IN THE SUPREME COURT OF ALABAMA

Ex parte STATE ex rel. ALABAMA

POLICY INSTITUTE and ALABAMA
CITIZENS ACTION PROGRAM,
V.

Petitioner,

ALAN L. KING, in his official

capacity as Judge of Probate for
Jefferson County, Alabama,
ROBERT M. MARTIN, in his official
capacity as Judge of Probate for
Chilton County, Alabama,
TOMMY RAGLAND, in his official
capacity as Judge of Probate for
Madison County, Alabama,
STEVEN L. REED, in his official
capacity as Judge of Probate for
Montgomery County, Alabama, and
JUDGE DOES **1-63, each in his or
her official capacity as an
Alabama Judge of Probate,

CASE NO. 1140460______

Respondents.
__________________________________/
ANSWER OF PROBATE JUDGE JOHN E. ENSLEN
TO PETITION FOR WRIT OF MANDAMUS
Comes now John E. Enslen in his official capacity as
Probate Judge of Elmore County, Alabama, and files this
responsive pleading to the instant Petition for Writ of
Mandamus (hereinafter "Petition"):
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1.

The undersigned John E. Enslen (hereinafter "Judge

Enslen") is the duly elected Probate Judge of Elmore County,

Alabama, and he is one of the "John Doe" respondents
referenced in the caption and in paragraph 9 of the
Petition.
2.

Judge Enslen does not address herein the issue of

standing. He leaves said issue to the competent judgment of

the Alabama Supreme Court.
3.

Judge Enslen has thus far refused to issue same

sex marriage licenses because (1) the geographical

boundaries of his office do not lie within the federal
district court (Southern District) which issued the Searcy
ruling; (2) he was not made a party to the Searcy action;
(3) there has thus far been no ruling on the underlying
substantive merits by any higher federal court having
authority over the federal district court which issued the
Searcy ruling; (4) the Constitution of the State of Alabama
constitutes superior legal authority over a trial level
ruling by a federal district court (see cases cited in
Footnote 3, page 18, of the Petition and the cases cited
hereinafter in paragraph 7); (5) there is a split in the
federal circuits with respect to the merits of the
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underlying substantive issue; (6) the law remains in a

"status quo" condition until the United States Supreme
Court makes a ruling; (7) my actions as probate judge
should not be based on anticipation of what future rulings
may hold; and (8) making the state Attorney General a party
to a federal civil action testing a state constitutional
provision is equivalent to making the state a party to the
action and Article III, Section 2, Clause 2, of the United
States Constitution grants exclusive "original
jurisdiction" in such matters to the United States Supreme
Court.
4.

Judge Enslen verily believes that the issuance of

a marriage license is purely an administrative or

ministerial act that is totally disconnected from his
judicial or court duties, and that the clerical function of
issuing a marriage license does not require Judge Enslen to
exercise any degree of judgment or discretion called for or
established by the limited-jurisdiction statutes relating
to the judicial functions or judicial authority of a
probate judge presiding over a county probate court.
5.

Judge Enslen verily believes that the Governor of

the State of Alabama (hereinafter "Governor") as chief of

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the executive branch of state government, is the

appropriate constitutional officer who in the current
context possesses the legal duty and responsibility to
provide uniform direction to the probate judges of Alabama,
and that the Governor, if uncertain as to his correct
course of action, should expeditiously seek an advisory
opinion from the Supreme Court of Alabama.
6.

A recent detailed study of the courts of all 50

states and the District of Columbia determined that 46

states and the District of Columbia adopt the position that
the precedents of lower federal courts are not binding in
their jurisdictions. Wayne A. Logan, "A House Divided: When
State and Lower Federal Courts Disagree on Federal
Constitutional Rights," 90 Notre Dame L. Rev. 235, 280-81
(2014). The position of three other states is uncertain.
Only one state (Delaware) defers to the constitutional
decisions of lower federal courts. Id. at 281.
7.

Additional federal case law upon which Judge

Enslen relies for his position may be found in the

following federal cases: Johnson v. Williams, 133 S. Ct.
1088, 1098 (2013) (noting that "the views of the federal
courts of appeals do not bind the California Supreme Court
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when it decides a federal constitutional question");

Camreta v. Greene, 131 S. Ct. 2020, 2033 n. 7
(2011)(quoting 18 J. Moore et al., Moore's Federal Practice
134.02[1][d], p. 124-26 (3d ed. 2011))("A decision of a
federal district court judge is not binding precedent in
either a different judicial district, the same judicial
district, or even upon the same judge in a different
case."); Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993)
(Thomas, J., concurring) ("The Supremacy Clause demands
that state law yield to federal law, but neither federal
supremacy nor any other principle of federal law requires
that a state court's interpretation of federal law give way
to a (lower) federal court's interpretation. In our federal
system, a state trial court's interpretation of federal law
is no less authoritative than that of the federal court of
appeals in whose circuit the trail court is located.");
Asarco Inc. v. Kadish, 490 U.S. 605, 617 (1989)(Recognizing
that state courts "possess the authority, absent a
provision for exclusive federal jurisdiction, to render
binding judicial decisions that rest on their own
interpretations of federal law."); Steffel v. Thompson, 415
U.S. 452, 482, n. 3 (1974)(Rehnquist, J., concurring)
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(noting that a lower-federal-court decision "would not be

accorded the stare decisis effect in state court that it
would have in a subsequent proceeding within the same
federal jurisdiction."); Surrick v. Killion, 449 F. 3d 520,
535 (3rd Cir. 2006)("Although consistency between state and
federal courts is desirable in that it promotes respect for
the law and prevents litigants from forum-shopping, there
is nothing inherently offensive about two sovereigns
reaching different legal conclusions. Indeed, such results
were contemplated by our federal system, and neither
sovereign is required to, nor expected to, yield to the
other."); United States ex rel. Lawrence v. Woods, 432 F.2d
1072, 1075 (7th Cir. 1970)("In passing on federal
constitutional questions, the state courts and lower
federal courts have the same responsibility and occupy the
same position; there is a parallelism but not paramountcy
for both sets of courts are governed by the same reviewing
authority of the Supreme Court.").
8.

Wherefore the premises considered, Judge Enslen

respectfully requests that this Supreme Court of Alabama,

by any and all lawful means available to it, protect and
defend the sovereign will of the people of the State of
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Alabama as expressed in the Constitution of the State of

Alabama, as amended, so long as said state constitution
represents the highest and prevailing authoritative law
under our American system of government. At the current
time, our state constitution is the highest law of the land
as shown by the federal cases herein cited, and
particularly those cases previously issuing from the United
States Supreme Court.

Respectfully submitted,

/s/ John E. Enslen_____________________

John E. Enslen, Pro Se
Probate Judge of Elmore County, Alabama
Post Office Box 10
Wetumpka, Alabama 36092
334-399-2373
jeenslen@gmail.com

State of Alabama
Elmore County
VERIFICATION
Before me, the undersigned notary public, personally
appeared John E. Enslen, who after having been duly sworn,
stated under oath that the facts set forth in the foregoing
responsive pleading are true and correct.
Sworn to and subscribed before me this 18th day of
February, 2015.

/s/ Shirley Moseley____________

NOTARY PUBLIC
State of Alabama At Large
My commission expires 1/15/2019

CERTIFICATE OF SERVICE
I, John E. Enslen, do hereby Certify that a true and
correct copy of the foregoing has been furnished by United
States Postal Service and electronic mail on this 18th day
of February, 2015, to:
Matthew D. Staver
Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
mstaver@lc.org
Horatio G. Mihet
Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
hmihet@lc.org
Roger K. Gannam
Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
rgannam@lc.org
A. Eric Johnson
Attorney
Suite 107
1200 Corporate Drive
Birmingham, Alabama 35242
eric@aericjohnston.com
Samuel J. McLure
Attorney
The Adoption Law Firm
Post Office Box 2396
Montgomery, Alabama 36102
sam@theadoptionlawfirm.com

The Honorable Alan L. King

Judge of Probate, Jefferson County
716 North Richard Arrington Junior Boulevard
Birmingham, Alabama 35203
kinga@jccal.org
The Honorable Robert M. Martin
Judge of Probate, Chilton County
500 2nd Avenue North
Clanton, Alabama 35045
probate@chiltoncounty.org
The Honorable Tommy Ragland
Judge of Probate, Madison County
100 North Side Square, Room 101
Huntsville, Alabama 35801
phanson@co.madison.al.us
The Honorable Steven L. Reed
Judge of Probate, Montgomery County
Montgomery County Courthouse Annex I, Third Floor
100 South Lawrence Street
Montgomery, Alabama 36104
probate@mc-ala.org
David Byrne
Legal Counsel, Governor Robert Bentley
Office of Governor Robert Bentley
State Capitol
600 Dexter Avenue
Montgomery, Alabama 36130-2751
david.byrne@governor.alabama.gov
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, Alabama 36130-0152
smclure@ago.state.al.us

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Ken Webb
Attorney
7475 Halcyon Pointe Drive
Montgomery, Alabama 36117
kwebb@webbeley.com

18 Feb. 2015________________
Date

/s/ John E. Enslen__________

Signature

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