Same-Sex Marriage Banned in Alabama

With the scourge of same-sex marriage ravaging the United States, the fight against it took a new turn as Alabama Chief justice bans same-sex marriage in Alabama. 

In what seems a stand-off, Chief Justice Roy Moore issued an order declaring that a ruling issued last March by the Alabama Supreme Court remains in effect and that probate judges "have a ministerial duty not to issue any marriage license contrary" to Alabama's law and constitutional amendment banning same-sex marriage.

In a four-page administrative order, Moore was very assertive and said the conflict between the state court ruling and the U.S. Supreme Court ruling in June has caused "confusion and uncertainty" among probate judges.

Moore issued the order today in his capacity as administrative head of the state court system. He cited a state law that says the chief justice is empowered to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state."

Moore wrote that since the U.S. Supreme Court ruling that many Alabama probate judges are issuing marriage licenses to same-sex couples, while others are issuing licenses only to opposite-sex couples or not issuing licenses at all.

"This disparity affects the administration of justice in this state," he wrote.

Rep. Patricia Todd, D-Birmingham, state director of the Human Rights Campaign, which advocates for civil rights for gays, lesbians and transgender people, said Moore is the one who has caused confusion for probate judges.

She said the issue is settled by the U.S. Supreme Court and Moore doesn't get to "pick and choose" which Supreme Court rulings to adhere to.

"The reality is he's wrong," Todd said. "Let's get on and deal with the real issues facing Alabama."

The HRC's national organization issued a statement.

"Yet again, Chief Justice Roy Moore is flagrantly defying the rule of law, and empowering those who wish to stand between same-sex couples and their constitutional right to marry the person they love," HRC Legal Director Sarah Warbelow said. "Regardless of what Roy Moore says, marriage equality is the law of the land. His obstructionist tactics tarnish the reputation of the great state of Alabama, and we urge all of the state's probate judges to issue licenses to same-sex couples, as is their duty under the law."

U.S. District Judge Ginny Granade of Mobile ruled last January that Alabama's ban on same-sex marriage violated the U.S. Constitution.

That touched off a wave of confusion and conflicting legal orders, as some Alabama probate judges began issuing same-sex marriage licenses, while others did not.

The Alabama Supreme Court issued its order in March in response to a request from two conservative groups, the Alabama Citizens Action Program and the Alabama Policy Institute, as well as Elmore County Probate Judge John Enslen.

 

The order enjoined probate judges from issuing licenses contrary to Alabama law.

Moore was not listed as participating in that order. Seven of the eight other justices concurred in the result.

About four months later, the U.S. Supreme Court issued its long-anticipated order, striking down state bans on same-sex marriage.

In that case, Obergefell vs. Hodges, the U.S. Supreme Court ruled that the 14th Amendment requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other states.

The justices, in a 5-4 decision, overturned a Sixth District ruling that had upheld same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee.

Moore, in his order today, says the Alabama Supreme Court continues to deliberate on how the U.S. Supreme Court ruling affects the state court's orders from March.

Moore said rulings by federal courts since the U.S. Supreme Court ruling could affect the issue in Alabama.

Moore said the Eighth Circuit Court of Appeals has ruled that the U.S. Supreme Court case invalidated only the same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee.

And he said the U.S. District Court in Kansas found that although the U.S. Supreme Court ruling "is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses."

In addition to the response from Todd and the Human Rights Campaign, Moore's order today drew forceful criticism from others.

Montgomery County Probate Judge Steven Reed said on Twitter that Moore's "latest charade is just sad & pathetic. My office will ignore him & this."

Scott McCoy, senior staff attorney for the Southern Poverty Law Center, issued a statement calling Moore's order a "dead letter."

"In no way does his administrative order supersede Judge Granade's federal injunction prohibiting probate judges from enforcing discriminatory Alabama marriage laws.

"If probate judges violate the injunction, they can be held in contempt. This is Moore yet again confusing his role as chief justice with his personal anti-LGBT agenda."

Americans United for Separation of Church and State called Moore's order a "pathetic gesture that is doomed to fail."

"I have a news flash for Roy Moore: The U.S. Supreme Court upheld marriage equality in June and the decision extends nationwide," said the Rev. Barry W. Lynn, executive director of Americans United. "All Alabama probate judges remain bound by a federal court order to issue marriage licenses to same-sex couples."

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