Alabama Chief Justice Roy Moore on Wednesday said state probate judges remain under a court order to refuse marriage licenses to gay couples even though a US. Supreme Court decision effectively legalized same-sex marriage more than six months ago.
The outspoken chief justice, who previously tried to block gay marriage from coming to the Deep South state, issued an administrative order saying the Alabama Supreme Court never lifted a March directive to probate judges to refuse licenses to gay couples.
"Until further decision by the Alabama Supreme Court, the existing orders ... 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," Moore wrote.
But the chief justice stopped short of directly ordering judges to refuse the licenses. He wrote in his order that he was not "at liberty to provide any guidance to Alabama probate judges on the effect of (the Supreme Court ruling) on the existing orders of the Alabama Supreme Court."
Nonetheless, at least three Alabama counties suspended all marriage license operations — not issuing licenses to anyone— as a result of his order.
The state Supreme Court issued its directive to refuse licenses to gay couples at the request of conservative probate judges after a federal judge ruled in January 2015 that the state's gay-marriage ban was illegal. Months later, in June, the U.S. Supreme Court issued a ruling that effectively legalized gay marriage nationwide.
The state court had asked for briefs on how to proceed after the U.S. high court ruling, but never issued any follow-up orders. Moore said he was issuing his latest administrative order on Wednesday because there was "confusion" among probate judges on how to proceed.
Susan Watson, director of the ACLU of Alabama, said it was Moore who was creating confusion, but she also predicted that his order would have little effect. Watson noted that the same federal judge who initially overturned Alabama's gay marriage ban also issued an injunction prohibiting probate judges from enforcing the ban.
Most judges in Alabama's 67 counties are issuing marriage licenses to gay couples, although at least three Alabama counties suspended all marriage license operations Wednesday in response to Moore's order. That is in addition to the judges in nine counties who had already shut down their operations following the U.S. Supreme Court decision.
One of those who took action Wednesday was Mobile County Probate Judge Don Davis, who said in a statement that he had closed the marriage license office to "ensure full compliance with all court rulings."
Lawrence County Probate Judge Michael Praytor said he had asked the opinion of the county attorney, and would likely make a decision Thursday on how to proceed.
"I'm waiting on clarification," Praytor said.
Patty Hanson, chief clerk of the Madison County Probate office, said officials there are also awaiting guidance from the county attorney.
"They could apply for them, but we would just hold them until the next day," Hanson said.
Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature, said it is time for Moore to stop fighting the ruling of the U.S. Supreme Court.
"He'll be challenged and he'll lose and he'll cost the state a lot of money in the process," Todd said.
University of Alabama School of Law Professor Ronald Krotoszynski agreed.
He said that although it is technically true the state Supreme Court never withdrew its March injunction, "the U.S. Supreme Court plainly overruled it and federal courts would rule against judges who refuse licenses."
"In light of this reality, ordering the state's probate judges to refuse to issue marriage licenses to all couples who seek them constitutes an exercise in futility," Krotoszynski said. "At best, it sows chaos and confusion; at worst, it forces couples to bring federal court litigation in order to exercise a clearly established federal constitutional right."
Moore has become one of the state's most outspoken opponents of gay marriage, and he has won praise from some conservative groups for his position that states should continue to try to fight the U.S. Supreme Court over the issue. In his order Wednesday, he wrote that it was "yet to be determined" if the state Supreme Court would agree with judges who have suggested that the U.S. Supreme Court decision is up for interpretation.
Washington County Probate Judge Nick Williams said the order has no impact on his county since he stopped issuing marriage certificates altogether in June, but he praised Moore.
"I respect our chief justice greatly," Williams said. "I think he's a man of honor and I respect everything he does."
Montgomery County Probate Judge Steven Reed, one of the first probate judges to issue same-sex marriage licenses in the state, on Wednesday tweeted this statement:
"Judge Moore's latest charade is just sad & pathetic. My office will ignore him & this."
