1301 K Street, NW Suite 850, East Tower Washington, DC 20005

(202) 466-3234 (202) 898-0955 (fax) www.au.org

February 20, 2015 Hon. Patrick Davenport, Probate Judge Houston County P.O. Box 6406 Dothan, AL 36302-6406

Dear Judge Davenport:

We write to you again on behalf of local same-sex couples that have been unable to obtain marriage licenses from your Probate Court. Your continued refusal to issue marriage licenses to same-sex couples is inconsistent with the federal Constitution and your sworn obligation as a judicial officer of the state of Alabama. Moreover, your actions—in overt defiance of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution—violate Alabama’s Canons of Judicial Ethics in several regards. We thus once again insist that you immediately take steps to ensure that marriage licenses are made available to all qualified marriage-license applicants, regardless of sexual orientation or gender. If you persist in your refusal, we will be forced to lodge a complaint with the Alabama Judicial Inquiry Commission, requesting that the Commission recommend that you face charges in the Court of the Judiciary.

As you know, on January 23, 2015, the United States District Court for the

Southern District of Alabama entered judgment in Searcy v. Strange, No. 14-0208-CG-N, (S.D. Ala. Jan. 23, 2015), declaring Alabama’s Marriage Protection Act and Sanctity of Marriage Amendment invalid under the federal Constitution and holding that the State must recognize same-sex marriages performed out-of-state. On January 26, 2015, that same federal court entered a preliminary injunction in Strawser v. Strange, No. 1:14-CV-424-CG-C (S.D. Ala. Jan. 26, 2015), holding that the federal Constitution prohibits the State from denying marriage licenses to same-sex couples. On February 9, 2015—after both the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court declined to disturb the injunction—the federal District Court lifted the stay on its decision. Finally, on February 12, 2015, the District Court extended the preliminary injunction to include Mobile County Probate Judge Don Davis, “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 or fail to recognize same-sex marriage.” Order, Searcy v. Strange, No. 14-0208-CG-N (S.D. Ala. Feb. 12, 2015). Subsequently, Probate Judges around the

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State have begun issuing marriage licenses to all couples, same-sex and different-sex alike.

Your office, however, still refuses to comply with the clear mandate of the

federal constitution. In addition to running afoul of the federal constitution, this action violates the fundamental prohibition set forth in Alabama Canon of Judicial Ethics 3(A)(1) that you “be faithful to the law and … be unswayed by partisan interests, public clamor, or fear of criticism.” In refusing to comply with the clear constitutional obligations set forth in the federal district court’s order, which the Eleventh Circuit and the United States Supreme Court chose not to disturb, you have turned a blind eye to federal law and the Supremacy Clause of the United States Constitution, which provides that “[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art VI. Your express rejection of foundational constitutional principles constitutes a clear lack of faithfulness to the law.

Moreover, your actions foster disrespect for the dignity of the judiciary,

undermine public confidence in the integrity of the judiciary, and prejudice the administration of justice in violation of Alabama Canons of Judicial Ethics 1 and 2. Canon 1 obligates all probate judges to observe “high standards of conduct so that the integrity . . . of the judiciary may be preserved.” Canon 2(A) requires that they “conduct [themselves] at all times in a manner that promotes public confidence in the integrity . . . of the judiciary.” These Canons obligate probate judges to exhibit conduct that upholds the integrity of the judiciary as the impartial branch of our government on which all Alabamians can rely for equal justice under the law. Instead, you have willfully manifested faithlessness to our most fundamental principles of law, and have taken affirmative steps to undermine the dignity, confidence, and integrity of the judiciary.

As explained in our letter of February 11, 2015, your obligation to comply

with the federal Constitution—which has now been interpreted to forbid discrimination against same-sex couples with respect to the issuance of marriage licenses—must take precedence over any contrary state laws or obligations. See U.S. Const., art VI. (“This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.”). Since that letter, your constitutional obligation has become more clear.

For these reasons, we insist that you immediately begin issuing marriage

licenses to all qualified applicants, regardless of sexual orientation or gender.

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Sincerely, Ayesha N. Khan Legal Director