On Sunday night, Alabama Chief Justice Roy Moore issued a memo saying county judges can ignore a federal court ruling allowing gay couples to marry, but he can’t enforce that order. Who can? The governor, who says he won’t. But on Monday morning, the U.S. Supreme Court rejected a stay of the ruling. So now there’s a big mess as county judges have to choose between following the state courts or the federal courts.
Probate judges in various counties have indicated that they will in some way circumvent same-sex marriage licenses. For example, Marengo County Probate Judge Laurie Hall has said that her office will still make marriage licenses available, but she will no longer sign them for any couple. Pike County Probate Judge Wes Allen has similarly taken his office “out of the marriage licensing business altogether,” citing state law that indicates that judges “may” issue marriage licenses — but don’t have to. Clarke County Probate Judge Valerie Davis has taken the same step, while judges in Covington County and Washington County will continue to discriminate against same-sex couples per the unconstitutional state law.
If any judges were on the fence about whether to issue licenses, they may find a reason not to in the “administrative order” issued by Alabama Chief Justice Roy Moore last night. Moore, who has a history of bucking federal court orders, simply declared that probate judges do not have to abide the federal order.
This may not, however, be the best legal advice. Though the Alabama Probate Judges Association originally found reason to avoid issuing marriage licenses to same-sex couples, two follow-up orders from Granade changed the scope of her original ruling. In a separate case about a couple seeking to marry in-state as opposed to just having their out-of-state marriage recognized, she issued an injunction that bound any state officer tasked with enforcing the state’s ban. She also issued a clarification of her original ruling and, borrowing a strategyfrom District Judge Robert Hinkle in Florida, pointed out that even if her injunction does not require probate judges to issue licenses, the Constitution does. Thus, any probate judge who continues to violate a same-sex couple’s constitutional rights could be held legally liable with a new complaint. This would not be the first time that Alabama probate judges have ignored a federal ruling about who they should issue licenses to. The ACLU has set up a hotlinethat same-sex couples can call if they are refused a license, while the anti-LGBT Liberty Counsel has already announced it will defend probate judges in such cases.
What a mess. And all for the purpose of denying equality to gay couples. Just like every past civil rights struggles, the enemies of equality and fairness will do anything they can to deny equal rights to those they despise.