There’s been a lot of confusion and misinformation about the situation in Alabama, so I thought it would be helpful to do a rough outline of what has happened so far and the legal issues in play. Be aware that the following is greatly simplified.

• The original federal defendant was Alabama attorney general Luther Strange. The initial order from the federal judge (Judge Callie Grenade) was only against him and other state officials acting in concert with him.
• Judge Grenade’s order was a “preliminary injunction,” which is sort of a temporary emergency order that stays in place for the duration of the case. It’s not a final judgment, so theoretically she could come to a different conclusion at the end of the case. As a practical matter, though, the handwriting is on the wall.
• Judge Grenade temporarily stayed this order to let the Eleventh Circuit Court of Appeals and the U.S. Supreme Court have a chance to review it before it went into effect. Those courts decided not to block it. Again, these are just preliminary orders. They’re not binding on Judge Grenade as to the final judgment, and they’re not binding precedent on any other court. But again, the handwriting is on the wall.
• Once Judge Grenade’s stay expired after the Eleventh Circuit and the Supreme Court declined to block her injunction, the marriages started.
• The problem is that the Attorney General of Alabama and his department aren’t the ones who issue marriage licenses. In Alabama, that’s done by county probate judges. Note that in doing this, the probate judges are acting in a “ministerial” capacity rather than a “judicial” capacity. In other words, the job of issuing a marriage license is more like something a bureaucrat does, not an actual lawsuit with a trial, appeals, etc. This is important because federal judges normally can’t issue injunctions against state judges, much less reverse them like an appeals court.
• So while some probate judges started issuing marriage licenses, some concluded that they weren’t bound by Judge Grenade’s order and refused.
• Then Alabama Chief Justice Roy Moore, purporting to act as some sort of statewide supervisor of all the probate judges in the state (I don’t know if that’s actually true under Alabama law) ordered them to stop.
• Meanwhile, Judge Grenade made it clear that her preliminary injunction only applied to the parties before her, not all the probate judges in the state. So she wouldn’t hold any probate judges in contempt for not issuing marriage licenses. She said that they were obligated to issue licenses, but that was because of the Constitution, not because of her order. Of course, people disagree about what the Constitution means.
• But the plaintiffs asked Judge Grenade to add Mobile County probate judge Don Davis to the lawsuit and order him to issue licenses to the plaintiffs. She happily obliged.
• Note also that there were only a handful of couples who were plaintiffs to the original lawsuit. Another important principle is that a court order normally only applies to the actual parties to the case. Put another way, Judge Davis was only ordered to issue licenses to the specific plaintiffs in Judge Grenade’s case. He wasn’t technically required to issue licenses to anyone else because technically, no one had asked Judge Grenade to order him to. (But again, handwriting.)
• Here’s where the full Alabama Supreme Court gets involved. Some conservative groups petitioned them for what’s called a “writ of mandamus.” This is an unusual proceeding in which a court orders an official to do something required by law or to not do something prohibited by law. It’s not at all clear that this was procedurally proper, for a lot of very technical reasons. They could have punted if they wanted. Nonetheless . . .
• The Alabama Supreme Court ordered all the probate judges in the state to stop issuing licenses. (They actually gave Judge Davis a bit of a pass since he was under a federal court order; he had to explain to them whether he thought that he was required to issue licenses to anyone else or just the plaintiffs in Judge Grenade’s case.)
• Their reasoning went something like this: no probate judge has been ordered to issue licenses to all same-sex couples. A federal trial judge can’t give us an order about what to do in this mandamus case, and her order isn’t binding precedent because federal trial judges’ orders never are. The Eleventh Circuit’s order was just a preliminary order, and anyway they’re not the appeals court that reviews us, so what they say isn’t binding precedent on us. The U.S. Supreme Court’s decisions are binding on us, but they haven’t spoken yet; their denial of the request to stay Judge Grenade’s order was just preliminary. Plus, we disagree with Judge Grenade about whether the Constitution requires marriage equality. So that leaves Alabama’s constitution, which bans same-sex marriage, as the controlling law.
• Believe it or not, most of this is technically correct. While the Constitution does have a “supremacy clause” under which federal law trumps state law, this only applies if there’s binding precedent about what the federal law is. And as we’ve seen, until the U.S. Supreme Court puts the issue to bed this summer, there is no federal decision binding on the Alabama Supreme Court requiring marriage equality.
• Still, in a normal case, most state court judges are going to stay away from this sort of situation if they possibly can, despite all these technical issues. Judges have other things to do, and as discussed above, the handwriting is on the wall, so why waste their time? So this is highly relevant.
• But this is Alabama, with all its conservative, fundamentalist Christian psychodrama. Plus, these are elected judges.
• So we got a convoluted, bloated, hideously offensive order blocking every probate judge in the state from issuing marriage licenses to same-sex couples. Marriages grind to a halt.
• But the federal plaintiffs and their lawyers aren’t done, and neither, I suspect, is Judge Grenade. What they’ve now done is ask the judge to convert the case into a class action. A class action is a lawsuit in which the parties are not just the ones named in the court papers. The named plaintiffs are asking for relief on behalf of themselves and also “all others similarly situated.” This is a “plaintiff class”: the actual plaintiffs before the court are every same-sex couple in Alabama that wants to get married.
• They have also named a couple of probate judges as representatives of a “defendant class” comprising every probate judge in the state. This “class vs. class” type of case is what lawyers sometimes call a “bilateral class action.”
• So if Judge Grenade goes along with this (which she probably will; in a prior order she practically invited the lawyers to do this), the real parties to the case will be “all the gays vs. all the judges.” This means that if the judge allows it, every probate judge in the state will be under an injunction, and every same-sex couple in the state can take advantage of the injunction. If any probate judge refuses to issue a license to a same-sex couple, he or she could be held in contempt by Judge Grenade.
• The drawback to a class action is that it’s more complicated and could take more time. The judge has to “certify” the classes and make sure they meet certain legal requirements. That means more briefing and hearings, and there could also be a new round of appeals. But the plaintiffs’ lawyers have asked her to expedite the process.

So that’s where we are. If I had to guess, I’d say that Judge Grenade will certify the classes and grant the injunction as soon as she can. She’ll be careful because she doesn’t want to get reversed on a technicality, so I don’t know how long this will take, but I’m guessing that the weddings will start again before the U.S. Supreme Court decision this June.

There’s been talk of arresting judges to enforce a federal order or even “sending in the troops” like Eisenhower did in Little Rock, but I doubt this will happen. No one wants that sort of dangerous spectacle, and the law has procedures to resolve the dispute without it. We might see some probate judges get fined or resign rather than comply, but I doubt Roy Moore is going to Leavenworth, satisfying as that would be.

TL;DR: Conservative judges in Alabama are making it complicated, but love will win out.