.” Anyway, it is clear that in a formal sense the Court has *not* “made up its mind,” nor have the Justices individually (although surely most if not all of them have leanings). Decisions on stay applications are based (in part) on reasonable probabilities of success, but not on pre-determined outcomes; there are none in court cases. As for “evidence,” the defenders of restricting marriage rights have done an astoundingly bad job in case after case of marshaling any such evidence, giving rise to the reasonable supposition that none exists. Only on the lowest level of “rational basis scrutiny” (as used by the Sixth Circuit) could even hypothetical justifications for the challenged laws be suggested.

  35. Not at all. Lower courts are free to flip SCOTUS the bird, as they don’t do error-correction.

    Personally, I think it might be a good thing for people to tell our courts that we no longer respect their often-bizarre judgments.

  36. I agree that proponents have made a spectacularly lousy case, but doesn’t procedure matter? If the Court has not made up its mind, and any decision they make can’t really be undone, wouldn’t the prudent course be to issue a stay? It makes a mockery of the process to do otherwise.

  37. Yes, procedure matters. There is a well-settled legal test for granting a stay. If the proponents of laws that exclude same-sex couples from the legal benefits of “marriage” had managed to advance any objectively reasonable basis for their position, they would surely have won a stay pending Supreme Court review. The legal standard for granting a stay very much favors them. But it is not automatic. It is only because of their abject failure and inability to marshal a secular defense for their position that they find themselves in the posture that presently prevails.

  38. Once again, LD, you are much mistaken. You are committing the fallacy of “it’s not wrong if I won’t get caught and punished for doing it.” (This is the exact logical and moral fallacy that many of my criminal clients have fallen prey to.) Lower courts are not free to deny the Supreme Court’s rulings. To the contrary, they are obligated to follow those precedents. The fact that the Supreme Court does not have the resources (or the role) to correct every failure of a lower court to comply with precedent does not mean that lower courts are free to disregard that precedent. Fortunately, whatever you may think, I know for a fact, from 35+ years’ experience, that our legal system and our judges are neither that cynical nor that lawless.

  39. “The Death of The Rule of Law in Alabama”

    by Robert L. McFarland Associate Professor Faulkner University
    Thomas Goode Jones School of Law.

    It’s in Public Discourse this morning. A plausible argument for withholding judgment.

    For the stay.

    And he provides history. Judge Granade talked a good talk for confirmation, that judges should not be legislators.
    That was then.

  40. As a former law clerk at a state high court, I would note the following:
    1) Most cases are taken because the court sees something wrong in the lower court decision. If they had to, the court could probably write a summary reversal in almost any case, but such a summary reversal would be very flawed.

    2) The inclination of justices toward one side or the other is even more set in stone after reading the briefs. In 90% of the case, you would get the same vote for a result after oral argument as you did before it. Oral argument is mostly an opportunity for the justices to get certain unclear points clarified and to try out hypothetical alternative theories on which to base the opinion.

    3) Any tentative leanings do not really become firm until the justice and a law clerk sit down and work through the record and draft an opinion applying a legal theory to the facts. Sometimes that close review of the record tosses the inclination out the window (e.g., the facts as understood earlier are not the real facts) or crystalizes a legal theory (e.g. in the same-sex marriage case, can relief be granted under rational basis review or is a higher standard needed).

  41. Kathleen, Mr. McFarland teaches at a religious college “predicated on the conviction that the Bible is the inspired word of God.” Even if he didn’t, it’s hard to take his arguments seriously. They sound more like sour grapes than reasoned legal discussion.

  42. I happen to know for a fact that our legal system is that cynical and that lawless. See Judge Kozinski’s dissent from en banc review in Silviera v. Lockyer. He reveals the secrets of freemasonry, which everyone can see if they take the time to look.

  43. My thought is that it is way too early. I agree with the SSM proponents, but the Court has to at least appear that it has an open mind, especially before they have read the briefs.

  44. Mr. McFarland knows exactly who he is. Can we say the same about the Supreme Court justices handicapping this case? I don’t mind a bias I can see.

    I take his arguments very seriously because they make plain the other side. Law is adversarial. A collision of arguments. What are the arguments?

    I am a Roman Catholic. Roman Catholic theology and tradition teach that the Bible is the inspired Word of God communicated through one of the Trinity, the Holy Spirit. Religious schools and colleges are nothing new to me. My father graduated from the University of Notre Dame. He and mom saw to it that my sisters and I attend Holy Angels Academy, opening up his wallet to pay tuition on top of public school taxes. So what’s the problem? I don’t mind a bias I can see.

    Mr. McFarland has a tone of bitterness but to me, this is a great time to be alive. A great time to do good. The judge would consider this a yokel speaking. So be it.

  45. Luckily, Kathleen, neither your religious convictions nor mine (if any) play a role in U.S. Constitutional deliberations, though Scalia may disagree. As you probably know, if you have studied it, God does not make an appearance in the Constitution. Judge Roy Moore attempted to invite a religious icon into his courthouse, but was rebuffed in Glassroth v. Moore.

    The entire decision of the 11th Circuit makes wonderful bedtime reading, but here is a decisive paragraph in case you don’t have time to wade through all 70 pages:

    “The breadth of the Chief Justice’s position is illustrated by his counsel’s concession at oral argument that if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court’s courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench.   Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises.   A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building.   Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.”

    Have a wonderful Valentine’s day.

  46. That’s my point. I don’t mind a bias I can see, and hear, and counsel did not hide them, did he? I am capable of filtering the legal issues behind (or in front of) the bias. I think Mr. McFarland has done that.

    I will read the 70 pages, concededly I have not yet. I have been forced to study the constitution and duh, haven’t seen God in it, but have noticed that the Court blows with the wind with its balancing tests. If the paragraph is “a decisive” one maybe it shouldn’t be that way. So he’s a crank. I have practiced before cranks and outliers and they get upheld on appeal nonetheless.

  47. Pingback: Alabama, Roy Moore, and standing still | The Mind of Brosephus

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