Alabama Top Court Orders Halt to Marriage Licenses for Gays

Alabama’s highest court ordered state probate judges to stop issuing marriage licenses to gay couples, escalating a confrontation with the federal judiciary over same-sex unions.

With Alabama Chief Justice Roy S. Moore abstaining and another judge disagreeing, seven members of the state’s supreme court concurred in an order declaring the panel’s “authority and responsibility” to act in the face of a series of rulings by a Mobile federal court judge this year invalidating the state’s same-sex marriage ban.

The U.S. Supreme Court has agreed to consider during its current term whether gay couples have a right to wed under the Constitution and could issue a ruling as soon as June. The high court refused to put gay marriage on hold in Alabama while the state appeals. Gay marriage has been legalized in 36 other states.

Until the U.S. Supreme Court decides the matter, Alabama’s highest court is free to interpret the federal constitution independently from the federal courts, the state justices said in Tuesday’s order. They gave the state’s probate judges five business days to file any objection to the decree.

‘Deeply Unfortunate’

“It is deeply unfortunate that even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history,” said Shannon Minter, a lawyer for the National Center for Lesbian Rights who helped overturn the state’s ban.

Monroe County Probate Judge Greg Norris, president of the state’s 68-member Alabama Probate Judges Association, didn’t immediately respond to an e-mail after regular business hours seeking comment on Tuesday’s order.

In February, the chief judge ordered the state’s probate judges to uphold the gay-marriage ban enacted by Alabama voters nine years ago.

While some obeyed his commandment, others didn’t, creating a legal patchwork in the state.

“Confusion reigns,” the court’s majority said on Tuesday. “But the problems that lie before us are not limited to the confusion and disarray in the ministerial act of licensing marriages.”

‘Overnight Revolution’

Recognition of the right of same-sex couples to wed “will work an expansive and overnight revolution” in other areas of the state’s laws relying upon “the traditional definition of marriage,” the justices said.

They disputed the reasoning behind the January rulings by U.S. District Judge Callie Granade in Mobile and those legalizing gay marriage elsewhere in the U.S. Their state and others have a rational basis for encouraging marriage and child-rearing by heterosexual couples while preventing it for gay couples, the majority said.

The dissenting justice, Greg Shaw, said the case, filed by public interest groups directly with the Supreme Court rather than a lower state court, wasn’t properly before the panel and it didn’t have jurisdiction to consider the issue.

Shaw said his colleagues were “venturing into uncharted waters and potentially unsettling established principles of law” to address an issue that will soon be decided by the nation’s Supreme Court.

Moore’s Role

While not formally recusing himself from the case, Moore didn’t participate in the vote on the ruling, his chief of staff, Ben DuPre, said Wednesday. DuPre declined to say whether the chief justice had a role in writing the ruling, saying that the process was “confidential” and that the majority decision was officially unsigned.

Will Gilbert and Brian Jernigan had planned a backyard wedding ceremony for March 14. When they heard of an effort to block same-sex unions, they hurried to a minister last month and got a marriage license at the Jefferson County courthouse.

“I had hoped it wouldn’t have come to this and been merely a rumor and that the South could actually be progressive and not take two steps back,” Gilbert said after Tuesday’s ruling.

Only about 10 of Alabama’s 67 counties weren’t issuing marriage licences to same-sex couples before Tuesday’s ruling, said Heather Reed, a board member and spokeswoman for the gay-rights group Equality Albama.

“Now nobody’s issuing them at all,” she said.

The Birmingham-based group organized a “Wedding Week” in Huntsville last month. Reed said 161 couples from Alabama and from neighboring Georgia, Tennessee and Mississippi -- where gay marriage remains banned -- were married.

The case is Ex parte State of Alabama ex rel. Alabama Policy Institute, 1140460, Supreme Court of Alabama (Montgomery).

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