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Alabama: The thirty-seventh same-sex marriage state (FURTHER UPDATED)

FURTHER UPDATED 11:50 p.m.  Judge Granade has denied the motion to hold the Mobile probate judge in contempt.  In another development, several same-sex couples seeking to marry have filed a new lawsuit against that probate judge, seeking orders to compel the issuance of marriage licenses.


UPDATED 1:06 p.m.  Lawyers for one of the same-sex couples involved in the Alabama dispute promptly filed a motion for contempt against a probate judge in Mobile who refused to open the office to issue marriage licenses to same-sex couples.


With the Supreme Court again refusing to delay lower courts’ rulings in favor of same-sex marriage, Alabama on Monday morning became the thirty-seventh state where such unions are legal, and at least four couples were promptly wed at a courthouse in Montgomery.  Alabama’s situation, though, is unique because of a looming legal battle over who will or will not issue marriage licenses to same-sex couples.

Two Justices who had dissented from earlier orders allowing same-sex marriage licensing to occur — Clarence Thomas and Antonin Scalia — protested anew on Monday.  They argued that the Court was showing disrespect for states, and was sending a premature hint that it has already made up its mind on a constitutional issue it will only be taking up in April.

The Court’s denial of a plea by state officials for postponement came some nine hours after a federal trial judge’s temporary delay of same-sex marriages had expired at midnight.  U.S. District Judge Callie Granade of Mobile had struck down the state ban, but delayed the ruling for two weeks.  The majority of the Supreme Court — at least five Justices, but no votes were noted other than those of the two dissenters — gave no explanation for declining to provide a further postponement.

After similar denials by the Court for same-sex marriages in other states, same-sex couples in large numbers were free to marry, and tens of thousands of them promptly did so.  In Alabama, however, it may take some time to sort out the legal opportunity for same-sex couples to wed.

On Sunday, the chief justice of the Alabama Supreme Court, Roy S. Moore, who also serves as the head of the state’s judiciary, sent out a legal memo to all sixty-eight county probate judges — the officials who issue marriage licenses in that state — telling them they had no authority to do so because the federal judge’s ruling striking down the state’s ban does not apply in state courts.

If any of the judges does issue a marriage license that does not obey the state’s ban, the chief justice warned, it would be up to the state’s governor to take action — although the memo did not specify what kind of action — to enforce state law.  Governor Robert Bentley, while supporting the state’s request to the Supreme Court for postponement, had previously ignored a demand by the chief justice to join him in resisting the federal court ruling against the state ban.

U.S. District Judge Granade had issued two separate rulings, striking down both a ban on same-sex marriage and a separate ban on official recognition of same-sex marriages performed in other states.  While the two decisions only operated in technical terms against the state’s attorney general, Luther Strange, the judge later made it clear that officials who refused to issue licenses faced the prospect of being sued for failing to do so and having to pay damage verdicts on the theory that the state’s ban was unconstitutional.

Attorney General Strange said in a public statement on Monday morning after the Supreme Court acted that the state’s probate judges who had any doubt about what they could or could not now do should consult an attorney.  Strange noted that he had no authority under state law to issue marriage licenses.  He had acted on the state’s behalf, however, in asking the Supreme Court for a postponement.

After Judge Granade ruled against the state, the U.S. Court of Appeals for the Eleventh Circuit refused to postpone the ruling beyond its scheduled expiration at midnight Sunday.  The Eleventh Circuit has yet to rule on the constitutional issue on the merits and, in fact, has put all proceedings on that question on hold.

After both lower courts refused to put off the opportunity for same-sex couples to marry, the state then turned to the Supreme Court.   The Court had not acted by the time Judge Granade’s stay order had expired, which was why couples could go ahead and obtain marriage licenses — from willing state judges — even as the delay request remained pending before the Justices.

All but one of the federal appeals courts to rule on the constitutional question have struck down state bans.  Only the U.S. Court of Appeals for the Sixth Circuit has upheld such prohibitions.  That is the ruling that the Supreme Court has agreed to rule, with a hearing to be held in late April.

Alabama’s attorney general had asked the Supreme Court to put off same-sex marriages until after it had decided the cases from the Sixth Circuit.  He expressed regret when that plea was turned down, saying that the result would only be confusion.

It is unclear at this point how many of the state’s probate judges will be willing to issue marriage licenses, but a few had indicated, before Monday that they would do so.

Recommended Citation: Lyle Denniston, Alabama: The thirty-seventh same-sex marriage state (FURTHER UPDATED), SCOTUSblog (Feb. 9, 2015, 11:55 AM),