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Religious Tolerance logo

Recognition of same-sex marriage (SSM) & LGBT equality

Part 13: Alabama: 2015-08/09
Full marriage equality may arrive in AL
on FEB-09, but only in some counties.
Chief Justice Moore issues a surprise order
for probate judges to ignore federal courts.

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In this web site, the acronym "SSM" refers to same-sex marriage. Also, "LGBT"
refers to the Lesbian, Gay, Bisexual and Transgender/Transsexual community

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This topic is continued from the previous essay.

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image of two bridesSunday, 2015-FEB-08: Chief Justice Moore orders state to ignore federal court rulings. A constitutional crisis is launched:

On Sunday evening, it was only a few hours before the federal District Court's stay was to expire automatically. Many loving, committed same-sex couples were excited. They anticipated going to the local courthouse on Monday morning to pick up their marriage licenses and perhaps to marry later that day. An unexpected event happened. Chief Justice Roy S. Moore, head of the Alabama Supreme Court, issued an order stating that local probate judges must ignore the District Court's order to start issuing marriage licenses starting Monday morning.

He stated:

"Effective immediately, no probate judge of the State of Alabama nor any \agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975."

Article 1 of the state Constitution refers to the 2006 state constitutional amendment that banned marriage by same-sex couples. § 30 of the Alabama Code refers to the state's 1998 marriage law that also bans such marriages. Both were declared unconstitutional and void by U.S. District Judge Ginny Granade in her two rulings on JAN-23 and JAN-26. The former involves a lesbian couple, married in California, seeking to have their marriage recognized in Alabama. The latter involves an unmarried gay couple who seeks permission to marry in Alabama.

In his order, Moore notes that the U.S. Supreme Court is not scheduled to issue its ruling until late June in a consolidated same-sex marriage case from Kentucky, Michigan, Ohio, and Tennessee. Many commentators believe that this ruling will settle the SSM debate and conflict everywhere in the U.S. The court may rule that same-sex marriages are legal everywhere in the U.S., or nowhere in the U.S.. Perhaps the court will take an intermediate position.

The state's requested in late January that the federal District Court's extend its stay beyond FEB-09. That was refused. The state appealed to the 11th U.S. Circuit Court of Appeals, asking again that the stay be extended. That court also refused the state's request. Finally, it was appealed to the U.S. Supreme Court, which haf not responded by the evening of FEB-08.

Chief Justice Moore argues that if Alabama starts to issue marriage licenses to same-sex couples now, then the state's case against marriage equality will be "mooted" -- made meaningless. 8 He also said that the new marriage license application forms issued by the state were in:

"... contradiction to the public statements of Governor Bentley to uphold the Alabama Constitution." 9

This is a new development in the history of same-sex marriage in the United States. Since the Windsor v. United States ruling by the U.S. Supreme Court in mid-2013 that gutted the federal Defense of Marriage Act, a series of over 40 rulings by U.S. District Courts had been either followed by states or appealed. This is believed to be the first case where such a ruling was simply ignored. But then, Alabama is the first deep South state where federal courts have ruled on same-sex marriage.

The U.S. Supreme Court had a very narrow time interval in which to clear up this conflict before offices that issue marriage licenses open on Monday, FEB-09. Alabama is in the Central Time zone, whereas the U.S. Supreme Court is in the Eastern Time zone. The court could issue a one-sentence decision rejecting Alabama's request to extend the District Court's stay until the middle of 2015, perhaps before Alabama court houses open for business on Monday.

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2015-FEB-08/09: Reactions to Chief Justice Moore's order:

  • Sarah Warbelow is the Legal Director of the Human Rights Campaign -- a national pro-marriage equality group. She issued a rather tough statement which referred to Moore's order as a:
    "... pathetic last-ditch attempt at judicial fiat by an Alabama Supreme Court justice--a man who should respect the rule of law rather than advance his personal beliefs. Absent further action by the U.S. Supreme Court, the federal ruling striking down Alabama's marriage ban ought to be fully enforced. ... Couples that have been waiting decades to access equal marriage under the law should not have to wait a single day longer. All probate judges should issue licenses tomorrow morning, and Chief Justice Roy Moore ought to be sanctioned." 10

  • Richard Cohen, President of the Southern Poverty Law Center (SPLC) -- an anti-hate/pro-equality group, -- said:

    "... The Court of Appeals and, so far, the Supreme Court of the United States has seen fit not to continue the stay. But, instead of respecting these rulings, the Chief Justice has decided to create a crisis in our state by telling the probate judges to ignore the ruling of the district court and threatening them with unspecified gubernatorial action. It's outrageous. We urge the probate judges to follow the Constitution of the United States and issue marriage licenses when their offices open in the morning." 10

  • Tori Sisson, a field organizer for the Human Rights Campaign, and her fiance, Shante Wolfe, camped out in a tent in front of the Montgomery County Probate Office door on Sunday evening in order to be the first couple to apply for a marriage license in Montgomery. Sisson said that Moore's letter:

"doesn't change our plans. ... It's really disheartening that he's taking so much energy to make all these statements, when no one fought this hard when he got married. 9

  • Jefferson County Probate Judge Alan King said:

    "My inclination at this point is to follow Judge Granade's order. But a final decision will be made before 8 a.m. ... I only found out Justice Moore had issued his order a little before 10 p.m [on Sunday]. At first glance, my legal analysis is do we in Jefferson County follow a valid federal court order or do we follow an order by one member, albeit the chief justice, of the Alabama Supreme Court?"

  • David Kennedy, an attorney for plaintiffs Cari Searcy and Kim McKeand, referred to Moore's order as a:

    "George Wallace move."

    This is a reference to Alabama's former governor George Wallace (D) who, on 1963-JUN-11, stood in the University of Alabama schoolhouse door in an attempt to prevent two black students from registering.

Kennedy continued:

"I think it's absolutely stunning that our state's highest jurists would just advocate for ignoring a federal court order. Judge Granade's order is law of the land. It's not up for debate. It's alarming."

Beyond the confrontation with the federal judiciary, Kennedy said he does not believe the chief justice of the state Supreme Court has the authority under state law to issue such orders to probate court judges. He said:

"That's not how our judicial system works." 10

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  • Randall Marshall, of the American Civil Liberties Union of Alabama referred to the order as:

    "a last minute gasp. ... I am not aware of anything that gives him the authority to tell probate judges what to do ... If he had that authority he would have claimed it much earlier than now."

  • Webmaster's opinion (bias alert):

    With this action, Chief Justice Moore has almost certainly guaranteed that he will be quickly removed from office.

    With public opinion in Alabama running about 70% opposed to marriage equality, he is almost certain to be considered a heroic figure by many Alabamians and to be re-elected to the same office in the future.

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
  1. "Supreme Court won't intervene in Alabama same-sex marriage case," Daily KOS, 2015-FEB-06, at: http://www.dailykos.com/
  2. Emma Margolin, "Alabama heading for ‘constitutional crisis’ over marriage equality," MSNBC, 2015-FEB-06, at: http://www.msnbc.com/
  3. Kim Chandler, "Alabama Set to Become 37th State to Allow Gay Marriage," ABC News, 2015-FEB-07, at: http://abcnews.go.com/
  4. David Badash, "Crusading Alabama Judge Takes Entire County 'Out Of Marriage Licensing Business Altogether," The New Civil Rights Movement, 2015-FEB-06, at: http://www.thenewcivilrightsmovement.com/
  5. "4 Alabama judges refuse to perform same-sex weddings citing religious beliefs," Alabama Media Group, 2015-FEB-06, at: http://www.al.com/
  6. "List of LGBTQ-friendly Service Providers," One Alabama, 2015-JAN-26, at: http://onealabama.org/
  7. Cassie Fambro "Who is willing to marry gay couples? Here's a list by county," Alabama Media Group, 2015-FEB-05, at: http://www.al.com/
  8. Matt Pearce, "Top Alabama judge orders state to ignore federal gay marriage rulings," Los Angeles Times, 2015-FEB-08, at: http://www.latimes.com/
  9. Brian Lyman, "Roy Moore orders ban on same-sex marriage licenses," Montgomery Advertiser, 2015-FEB-08, at: http://www.montgomeryadvertiser.com/
  10. "Alabama Chief Justice Roy Moore orders judges not to issue same-sex marriage licenses," Alabama Media Group, 2015-FEB-08, at: http://www.al.com/
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Copyright © 2015 by Ontario Consultants on Religious Tolerance
Originally written: 2015-FEB-03
Latest update: 2015-FEB-09
Author: B.A. Robinson
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