Alabama’s chief justice on Wednesday directed probate judges in the state to enforce the state’s ban on same-sex marriage, seven months after a landmark Supreme Court ruling legalized gay and lesbian nuptials nationwide.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Roy Moore wrote in an administrative order.
Moore points out that the Supreme Court decision, Obergefell v. Hodges, was targeted at Michigan, Kentucky, Ohio and Tennessee and that the U.S. Supreme Court did not specifically address the Alabama ban.
In Wednesday’s order — which is not an opinion of Alabama’s Supreme Court, but rather issued in Moore’s capacity as the head of the Alabama judicial branch — Moore said that three days after the U.S. Supreme Court cleared the way for same-sex marriage nationwide, his court invited parties to “address the effect of the Supreme Court’s decision” on the state.
He said the Alabama Supreme Court is still deliberating about the effect of Obergefell and he pointed out that some probate judges, who issue marriage licenses, have asked for guidance.
“Confusion and uncertainty exist among the probate judges of this state as to the effect of Obergefell on the ‘existing orders,'” he wrote.
What Moore did not mention is that in July, after the Obergefell decision came down, a federal judge in Alabama said that the ruling was binding upon all probate judges in the states.
Officials in two counties, Mobile and Madison, have so far stopped issuing marriage licenses after Moore released his order. Tommy Ragland, a probate judge in Madison County, said he was waiting for his county attorney to read Moore’s directive.
“I expect we will start up again soon,” Ragland said.
Moore has consistently fought against same-sex marriage. In February, he ordered lower court judges in Alabama not to implement a federal court ruling that overturned the state’s ban on same-sex marriage. He then disputed a federal court order that was issued months later that directed all probate judges to cease enforcement of Alabama’s marriage ban.
When the U.S. Supreme Court in June ruled that states must recognize same-sex marriages, Moore said the decision was “even worse” than the high court’s 19th century decision that paved the way for racial segregation.
Objections to Moore’s order were swift from gay rights organizations.
“Justice Moore’s administrative order is meaningless. Every probate judge in Alabama should be complying with (Obergefell v. Hodges) and a federal district court in Alabama has directly ordered them to do that,” said Chris Stoll, a staff attorney with the National Center for Lesbian Rights.
Stoll said that any probate judge who follows the order from Moore would be in violation of the federal court order and put themselves at risk for contempt sanctions.
Gregory M. Lipper, senior litigation counsel at Americans United for Separation of Church and State said, “This is the latest in a long series of attempts by Roy Moore to nullify and otherwise interfere with binding federal civil rights decisions. The Supreme Court could not have been any clearer that marriage equality is the law of the entire land, and if there was any doubt, the federal court in Alabama has made it clear that Obergefell applies fully to Alabama marriage officials.”