Mobile Couple’s Attorneys Rebut State’s Defense of Alabama Marriage Ban

Attorneys for a Mobile couple challenging Alabama’s ban on recognizing same-sex marriages filed a sharp rebuttal this month to the state Attorney General’s Office, arguing that its defense of the law rests on faulty legal reasoning and unsupported predictions rather than evidence.

The case centers on Kimberly McKeand and Cari Searcy, who married in California and have raised a son together since his birth. Alabama officials denied Searcy’s request to complete a second-parent adoption of the boy, citing the state’s constitutional ban on same-sex marriage. The case is one of three lawsuits moving through federal court seeking to overturn that ban, with U.S. District Judge Ginny Granade expected to rule after a mid-November deadline for final motions.

In their filing, attorneys David Kennedy and Christine Hernandez pushed back point by point against arguments from Attorney General Luther Strange’s office. They argued that a 1972 U.S. Supreme Court case cited by the state, which let stand a Minnesota ruling against a same-sex couple, has been effectively abandoned by later rulings, including a 2013 decision striking down part of the federal Defense of Marriage Act.

The attorneys also rejected the state’s reliance on a Louisiana federal court ruling upholding that state’s marriage ban, calling it an outlier among the courts that have examined similar bans. They further dismissed warnings that recognizing same-sex marriages could destabilize the institution over time, writing that the state’s argument amounted to unsupported speculation rather than legal analysis.

On the question of parenting, the filing cited research indicating children raised by gay parents fare no worse than those raised by heterosexual parents, arguing the state offered no evidence to the contrary. The attorneys noted that Alabama has never questioned McKeand’s fitness as a parent, and argued the couple’s son would be left without a legal second parent, and without inheritance or custody protections, if the state’s position prevails. They noted the child’s biological father had already signed away his parental rights, meaning a ruling against the couple could leave the boy with no legal father and no adoptive second parent should Searcy pass away.

The filing also argued that Alabama’s ban amounts to unconstitutional discrimination under the 14th Amendment’s Equal Protection Clause, drawing a comparison to the reasoning used in the 2013 Defense of Marriage Act ruling.

Background on the cases cited

The 1972 case the state relied on is Baker v. Nelson, in which the U.S. Supreme Court dismissed a Minnesota same-sex couple’s appeal “for want of a substantial federal question.” The 2013 decision is United States v. Windsor, which struck down the section of the Defense of Marriage Act that barred federal recognition of same-sex marriages.

Alabama’s ban is written into the state constitution through the Sanctity of Marriage Amendment, which voters approved in 2006 with about 81 percent of the vote.

Update: Judge Granade ruled for McKeand and Searcy in January 2015, finding Alabama’s ban unconstitutional. The U.S. Supreme Court settled the question nationally in June 2015 with Obergefell v. Hodges.