WASHINGTON — With the U.S. Supreme Court silent as of Sunday evening on Alabama's request to keep a pair of rulings striking down the state's ban on same-sex couples' marriages on hold while the state appeals the cases, Alabama's own chief justice, Roy Moore, issued an order purporting to bar probate judges there from issuing marriage licenses to same-sex couples.
The move sets up a stark contrast — and a possible crisis — in hours as probate court offices open across the state Monday morning with no clear answer on whether they should grant marriage licenses to same-sex couples or not.
Citing an aim of "ensur[ing] the orderly administration of justice within the State of Alabama," Moore wrote on Sunday night: "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."
The order — not issued in any case but instead issued in Moore's role as "the administrative head of the judicial system" — came hours before stays are due to end in two federal court rulings striking down the state's marriage ban amendment and statutes.
Absent word from the Supreme Court before Monday, U.S. District Court Judge Callie Granade made clear in her most recent order in either of the cases, on Feb. 3, that the stay ends on Monday "[i]f the Supreme Court denies a stay or does not rule before February 9, 2015." The stay, she explained, would be in place until Monday "to allow the Probate Courts of this state to be completely prepared for compliance with the rulings" in the cases.
Although Alabama Attorney General Luther Strange asked the Supreme Court, in a request made to Justice Clarence Thomas, for a stay pending the appeal of the cases, neither Thomas nor the full court had responded to the application by Sunday night — meaning Granade's existing stay would end at midnight in Alabama and her ruling would go into effect.
With the deadline approaching — and no word from the U.S. Supreme Court justices — Moore, in Alabama, took his own action Sunday night, earlier reported at WAFF.
Moore — previously removed from the bench for refusing to remove a replica of the Ten Commandments from the courtroom back in 2003 — already questioned the authority of Granade's ruling in a letter to Alabama Gov. Robert Bentley and urged probate judges against granting marriage licenses to same-sex couples should the stay end. Now, he purported to bar the probate judges from issuing licenses that violate the amendment or statute hours before Granade's order striking down the amendment and statutes is due to go into effect.
When the Alabama Probate Judges Association and Moore initially criticized the ruling, Granade issued an order clarifying her judgment in the first of her decisions, noting on Jan. 28, "[I]f the stay is lifted, the Judgment in this case makes it clear that ALA. CONST. ART. I, § 36.03 and ALA. CODE § 30-1-19" — the constitutional and statutory provisions barring same-sex couples from marrying — "are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment."
Quoting at length from the federal court decision in Florida that led to same-sex couples marrying there, Granade quoted that judge's statement that, while specific parties may not, technically, be covered by the current ruling, a party denied a marriage license could, through a process called intervention, seek to add other officials as defendants in either of the existing lawsuits.
Additionally, Granade quoted the Florida judge as follows: "The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses."
Even before Moore's Sunday night order, as of the evening of Feb. 7, at least five probate judges in Alabama said that they would not be issuing marriage licenses to same-sex couples on Monday. "Two, in Clarke and Pike counties, say they won't issue any licenses, even to opposite-sex couples. One, in Marengo County, says the forms will be available but she won't sign them. And probate judges in Washington and Covington counties say they won't issue to same-sex couples," AL.com reported.
Then came Moore's order on Sunday night. It was not immediately clear what effect Moore's latest foray into the fight would have.
In the Sunday night order, Moore added that, if any probate judge does issue a marriage license to a same-sex couple, "it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests 'the supreme executive power of this state,' Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law."
The state, while vigorously defending the ban in court, had — prior to Moore's order — been preparing for the possibility of Monday marriages, sending out new, gender-neutral marriage forms to probate judges throughout the state on Feb. 5.
The U.S. Supreme Court has not stayed any federal court marriage decisions from going into effect since its Oct. 6, 2014 decision not to hear appeals of marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin.
On Jan. 16, though, the Supreme Court agreed to hear cases challenging marriage bans in Kentucky, Michigan, Ohio, and Tennessee.
Alabama's is the first stay request to reach the justices since the court decided to hear the other cases, and Alabama officials have argued that the court should grant the stay to allow the court to decide the overall issue before Alabama is forced to implement the federal court's ruling in its cases.
The Southern Poverty Law Center, which filed an ethics complaint against Moore because of his letter to Gov. Robert Bentley regarding the case, responded to Sunday's night's administrative order by calling it "outrageous" and saying that Moore had "no authority" to tell the probate judges to — as SPLC President Richard Cohen put it — "ignore" the federal court ruling.
The Human Rights Campaign, which previously issued support for SPLC's ethics complaint against Moore, joined in criticism of Moore on Sunday, saying he "ought to be sanctioned."
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at email@example.com.
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