Update on the Situation in Alabama

Update on the Situation in Alabama February 16, 2015

The marriage situation in Alabama continues to be very fluid, so here’s the latest as of Friday. After the federal judge in the case that struck down that state’s ban on same-sex marriage ordered one county probate judge to issue same-sex marriage licenses, many other counties began to follow suit even though this did not technically apply to them.

Almost two-thirds of the state’s probate courts are now issuing marriage licenses to all couples, gay and straight.

That’s a big change from Monday, when fewer than 10 counties were issuing marriage licenses to same-sex couples. But a ruling yesterday by U.S. District Court Callie V. Granade nudged many probate judges sitting on the fence to accept an earlier ruling overturning the state’s ban on same-sex marriage.

Granade ruled yesterday that Mobile County Probate Judge Don Davis had to issue marriage licenses to gay couples who had been waiting in the office since Monday. Like many probate judges around the state, Davis had elected to close marriage offices in the wake of conflicting rulings from Judge Granade and Alabama Supreme Court Chief Justice Roy Moore. On Sunday night, Moore instructed probate judges not to follow Granade’s January order to issue marriage licenses to same-sex couples.

Only 26 of the state’s 67 counties were either not issuing licenses this morning or refusing comment. In Shelby County and five other counties, officials will only issue marriage licenses to couples of the opposite sex. In many of the counties that are still holding out, probate judges said they would probably reopen offices early next week, and begin selling licenses to same-sex couples.

There are already suits and motions being filed in the holdout counties to force them to comply with the federal court order. But the bigots are not giving up. Liberty Counsel has asked the Alabama Supreme Court to take up the case and they have agreed to do so, telling the parties to file briefs this week.

The Alabama Supreme Court late Friday agreed to consider a petition by two groups seeking a halt to the issuance of same-sex marriage licenses by state probate judges.

Meanwhile another group, which supports same-sex unions, also asked justices Friday to toss out the petition. And one Alabama Supreme Court justice wrote he believes an order halting the issuance of licenses could inject more confusion and, possibly, subject more probate judge to federal lawsuits.

In a 6-2 decision issued late Friday, the Alabama Supreme Court set up a schedule next week for the different sides to file their answers and briefs on the request by the Alabama Policy Institute and Alabama Citizens Action Program. The court, however, did not say whether it would hold a hearing for oral arguments before responding to the petition.

The order stated the briefs by probate judges should address issues raised by the petition, including whether the state Supreme Court even has jurisdiction to hear the petition.

Answers and briefs by probate judges are to be filed by 5 p.m. Feb. 18 and then ALCAP and API will have a chance to respond by 5 p.m. Feb. 20.

The key question here is whether the state high court will officially attempt to overrule a federal court on the matter (Roy Moore’s letter telling probate judges they could ignore the federal court was not an actual ruling from the court). Time will tell.

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