What Happens if States Refuse to Comply With Marriage Ruling?

What Happens if States Refuse to Comply With Marriage Ruling? June 30, 2015

As expected, Chief Justice Roy Moore of the Alabama Supreme Court is pledging to ignore the Supreme Court’s ruling legalizing same-sex marriage, as are many local judges and county clerks in that state and around the country. Some are just going to stop issuing all marriage licenses, others are just refusing to comply.

Alabama Chief Justice Roy Moore, who has long fought against same-sex marriage, said states can fight the ruling, as they have decisions allowing slavery or abortion, and predicted that it would spark a national backlash from Christian conservatives.

“They’ve just disregarded everything that precedent holds, and they’ve destroyed the foundation of our country which is family,” Moore said.

In rural Alabama, Pike County Probate Judge Wes Allen said he would stop issuing all marriage licenses to avoid having to give them to gay couples. Allen said Alabama law gives judges the option of granting licenses, and “I have chosen not to perform that function.”

Governors in Louisiana, Mississippi and Texas also railed against the ruling. And clerks in some of the affected states refused to issue licenses, citing a three-week grace period allowed by the Supreme Court or forms now out of date that specify “bride” and “groom.”…

In Texas, Gov. Greg Abbott issued a memo saying the government should not pressure people to violate their “sincerely held religious beliefs.” He later clarified that he does not condone discrimination or authorize state agencies to deny benefits to same-sex couples.

Jindal also issued a statement vowing to never stop fighting for “religious liberty.”

“Marriage between a man and a woman was established by God, and no earthly court can alter that,” he wrote.

The Supreme Court allows for a 25-day delay while it considers a rehearing. The Louisiana Clerks Association advised clerks to wait until then before issuing licenses.

So what happens if a state or local officials just flat out refuse to issue licenses to gay couples? What if the Supreme Court of Alabama issues another order to county probate judges not to comply with the ruling, which would not be at all surprising? I doubt it would be as dramatic as the days of George Wallace, when federal marshals had to escort black children to school because state and local officials were literally blocking the door. But here’s what could happen if state or local officials decide to be really defiant.

First, the district courts that heard the original cases in each state will now issue a final order/injunction to enforce the Supreme Court’s edict in the case. If those within that court’s jurisdiction were to defy that order, the district court could find them to be in contempt and start assessing fines or even having them arrested. That would be a rather extraordinary thing to happen, but it’s one way they might deal with it at some point.

Before that happens, however, there are other non-judicial things that could happen. The governor of the state might issue an executive order requiring compliance, which would then start a battle between the executive and judicial branches at the state level. Or President Obama could even issue an executive order requiring federal personnel to take over the administration of local county clerk’s offices until such time as the officials agree to comply with the law. Again, that would be a truly extraordinary step.

All of this hinges on the question of just how defiant state and local officials decide to be. The only state where I really expect this to happen, at least statewide, is Alabama. Roy Moore not only thinks he’s doing God’s will, he thinks he is God, and I would not be at all surprised if he were to issue an order telling county clerks and probate judges not to comply. That would put those people in one hell of a bind, to say the least. Get the popcorn ready.


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