Alabama LGBT Laws

On 21 May 2019, Alabama Public Television reportedly refused to broadcast the well-received Season 22 premiere of the PBS Kids show on 13 May. Instead of the new episode about same-sex marriage, the network aired a repeat of an old episode. The Alabama network has no plans to air the new episode titled ”Mr. Ratburn & the Special Someone” in the future [R1.1].

On 27 February 2015, the Alabama Court of Civil Appeals withdrew its 24 October opinion ruling that VL, a woman who separated from her same-sex partner EL in Georgia can pursue visitation rights in Alabama. Held that a second parent adoption granted to now separated same-sex parents by a Georgia court in 2007 must be recognized in Alabama, and that the adoptive mother of the couple’s three children must be recognized as their parent and allowed to seek custody or visitation [C1.8], [R1.7].

On 24 October 2014, the Alabama Court of Civil Appeals ruled that Jefferson County District Court Judge Raymond P Chambliss erred in granting a woman (V.L.) visitation rights to three children she had parented with her former same-sex partner (the birth mother E.L.), based on a Georgia court ruling that approved the woman’s adoption of the children four years before the couple separated. The Court also found that the Georgia court, under its state laws, did not have the authority to grant that adoption [C1.6], [R1.5].

On 25 July 2013, a circuit judge in Mobile County granted standard visitation rights to a lesbian mother without any overnight restriction on unmarried partners [R1.4].

In February 2002, the Alabama Supreme Court in a 9–0 decision took custody of three teenage children away from their lesbian mother, awarding custody of the children to their father [R1.3].

In the court’s opinion, Chief Justice Roy Moore wrote, “common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.” Moore went on to say that homosexuality is “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature.”

Previously:

On 01 June 2001, Court of Civil Appeals ruled 4–1 in a child custody case that a homosexual mother would provide a better home than a heterosexual father who abused the children [R1.2].

On 26 June 1998, a 7–0 decision of the Alabama supreme court, overturned the decision of an appeals panel, removing a child from the custody of her lesbian mother, finding that the woman exposed her daughter to a lifestyle that is illegal in Alabama [R1.1].

There is no known State law or municipal ordinance recognising or extending benefits to domestic partners in Alabama.

In October 2009, the University of Alabama at Birmingham was preparing to offer health insurance benefits to same-sex partners of its faculty and staff from 01 January 2010 [R1.1].

Alabama does not have a state-wide law prohibiting discrimination based on sexual orientation.

On 23 April 2018, the City of Montevallo reportedly passed a city-wide non-discrimination ordinance protecting residents from discrimination on the basis of sexual orientation and gender identity in housing, public accommodations, and employment [R2.2].

On 26 September 2017, the Birmingham City Council became the first city in the State to pass 7-0 city-wide non-discrimination protections that include sexual orientation and gender identity in housing, public accommodations and employment. Violators of the ordinance could incur a fine of $100 for a first office, $200 for a second offense, and $500 for a third or subsequent offense [R2.1].

On 29 October 2015, whilst US District Judge Myron H. Thompson of the Middle District of Alabama rejected the employment discrimination claim of Roger Isaacs, he agreed with the 16 July 2015 Equal Employment Opportunity Commission view that claims of sexual orientation-based discrimination are cognizable under Title VII of the Civil Rights Act of 1964 and that gender non-conformity would also support a claim of sex discrimination under Title VII [C3.4], [R3.3].

In 1997, gay-rights proponents won an important case when a federal court of appeals concluded the University of Alabama could not refuse to fund a gay student organization. Such a refusal, the court concluded, violated the rights of association of the University’s gay and lesbian students [R3.2].

In February 1997, the 11th Circuit US Court of appeals heard a challenge to an Alabama law which seeks to prevent “any college or university from spending public funds or using public facilities … to sanction, recognise, or support any group that promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws” [R3.1].

On 17 November 2015, Chief US District Judge W Keith Watkins denied Pat Fancher’s Request for Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief Pending Appeal in the Paul Hard case. Fancher sought to prevent wrongful death funds being released to Paul Hard [C1.3].

On 29 July 2015, Chief US District Judge W Keith Watkins ordered that $552,956.69 plus accrued interest, the proceeds of the wrongful death claim of Paul Hard, whose partner Charles David Fancher died in a car accident in 2011, be paid to Paul Hard. The couple were married in Massachusetts in May 2011 and an amended death certificate recognizing Hard as his husband’s surviving spouse was issued 09 February, the day the US Supreme Court denied the State’s request for a same-sex marriage stay [C1.2], [R1.1].

On 24 April 2001, the Alabama House voted 45–42 to include sexual orientation in a state law that provides additional penalties for hate crimes [R2.1].

On 14 December 2014, Blue Cross Blue Shield was reported to have begun offering lawfully married out-of-state couples spousal coverage for underwritten plans in early 2014 [R1.1].

On 21 December 2012, US District Court Judge Myron H Thompson ruled that segregating prisoners based on their HIV status is a violation of the Americans with Disabilities Act and denied them equal access to prison rehabilitative programs [C1.3], [C1.2], [R1.1].

The criminal law in Alabama prohibits consensual sex between same-sex couples [L1.1 – L1.3]

See: 2. Courts & Tribunals.

The Code of Alabama 1975, Title 13A Criminal Code, Chapter 6 Offenses involving danger to the person, Article 4 Sexual Offences –

Section 13A-6-63 Sodomy in the first degree. [L1.1]

(a) A person commits the crime of sodomy in the first degree if:

(1) He engages in deviate sexual intercourse with another person by forcible compulsion; or

(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.

(b) Sodomy in the first degree is a Class A felony.

(Acts 1977, No. 607, p. 812, §2315.)

Section 13A-6-64 Sodomy in the second degree [L1.2]

(a) A person commits the crime of sodomy in the second degree if:

(1) He, being 16 years old or older, engages in deviate sexual intercourse with another person less than 16 and more than 12 years old.

(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being mentally defective.

(b) Sodomy in the second degree is a Class B felony.

(Acts 1977, No. 607, p. 812, §2316; Acts 1979, No. 79-471, p. 862, §1; Acts 1987, No. 87-607, p. 1056, §3.)

Section 13A-6-65 Sexual misconduct [L1.3]

(a) A person commits the crime of sexual misconduct if:

(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by Sections 13A-6-61 and 13A-6-62; or with her consent where consent was obtained by the use of any fraud or artifice; or

(2) Being a female, she engages in sexual intercourse with a male without his consent; or

(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64. Consent is no defense to a prosecution under this subdivision.

(b) Sexual misconduct is a Class A misdemeanor.

(Acts 1977, No. 607, p. 812, §2318.)

On 13 June 2014, the Court of Criminal Appeals ruled that the part of Title 13A-6-65(a)(3) of the Alabama Code 1975, the sexual misconduct law used against consensual oral and anal sex, was unconsititutional [C2.4], [R2.3].

In June 2003 the US Supreme Court ruled in Lawrence & Garner -v- Texas that a similar the law in Texas was an unconstitutional violation of privacy. The ruling is thought to nullify or invalidate the Alabama law [C2.2], [R2.1].

On 23 May 2019, the legislature finally approved Bill SB69 that would replace marriage licenses with a new form called a marriage certificate that does not have to be signed before the wedding by the judge of probate. The House of Representatives voted 67-26 for the bill. It had already passed the Senate. The Bill now goes to Governor Kay Ivey for her signature [R1.5].

On 16 March 2016, the Senate passed, 23-3 with 9 abstentions, Senate Bill 143 that would replace state issued marriage licences with a form and certain affidavits for both gay and straight couples to record their marriage with the office of the judge of probate. The Bill is yet to be debated in the House [R1.4].

On 08 January 2016, despite the Administrative Order issued by Chief Justice Roy Moore on 06 January (see below), Madison and Lawrence counties and the Mobile County Probate Court were reported to have resumed issuing marriage licenses Thursday and Friday respectively. See Courts & Tribunals below at [R2.33].

On 03 October 2015, Alabama judges were reported to be avoiding issuing marriage licenses by relying upon a 1961 mixed-marriage, racial segregation law (Alabama Code Section 30-1-9) stipulating that “Marriage licenses may be issued by the judges of probate of the several counties”. The discretionary word ‘may’ being relied upon [R1.3].

On 17 May 2004 the Alabama Legislature ended its regular session without voting on a proposed constitutional amendment to ban gay marriages in Alabama [R1.2].

The constitutional amendment, which would have required approval by Alabama voters, would have defined marriage as being between a man and a woman [R1.2].

Alabama already has a law that bans same-sex marriages, but it is not part of the state constitution.

In 1998, the Anti-Marriage Bill was adopted and signed into law by Governor Fob James (R), after being blocked in 1996 and 1997 [L1.1].

The law now restricts marriage to opposite-sex couples and declares invalid any lawful marriages between same-sex couples in another State.

On 28 July 2017, the Alabama Court of Civil Appeals denied the petition of lesbian mother Tiara Brooke Lycans, in her divorce case against husband Zachary Thomas Lycans, seeking to have trial Judge Shaunathan C Bell recuse himself from the case because of his stance against homosexuality [C2.39], [R2.38].

On 07 June 2016, US District Judge Callie Granade issued an order granting a motion for permanent injunction and final judgment in the James N Strawser v. Luther Strange same-sex marriage case [C2.37], [R2.36].

On 05 March 2016, the Alabama Supreme Court dismissed all pending motions and petitions filed by the Alabama Policy Institute, Alabama Citizens Action Program, and John Enslen, Probate Judge for Elmore County, seeking to maintain that the state’s earlier ban on same-sex marriages could still be enforced, despite the US Supreme Court order in Obergefell v. Hodges [C2.35], [R2.34].

On 08 January 2016, despite the Administrative Order issued by Chief Justice Roy Moore on 06 January (see below), Madison and Lawrence counties and the Mobile County Probate Court were reported to have resumed issuing marriage licenses Thursday and Friday respectively [R2.33].

On 06 January 2016, Chief Justice Roy Moore issued an Administrative Order: “Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect” [D2.32], [R2.31].

On 13 October 2015, on the Motion to Dismiss filed by the Defendants, Judge R. David Proctor in the United States District Court for the Northern District of Alabama, Southern Division dismissed without prejudice the same-sex marriage case of ‘April Aaron-Brush v. Robert Bentley’ [C2.30], [R2.29].

On 21 May 2015, Judge Callie V S Granada in the US District Court for the Southern District of Alabama ordered that her ruling invalidating the state’s marriage equality ban as unconstitutional be effective statewide, but in a second order, stayed her decision until final determination of the larger marriage equality issue currently pending before the US Supreme Court [C2.28], [C2.27], [R2.26].

On 12 March 2015, Madison County Circuit Judge Karen Hall certified the uncontested divorce application of Shrie Michelle Richmond (Tinsley) and Kirsten Allysse Richmond. Hall cited the couple’s stated “incompatibility of temperament”. The couple married in Iowa in 2012, where a residency of one year must be established to meet divorce requirements [R2.25].

On 03 March 2015, the Alabama Supreme Court ordered (7-1) all probate judges to stop issuing licenses to same-sex couples, and they added all probate judges to the petition to make sure they comply. Couples will still be able to sue in federal court for the right to get married in the state [C2.24], [R2.23].

On 12 February 2015, US District Court Judge Callie V S Granade ordered Mobile County Probate Court Judge Don Davis to issue marriage licenses to the same-sex couples in the James N Strawser, et al., v. Luther Strange case [C2.22], [R2.21].

On 09 February 2015, the US Supreme Court denied (7-2) Alabama’s request to put same-sex marriages on hold pending the appeal of two cases, meaning same-sex marriages may now proceed in Alabama. Justice Thomas and Justice Scalia dissented [C2.20], [R2.19].

On 03 February 2015, the Court of Appeals for the Eleventh Circuit denied Alabama Attorney General Luther Strange’s motion for an extended stay in a brief order that clears the way for the conservative state to become the 37th in the United States to allow gay couples to wed. The Order consolidated the Cari D Searcy, Kimberly McKeand v. Attorney General, State of Alabama, James N Strawer, John E Humphrey v. Attorney General, State of Alabama csaes [C2.18], [R2.17].

On 28 January 2015, US District Judge Callie V S Granade made a further order clarifying her 23 January summary judgment declaring that Alabama’s laws prohibiting same-sex marriage and prohibiting recognition of same-sex marriages performed legally in other states are unconstitutional and her order, which she stayed, is not limited to to the same-sex couple that filed the case. The Alabama Probate Judges Association had made press statements that despite the court’s ruling, they must follow Alabama law and cannot issue marriage licenses to same-sex couples. If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period, the court’s stay will be lifted on 09 February 2015 [C2.16], [R2.15].

On 26 January 2015, Judge Allie S Granade in the US District Court struck down Alabama’s ban on marriage between same-sex couples for a second time in one week, ruling in favor James Strawser and John Humphrey, who are unmarried and wish to marry in their home state of Alabama [C2.14], [R2.13].

On 26 January 2015, Judge Allie S Granade in the US District Court agreed to a fourteen-day stay of her 23 January judgment (until 09 February) pending an appeal to the US Court of Appeals for the Eleventh Circuit. A Time Sensitive Motion to Stay was filed in the Eleventh Circuit 26 January 2015 [C2.12], [R2.11].

On 23 January 2015, Judge Allie S Granade in the US District Court granted a summary judgment in a case challenging Alabama’s ban on recognizing same-sex marriages performed outside of the state. The Court further found the same-sex marriage ban unconstitutional. There was no stay however, the State Attorney General has filed a Motion for a Stay [C2.10], [C2.9], [R2.8].

On 10 June 2014, a complaint was filed in the US District Court for the Northern District of Alabama by the ACLU on behalf of same-sex couple April and Ginger Aaron-Brush who married in Massachusetts in 2012 [C2.7], [R2.6].

On 07 May 2014, attorneys for Cari Searcy and Kimberly McKeand filed papers in the US District Court for the Southern District of Alabama complaining that the non-biological mother cannot adopt their own son because the State doesn’t recognise the couple’s marriage [C2.5], [R2.4].

On 12 March 2014, in the uncontested divorce of Shrie Michelle Richmond and Kirsten Allysse Richmond, who were married in Iowa, 23rd Judicial Circuit Court Judge Karen Hall ordered, “This cause of action is hereby dismissed for failure to state a claim upon which relief can be granted pursuant to the laws of this State”. Iowa law requires couples seeking a divorce in the state to live there for one year beforehand [R2.3].

On 16 December 2013, the Southern Poverty Law Center filed a federal lawsuit on behalf of Paul Hard challenging the Alabama laws that prohibit the recognition of his marriage, which was legally performed in Massachusetts [C2.2], [R2.1].

On 03 May 2017, Governor Kay Ivey signed House Bill 24, the Alabama Child Placing Agency Inclusion Act protecting faith-based adoption organizations that refuse to place children with gay parents or other households because of their religious beliefs [L1.3], [R1.2].

Previously:

There is no statutory ban preventing single gay men and lesbians adopting children in Alabama. There is no clear prohibition on joint adoption and second-parent adoption is allowed in some areas.

The Code of Alabama 1975, Title 26 Infants and Incompetents, Chapter 10A Alabama Adoption Code [L1.1].

Section 26-10A-5 Who may adopt (emphasis added)

(a) Any adult person or husband and wife jointly who are adults may petition the court to adopt a minor.

(1) No rule or regulation of the Department of Human Resources shall prevent an adoption by a person solely because the person is employed outside the home, provided however, the Department of Human Resources may exercise sound discretion in requiring the person to remain in the home with a minor for a reasonable period of time when a particular minor requires the presence of that person to ensure his or her adjustment. Provided, however, the reasonable period of time shall not exceed 60 consecutive calendar days.

(2) No rule or regulation of the Department of Human Resources or any agency shall prevent an adoption by a single person solely because such person is single or shall prevent an adoption solely because such person is of a certain age.

(3) Provided however, in cases, where one who purports to be the biological father marries the biological mother, on petition of the parties, the court shall order paternity tests to determine the true biological father. If the court determines by substantial evidence that the biological father is the man married to the biological mother, then the biological father shall be allowed to adopt the child without the consent of the man who was married to the biological mother at the time of the conception or birth of the child, or both, when the court finds the adoption to be in the best interest of the child.

(b) Any adult may petition the court to adopt another adult as provided in this chapter.

(Acts 1990, No. 90-554, p. 912, §5, Act 98-101, p. 118, §1.)

On 27 May 2016, in accordance with the US Supreme Court ruling in V.L. v. E.L., (2016), the Alabama Supreme Court vacated its 18 September 2016 ruling that refused to recognize a same-sex adoption from Georgia and denied visitation rights to one of the lesbian mothers [C2.21], [R2.20].

On 07 March 2016, the US Supreme Court overturned a ruling by the Alabama Supreme Court that refused to recognize an adoptive woman as a parent whose former partner bore them three children, finding the adoption invalid under Georgia law. The Court said ”the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit” [C2.19], [R2.18].

On 14 December 2015, the US Supreme Court temporarily stayed the Alabama Supreme Court decision that refused to recognize an adoption by V.L. the non-biological lesbian mother of her three children granted by a Georgia court in 2007 and consented to by the birth mother E.L. at the time, pending further hearing [C2.17], [R2.16].

On 18 September 2015, the Alabama Supreme Court refused to recognize an adoption by V.L. the non-biological lesbian mother of her three children granted by a Georgia court in 2007 and consented to by the birth mother E.L. at the time, finding that the Georgia court didn’t properly apply Georgia law, believing it did not allow same-sex parents to adopt [C2.15], [R2.14].

On 24 July 2015, retired Baldwin County Circuit Court Judge James Reid in the Mobile County Probate Court granted the adoption of Khaya Ray Searcy by Cari Searcy, whose partner Kim McKeand is Khaya’s natural mother. Chief Justice Moore appointed Judge Reid to oversee the case which has been before the courts for nine years [R2.13].

On 26 March 2015, US District Judge Callie Granade dismissed the Cari D Searcy v. Don Davis lawsuit on Searcy’s motion to dismiss, saying Mobile County Probate Judge Don Davis had removed disputed language from his order and recused himself from her case [R2.12].

On 02 March 2015, US District Judge Callie V.S. “Ginny” Granade agreed to postpone the hearing of the Cari D Searcy v. Don Davis case, giving Searcy’s lawyers until Friday to respond to the motion to quash the subpoena. Lawyers for Davis will have until March 11 to respond to that. The judge did not set a new date for the hearing [R2.11].

On 27 February 2015, the Alabama Court of Civil Appeals withdrew its 24 October opinion ruling that VL, a woman who separated from her same-sex partner EL in Georgia can pursue visitation rights in Alabama. Held that a second parent adoption granted to now separated same-sex parents by a Georgia court in 2007 must be recognized in Alabama, and that the adoptive mother of the couple’s three children must be recognized as their parent and allowed to seek custody or visitation [C2.10], [R2.9].

On 24 October 2014, the Alabama Court of Civil Appeals ruled that Jefferson County District Court Judge Raymond P Chambliss erred in granting a woman (V.L.) visitation rights to three children she had parented with her former same-sex partner (the birth mother E.L.), based on a Georgia court ruling that approved the woman’s adoption of the children four years before the couple separated. The Court also found that the Georgia court, under its state laws, did not have the authority to grant that adoption [C2.8], [R2.7].

On 25 February 2014, US District Judge Callie V S Granade ordered [C2.6] the hearing of the motion for preliminary and permanent injunction filed by Cari D Searcy seeking formal adoption of her spouse Kimberley McKeand’s child KS – refused by Probate Judge Don Davis on 20 February [C2.5] – be scheduled for 02 March 2015 [R2.4].

On 07 May 2014, attorneys for Cari Searcy and Kimberly McKeand filed papers in the US District Court for the Southern District of Alabama complaining that the non-biological mother cannot adopt their own son because the State doesn’t recognise the couple’s marriage [C2.3], [R2.2].

On 12 October 2012, Presiding Judge Bill Thompson for the Alabama Court of Civil Appeals ruled that Cari Searcy, a Mobile County woman, can’t adopt her female partner Kimberly McKeand’s child because of Alabama’s law that defines marriage as being between a man and woman [R2.1].

On 17 November 2015, Chief US District Judge W Keith Watkins denied Pat Fancher’s Request for Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief Pending Appeal in the Paul Hard case. Fancher sought to prevent wrongful death funds being released to Paul Hard [C1.3].

On 29 July 2015,Chief US District Judge W Keith Watkins ordered that $552,956.69 plus accrued interest, the proceeds of the wrongful death claim of Paul Hard, whose partner Charles David Fancher died in a car accident in 2011, be paid to Paul Hard. The couple were married in Massachusetts in May 2011 and an amended death certificate recognizing Hard as his husband’s surviving spouse was issued 09 February, the day the US Supreme Court denied the State’s request for a same-sex marriage stay [C1.2], [R1.1].