Alabama Supreme Court Chief Justice Roy Moore issued an order today ordering probate judges not to issue marriage licenses to same-sex couples.
“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 reads.
The Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act both state that marriage should be between one man and one woman.
U.S. District Judge Callie V.S. Granade said Alabama's laws prohibiting same-sex marriage were unconstitutional in January 2015, approximately six months before the Supreme Court's ruling. Moore issued a similar order prohibiting probate judges from issuing licenses to same-sex couples shortly after.
According to the order, the lack of uniformity across the state has created confusion and “affected the administration of justice.”
“Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell [v. Hodges]; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses,” the order reads.
Obergefell v. Hodges is the U.S. Supreme Court decision to legalize same-sex marriage in all 50 states, and declared marriage laws in Michigan, Kentucky, Ohio and Tennessee unconstitutional.
Moore said in the order he could not tell probate judges how the Supreme Court's ruling interacts with Alabama law because that is still being debated in the Alabama Supreme Court.
He also said in the order that the Supreme Court's decision only applies to the states involved in the case, citing a decision from the United States Court of Appeals for the Eighth Circuit that states that the Supreme Court’s decision did not invalidate marriage laws of states in its jurisdiction.
Lee County Probate Judge Bill English said he called lawyers with the County Liability Fund once he saw the order. He said the order conflicts with previous orders preventing probate judges from enforcing Alabama's laws prohibiting same-sex marriage from Granade, a judge for the United States District Court for the Southern District of Alabama. He said he hopes to have guidance on what to do tomorrow and will not do anything differently until then.
"With two conflicting orders, I have to either violate one or the other," English said.
English is involved in two pending court cases, one case with the state court system, and one where he is part of the defendant class in a class action case in the federal court in Mobile. All probate judges are part of that defendant class.
English said Granade has the power to find anyone who violates her order in contempt of court, however he disagrees that he's subject to Granade's ruling because Lee County is in the Middle District, not the Southern District of Alabama where Granade is a judge.
"(Granade) made a decision that all of the state is in her case," English said. "Whether or not that is valid is another legal issue."
Do you like this story? The Plainsman doesn't accept money from tuition or student fees, and we don't charge a subscription fee. But you can donate to support The Plainsman.
