The Alabama Supreme Court, by an 8-1 vote, ratified the nullificationist position held by Chief Justice Roy Moore and ordered county judges in that state to stop issuing same-sex marriage licenses. That can only create more chaos in the state on many levels on this issue.
Weeks after a United States District Court judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the order said. “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”…
The court seemed to chide Alabama Attorney General Luther Strange for not taking a more active role in enforcing state law.
“In the wake of the federal district court’s orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may have been altered by the federal district court’s decision,” the court wrote.
The order gives probate judges five days to submit responses if they want to show cause why they should be able to grant marriage licenses to same-sex couples.
The order also gives Mobile County Probate Judge Don Davis until Thursday to argue why he should not be bound by the order. Davis has asked the court to dismiss him from the lawsuit because he had been ordered by the federal district court to issue licenses to same-sex couples.
There’s some odd procedural questions here. The federal court that declared the state law to be unconstitutional has only actually ordered one single judge, Davis, to issue same-sex marriage licenses. But most counties in the states have been issuing them, after some initial reluctance, after the appeals court and the Supreme Court refused to issue a stay of the original ruling.
What this does is put county probate judges in the state in a position of having to choose which court to obey. It also sets up a bunch of legal wrangling over the next few months. I’m sure a petition will be filed with the federal district court asking, in essence, “Okay, what now?” Whatever that decision is, it will be appealed. And by the time all that is done, the Supreme Court will rule on the case before them now and settle the matter once and for all.
The Alabama Supreme Court has a tiny legal thread to hold on to now because the federal court has not directly ordered any county other than Mobile county to issue the licenses, but once the Supreme Court rules they’ll have nothing but pure nullification and interposition to rely on. And that has never worked before. If the Alabama Supreme Court continues to defy the ruling then, there’s going to be a major showdown. Full ruling here.