- The Alabama Supreme Court on Tuesday ordered the state's probate judges to stop granting marriage licenses to gay and lesbian couples, defying a federal judge's ruling that the state's ban on same-sex marriages is unconstitutional.
- It's unclear whether probate judges will comply with the Alabama Supreme Court's order, given that it's very likely to fall against future challenges in federal court.
- LGBT advocates criticized the court's actions, calling it "a massive injustice to the people of Alabama."
- Same-sex marriages began in Alabama on February 9 after the 11th Circuit Court of Appeals and US Supreme Court refused to delay a federal court decision that struck down the state's ban, making Alabama the 37th state where gay and lesbian couples can legally wed.
Alabama's top court keeps trying to block federal rulings
The Alabama Supreme Court's order on Tuesday is just the latest attempt by the top court to prevent same-sex marriages in the state. On February 8, Alabama Chief Justice Roy Moore, who recused himself from the court's action on Tuesday, directly ordered probate judges to not grant same-sex marriage licenses. In response, a federal judge intervened and forced a probate judge in Mobile County to wed gay and lesbian couples.
Despite the state supreme court's interference, Alabama's marriage battle is mostly taking place in federal courts. A lesbian couple sued Alabama Attorney General Luther Strange to force the state to recognize and grant same-sex marriage licenses. US District Court Judge Callie Granade on January 23 struck down the state's same-sex marriage ban, eventually putting the decision on hold until February 9 and clarifying that it should apply to all state officials. Then, the 11th Circuit Court of Appeals and Supreme Court refused to extend the hold beyond February 9.
But Moore and the Alabama Supreme Court's actions have cast confusion over whether probate judges should continue granting marriage licenses to gay and lesbian couples in the state, although the court's order doesn't nullify existing marriages.
In a February 3 letter to probate judges, Moore argued it was his duty as chief justice to correct "any condition or situation adversely affecting the administration of justice within this state." He wrote that preventing state courts from enforcing their own interpretations of the US Constitution "is a violation of state sovereignty," and state judges should be allowed to ignore a lower federal court's order.
Moore is also opposed to same-sex marriages in general. Asked whether he's on the wrong side of history by ABC News, Moore responded, "Absolutely not. Do they stop with one man and one man, or one woman and one woman? Or do they go to multiple marriages? Or do they go to marriages between men and their daughters, or women and their sons?"
This isn't the first time the outspoken conservative and his court have attempted to ignore federal rulings. In 2003, Moore was removed from the bench when he defied a federal judge's order to move a Ten Commandments monument from the Alabama Supreme Court building. But in 2012, the state re-elected him to the Alabama Supreme Court position.
LGBT advocates criticized the court's order
Supporters of LGBT rights have criticized Moore and the Alabama Supreme Court's attempts to halt same-sex marriages, arguing Moore and the court had no authority in separate instances to tell probate judges to enforce a law that a federal court had deemed unconstitutional.
"The Alabama Supreme Court has done a disservice to itself, not to mention a massive injustice to the people of Alabama, in allowing itself to be used to temporarily obstruct the freedom to marry and the enforcement of the constitutions guarantees," Freedom to Marry President Evan Wolfson said in a statement. "This flouting of the Constitution and travesty of justice will not stand."
Howard Wasserman, a law professor at Florida International University, argued that jurisdictional issues in Alabama complicate the state's marriage cases. Wasserman said the federal court's original decision in favor of marriage equality applied only to Attorney General Strange, the defendant in the marriage case, and the executive officials he oversees — not probate judges, who are part of the judicial branch and issue the state's marriage licenses.
This hasn't been a prominent issue in other states, Wasserman explained in a phone interview, because other states' cases typically forced county clerks, who do fall under the jurisdiction of attorneys general and other executive officials, to issue marriage licenses, not probate judges.
Wasserman suggested the likely course of action, given the jurisdictional complications, is a same-sex couple will sue a probate judge and win the case in federal court, potentially leading other judges to "take the hint" about where the issue is going. "Obviously, this is not the most efficient way of doing things," Wasserman wrote in a blog post.
Several probate courts seem to agree with LGBT advocates: Montgomery, Madison, and Jefferson counties began issuing same-sex marriage licenses the first day they could.
But probate courts in several counties have held out, refusing to issue same-sex marriage licenses or even marriage licenses altogether. A federal judge on February 12 sided against these courts, ruling that a Mobile County probate judge must grant marriage licenses to gay and lesbian couples.
In response to the controversy and confusion, the American Civil Liberties Union set up a hotline to allow couples to report problems they have obtaining marriage licenses.
This isn't Alabama's first run-in with courts on civil rights
Alabama has a history of trying to fight courts' civil rights rulings.
In the 1960s, Alabama Gov. George Wallace, a Democrat at the time, infamously attempted to stop the desegregation of public schools after the Supreme Court's ruling in Brown v. Board of Education, which deemed state laws establishing separate public schools for white and black students unconstitutional. This fight was part of a political promise for Wallace, who said at his inauguration, "Segregation now, segregation tomorrow, segregation forever."
In response to Wallace, President John F. Kennedy federalized National Guard troops and sent them to the University of Alabama to enforce the Supreme Court's ruling. Wallace eventually backed down, allowing black students to enroll in the school.
Joseph Smith, a judicial politics expert at the University of Alabama, told the New York Times that Alabama Chief Justice Moore's stance today is very similar to Wallace's back in the 1960s: "It's a very similar strain of ideology: the state's rights, resisting the national tide, resisting liberal movements in policy."
Moore has some legal justifications on his side — mainly the specifics of how jurisdiction over marriage works in Alabama. But those are largely procedural technicalities. The main criticism of Moore's actions — and why they draw a comparison to Wallace's defiance in the 1960s — is that the federal court was quite clear in its decision: Alabama's same-sex marriage ban is unconstitutional. Trying to defend the state's marriage laws in that context looks obstructive and unjustifiable, even if it's legally defensible in a small way.