The Alabama Supreme Court on Tuesday night ordered probate judges around the state to stop issuing marriage licenses to same-sex couples, ruling indirect opposition to a federal judge that the state’s ban on same-sex marriage did not violate the U.S. Constitution.
In a 7-1 decision, the court ruled that “Alabama law allows for‘marriage’ between only one man and one woman,” and that the state’sprobate judges “have a ministerial duty not to issue any marriage licensecontrary to this law.”
While the court found that the state’s probate judges were not legally bound by the multiple rulings by a U.S. District Court judge, Callie V.S. Granade, in favor of same-sex marriage, it also delivered a long andforceful refutation of her decision and the findings of federal judgesacross the country on same-sex marriage. “Government has an obvious interest in offspring and the consequencesthat flow from the creation of each new generation, which is only naturallypossible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by state law,” the courtruled.
The ruling, on a petition brought by two conservative groups and joined by a county probate judge, is only the latest round in a battle over jurisdiction on the question of same-sex marriage in Alabama. The fight is likely to be decided by the U.S. Supreme Court.
This skirmish has gone on since Granade ruled in January that the state’s ban on same-sex marriage, which 81 percent of voters approved in a 2006 referendum, was unconstitutional.
The night before her ruling was to go into effect, the chief justice of the state Supreme Court, Roy S. Moore, who abstained from voting in Tuesday’s decision, issued an administrative order insisting that the state’s 68 probate judges refrain from issuing the licenses. He based his reasoning in part on the fact that probate judges were not defendants in the case before Granade.
With competing orders— one from Granade, which the U.S. Supreme Court allowed to go into effect, and another by Moore— Alabama was a checkerboard of options for gay couples. Some judges, including those in Birmingham and Huntsville, granted licenses, while others refused, resulting in scenes of triumph, disappointment, joy and confusion.
On Feb. 12, Granade ruled that the probate judge for Mobile County couldnot continue to refuse to issue marriage licenses to same-sex couples. The decision was, it seemed, another victory for gay-rights advocates, whose lawyers saw it as a clear instruction to other holdout judges that they needed to begin issuing licenses. Many probate judges read it that way as well.
The Human Rights Campaign, a Washington, D.C.-based gay-rights group, said that, before Tuesday’s ruling, at least 48 of Alabama’s 67 counties were issuing licenses to all couples.
Meanwhile, the two conservative groups, the Alabama Policy Institute and the Alabama Citizens Action Program, had asked the Alabama Supreme Court to tell the probate judges to stop issuing marriage licenses to gay couples.
Eric Johnston, a lawyer for the Alabama Policy Institute and the Alabama Citizens Action Program, said he expected the state court’s ruling to put an end to same-sex marriages “until the U.S. Supreme Court addresses it, finally, in June of this year.”
“We don’t need mass confusion with judges in Alabama,” he said.
Elmore County Probate Judge John E. Enslen, who had joined the petition and has refused to issue licenses to gay couples, agreed.
“It makes me wonder why some states caved so quickly to lower federal court rulings in the absence of a ruling from the United States Supreme Court,” he wrote in an email.
In the decision, the justices insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that. They took on not just Granade’s ruling point by point but also took issue with the U.S. Supreme Court’s ruling striking down parts of the federal Defense of Marriage Act in 2013. The justices said that marriage was a state matter but also made a more sweeping case, maintaining that only marriage between a man and a woman “provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.”
Justice James Gregory Shaw was the dissenter, questioning the ruling on several procedural grounds and concluding that the court was venturing into uncharted waters “and potentially unsettling established principles of law.”
Ronald Krotoszynski, a constitutional law professor at the University of Alabama, found the court’s ruling shocking.
“You might read it as kind of a brief or a political document to the Supreme Court of the United States,” he said. “They’re trying to lobby.”
Krotoszynski said that some of Alabama’s probate judges could choose to appeal the Supreme Court’s ruling to the U.S. Supreme Court on an emergency basis.
A section of Tuesday’s ruling said that probate judges could file papers within five days to argue they should not be bound by the state justices’ decision.
In a statement, the Human Rights Campaign called the decision “bizarre.”
“The Alabama State Supreme Court does not have the authority to interfere with a federal court order,” said Sarah Warbelow, the group’s legal director. “This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling.”
Probate Judge Rick Allison of Walker County, who has not issued licenses to any couple in recent weeks, said that he had not reviewed the ruling but that it could lead to changes in his office.
Allison said it was difficult for county-level judges to interpret all the competing rulings.
“We don’t have a lot of leeway,” he said. “When you have somebody saying it’s this and another saying it’s this, you really don’t know what to do.”