Alabama’s probate judges should not issue marriage licenses to same-sex couples, the chief justice of the Alabama Supreme Court said in an order issued Wednesday.
Alabama’s Marriage Protection Act, which bars such unions, remains “in full force and effect” despite a U.S. Supreme Court decision in June that struck down similar laws banning same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, Chief Justice Roy Moore said.
“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,” Moore wrote in his order.
He contends that Alabama is faced with conflicting rulings between an earlier decision of Alabama’s Supreme Court and the Supreme Court’s decision in Obergefell v. Hodges. Until the Alabama high court acts to resolve the conflict, its earlier decision stands, Moore wrote.
The Alabama chief justice’s order brought condemnation from groups supporting lesbian, gay, bisexual and transgender rights. In a statement, Senior Staff Attorney Scott McCoy of the Southern Poverty Law Center said the order was “a dead letter.”
“In no way does his administrative order supersede Judge (Ginny) Granade’s federal injunction prohibiting probate judges from enforcing discriminatory Alabama marriage laws,” McCoy said. “This is Moore yet again confusing his role as chief justice with his personal anti-LGBT agenda,” McCoy said.
State Rep. Patricia Todd, a Birmingham Democrat, director of the Alabama chapter of the Human Rights Campaign and the only openly gay member of the state Legislature, said probate judges who attempt to follow Moore’s order could be in legal jeopardy.
“If they defy a Supreme Court decision, they will be found in contempt of a federal court order,” she said. “If he wants to waste the taxpayers’ money, go ahead, but we’re not going backwards.”
It was not immediately known whether any probate judges, whose offices are responsible for marriage licenses in Alabama, decided to stop issuing them to same-sex couples. In early September after the Obergefell decision in June, as many as 14 of the state’ 67 counties weren’t issuing marriage licenses to any couples, according to the Campaign for Southern Equality.
Unlike Kentucky, where Rowan County Clerk Kim Davis defied the U.S. Supreme Court ruling to refuse to issue marriage licenses to same-sex couples, Alabama has a clause in it’s state constitution that says probate judges “may” issue marriage licenses. So probate judges who object to gay marriage simple shuttered their marriage bureaus.
“I respect our chief justice greatly,” Nick Williams, probate judge in Washington County who stopped issuing all marriage certificates in June, told The Associated Press. “I think he’s a man of honor, and I respect everything he does.”
Moore first made national news in 2003 during his first term on the Alabama Supreme Court when he refused to remove a monument featuring the Ten Commandments from the Alabama Judicial Building despite an order from a federal judge. He was removed from office later that year but re-elected in 2012.
He attempted to stop the issuance of marriage licenses to same-sex couples before Granade’s ruling went into effect in February. Shortly after, the Alabama Policy Institute and the Alabama Citizens Action Project, both conservative groups, sued to block Granade’s ruling in state court.
The Alabama Supreme Court then issued an order in March halting the issuance of licenses, saying it had the same right to interpret the U.S. Constitution as a federal district court.
“We certainly will continue to pray the right decision will be made and religious freedom will be maintained in this nation,” Joe Godfrey, the action project’s director, said Wednesday.