Federal courts have cleared the way for same-sex marriages to begin in Alabama on Monday, but in a last-ditch effort to stop the weddings, the famously conservative chief justice of the state Supreme Court has instructed probate judges not to issue marriage licenses to same-sex couples.
That didn’t stop several couples from camping out at county courthouses in the state, and Probate Judge Alan King in Jefferson County, the state’s most populous, said there appeared to be a larger-than-usual crowd outside the courthouse when he arrived at work Monday.
State Supreme Court Chief Justice Roy Moore, who was ousted from his first chief justice post in 2003 after refusing to remove a Ten Commandments monument from the Alabama Judicial Building in Montgomery, wrote that his order on same-sex marriages is necessary to ensure justice in the state.
“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 the state code or constitution, Moore wrote in the Sunday order.
Section 30-1-19 of the state code states that “marriage is inherently a unique relationship between a man and a woman.”
‘I was shocked’
It’s not clear whether any of the state’s probate judges are listening. A watchdog organization has already denounced the order as a “clear violation of all codes of legal ethics,” and several counties — including Jefferson, Montgomery and Madison — have told CNN they intend to issue same-sex marriage licenses Monday.
“I was shocked,” King said of his reaction to Moore’s order. “I’m old enough to remember the George Wallace stand in the schoolhouse door. I was a kid at the time.”
King was referencing the 1963 attempt by Wallace, the governor, to stop the federally ordered desegregation of schools by blocking black students from entering the University of Alabama’s Foster Auditorium.
Contacted before his court opened for the day, King said he doesn’t want to be on that side of history. After consulting with attorneys who helped him analyze Moore’s order, “I’m convinced it’s my duty to follow the U.S. Constitution and the federal court order. At 8 a.m., we will be issuing marriage licenses to all in Jefferson County. … I don’t think (Moore’s order) is grounded in legal theory, just like Gov. Wallace in the 1960s was not grounded in law,” he said.
Writing on wall
Anyone monitoring the situation in Alabama likely expected Moore to try and block it. Four days after a U.S. District Court judge struck down the state’s ban on same-sex marriages on Jan. 23, Moore hand-delivered a letter to Gov. Robert Bentley calling for him “to stop judicial tyranny and any unlawful opinions issued without constitutional authority.”
Though Moore has invoked the state’s constitution, originally passed in 1901, it should be noted that the Alabama Constitution contains other provisions that have been federally overruled and haven’t been enforced in years. Section 102, for instance, states, “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”
The issue of same-sex marriage in Alabama reached the federal courts after Cari Searcy and Kimberly McKeand, a couple who had been legally married in California, had an adoption petition denied. Searcy had hoped to adopt McKeand’s 9-year-old but was rebuffed.
Alabama’s adoption code gives a person a right to adopt a spouse’s child, but because Alabama didn’t recognize their marriage, Searcy could not qualify for adoption.
Another ruling coming
A federal court struck down the ban but permitted a stay until Monday to allow probate courts to prepare. Alabama Attorney General Luther Strange asked the U.S. Supreme Court to block the marriages until the high court rules on a case on its docket that will decide the fate of same-sex marriages in four states. The U.S. Supreme Court said Monday it would not intervene for now.
“In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months,” Justice Clarence Thomas wrote.
Strange responded in a statement: “In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.” Strange further advised probate judges to consult with their attorneys “about how to respond to the ruling.”
The statement and its reference to judicial confusion echoed the Sunday order issued by Moore, who wrote that all probate judges fall under his supervision.
King wasn’t the only person who felt he had to adhere to a federal ruling over Moore’s edict. The Human Rights Campaign responded that Moore was acting “in clear violation of all codes of legal ethics, boundaries of jurisdiction, and moral decency.”
“This is 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,” HRC legal director Sarah Warbelow said.
King told CNN that his decision to obey the federal court’s orders was a clear-cut one.
“I am a rule-oriented person. We have to have rules and laws as part of an orderly society,” he said.