Despite a ruling from the United States Supreme Court overturning bans on same-sex marriages, the windows at the marriage license counter are closed to all couples in Mobile County following an unexpected order from Alabama Chief Justice Roy Moore on Wednesday.
Known nationally for being outspoken on the issue, Moore’s order claims the SCOTUS ruling in Obergefell v. Hodges on June 29, 2015 created a conflict between the high court’s precedent and an Alabama Supreme Court order last March.That order temporarily halted the issuance of same-sex marriage licenses across the state, and in it, the state court wrote that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Sanctity of Marriage Amendment or the Marriage Protection Act.”
Those two laws that formerly prevented Alabama from performing or recognizing same-sex marriages until they were struck down in January of 2015 in a ruling from U.S. District Judge Ginny Granade.
Supporters of same-sex marriages, including the Southern Poverty Law Center, are saying federal law supersedes any order on the state level, but Moore claims the disparity in the opinions is creating confusion for Alabama’s probate judges.
“Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses,” the order states. “This disparity affects the administration of justice in this state.”
Going further, Moore’s order cites a previous case from the U. S. Court’s Eighth Circuit in Kansas that suggests the landmark ruling in Obergefell v. Hodges set a “supreme court precedent,” but didn’t specifically strike down the individual laws banning same-sex marriages in each state.
In the order, Moore writes that those “cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court.” As such, Moore claims the Alabama Supreme Court’s order from last March should be the law of the land.
“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,” the order concludes.
After news of Moore’s order broke, the SPLC released a statement calling it effectively a “dead letter.”
“In no way does his administrative order supersede Judge Granade’s federal injunction prohibiting probate judges from enforcing discriminatory Alabama marriage laws,” wrote Senior Staff Attorney Scott McCoy. “If probate judges violate the injunction, they can be held in contempt. This is More yet again confusing his role as chief justice with his personal anti-LGBT agenda.”
Though there is no language in the order suggesting courts stop issuing marriage licenses to heterosexual couples, the probate court in Mobile County has chosen to do so. As of noon on Jan. 6, the marriage license windows at the courthouse were shut and bore a printed copy of Moore’s order.
A note said, “This action is necessary to ensure full compliance with all court rulings that apply to the court and to Mobile County Judge of Probate Don Davis. We regret any inconvenience encountered.”
Davis couldn’t be reached for comment on Wednesday, and his Chief of Staff Mark Erwin also told reporters there would be “no comment” other than what was contained in the written statement — a copy of which is available on the court’s website.
UPDATE: On Wednesday evening Baldwin County Probate Judge Tim Russell confirmed his office will continue to issue same-sex marriage licenses at the probate office in Bay Minette.
“We are under Federal Court Orders to continue to issue all marriage licenses,” Russell said.
UPDATE: By Thursday, national media outlets across the country had picked up the story and even presidential candidates were weighing in on Moore’s order.
U.S. Attorneys Joyce White Vance, of the Alabama’s Northern District, and Kenyen Brown, of the Southern District, also released a joint statement expressing concern over what they view as Moore defying federal law.
“We have grave concerns about this order, which directs Alabama probate judges to disobey the ruling of the Supreme Court,” the statement reads. “Government officials are free to disagree with the law, but not to disobey it. This issue has been decided by the highest court in the land and Alabama must follow that law.”
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