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Same-sex marriage: Finally settled in Alabama?

One year and a day after the Alabama Supreme Court had set itself up to defy the Supreme Court on same-sex marriage, its nine members on Friday ended without a decision a case filed by two conservative advocacy groups urging that court to allow no such unions in the state.  A total of 170 pages of writing emerged, however, and much of it contained harsh criticisms of the Court for the ruling it did issue last June, in Obergefell v. Hodges, making marriage open nationwide to same-sex couples.

Of course, it has been true since last August that all sixty-eight probate judges in Alabama — the officers whose duty it is to issue marriage licenses — have been under a federal court’s order to issue them equally to same-sex couples.  But the lingering case before the Alabama Supreme Court had left the probate judges in the state wondering whether they would be getting different mandates from their own state’s highest court, putting them in a bind between state and federal judicial powers..

On March 3 of last year, with one of its justices in dissent, Alabama’s Supreme Court had flatly barred probate judges in the state — if they were not then covered by a more limited equality order from a federal court — from issuing any licenses for the marriage of same-sex couples.  That came at the same time that a federal judge in Mobile was reviewing pleas by gay rights groups to allow such marriages in the state, even before the Supreme Court had issued a final ruling.

Alabama’s often controversial state chief justice, Roy S. Moore, had taken himself out of the case filed in his court by the two groups opposed to same-sex marriage, because he had personally issued an administrative order earlier to probate judges not to issue any licenses to such couples.

On Friday, however, Chief Justice Moore reentered the case, and filed a ninety-four-page concurring opinion in which he argued that the March 3, 2015 opinion in which he had not participated remained on the books and was still in effect, declaring the state’s ban on same-sex marriage to be valid under the federal Constitution.  Other members of the state court, however, disputed that, contending that the dismissal of all pending motions on the subject of same-sex marriage amounted to a non-decision on anything that was at issue.

One other Justice, Tom Parker, was equally as scathing about the Supreme Court’s ruling as was Chief Justice Moore, with Parker protesting “judicial despotism” and proclaiming that “the rule of law is dead.”   Parker penned only thirteen pages in his protest.

Even Justices who did not support the notion that the year-old state ruling was still in effect expressed personal disagreement with the Supreme Court’s Obergefell decision, and voiced worry that the ruling had essentially destroyed all of the state’s existing marriage laws, and not just the ban on same-sex marriage.

Throughout the time that the case seeking open defiance of the Supreme Court was pending, one of the judges, Justice Greg Shaw, had been arguing repeatedly against any such resistance.   On Friday, in his twenty-five-page concurring opinion, joined in part by two other justices, Shaw contended that the state court should not put itself in defiance of the Supreme Court, and contended that the Obergefell decision was binding all across the nation, not just binding in the four states whose bans were directly at issue in that decision — contrary to an argument made by Chief Justice Moore about the supposedly limited nature of the Obergefell ruling.

With the outright dismissal of all matters related to the defiance case, that legal controversy came to an end, leaving Alabama’s probate judges under only the federal court order to treat same-sex couples equally in access to marriage licenses.


Recommended Citation: Lyle Denniston, Same-sex marriage: Finally settled in Alabama?, SCOTUSblog (Mar. 4, 2016, 3:37 PM),