The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over at Prawfs, Howard Wasserman has an interesting commentary about the legal mess right now in Alabama over whether probate judges should issue marriage licenses to same-sex couples. From Howard's post:
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions. . . . We are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect-it is persuading some actors, not persuading others . . . .
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time-once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.