BIRMINGHAM, Ala. Alabama’s stand against same-sex marriage regained ground Wednesday after the state’s highest court ruled that its ban remains legal, despite federal court pressure to begin issuing licenses to gays and lesbians.
The Alabama Supreme Court ordered county probate judges to uphold the state ban pending a final ruling by the U.S. Supreme Court, which hears arguments in April on whether gay couples nationwide have a fundamental right to marry and whether states can ban such unions.
Stuck between the state’s highest court and a series of federal rulings, many probate judges were at a loss. Mobile County, one of the state’s largest, announced early Wednesday that it would not issue marriage licenses to anyone for now, “given the unprecedented circumstances.”
But more judges were likely to follow Montgomery County Probate Judge Steven Reed, a Democrat and one of the first to comply with U.S. District Judge Callie Granade, who said Wednesday that he has no choice but to turn gays and lesbians away again.
“As a named party in continuing litigation on this matter, I am bound by this order from the state’s highest court, whether I agree with it or not,” Reed said in a statement.
The all-Republican court ruled 7-1 that Alabama’s 68 probate judges must stop issuing marriage licenses to gay and lesbian couples. The justices said U.S. District Judge Callie Granade in Mobile, who ruled the ban unconstitutional, does not get the last word in Alabama, and gave probate judges five days to respond if they believe otherwise.
Saying so could be politically risky in the deeply conservative state, where Alabama’s justices and probate judges must run for office after each term.
Before Tuesday’s ruling, 48 of the state’s 67 counties were acknowledging that Alabama had become the 37th U.S. state where gays can legally wed, according to the Human Rights Campaign, which advocates for gay marriage nationwide. By Wednesday afternoon, the group couldn’t find any county issuing licenses to gay and lesbian couples.
Same-sex couples will likely appeal up to the U.S. Supreme Court if necessary to block the latest state supreme court ruling, said Ben Cooper, chairman of Equality Alabama. “It’s important to understand that this is not nearly the end of this,” he said.
Last month, the top court declined to stay Granade’s order, with only Justices Clarence Thomas and Antonin Scalia dissenting. But the state justices didn’t accept that as a warning of eventual defeat.
“The Alabama Supreme Court has now demonstrated a willingness to defy and nullify a decision of the Supreme Court of the United States, the 11th Circuit Court of Appeals and the federal district court for the southern district of Alabama,” said David Kennedy, who represented the couple whose case resulted in Granade’s ruling.
The 134-page decision did not explicitly invalidate the marriages of hundreds of same-sex couples in recent weeks, but described their licenses as “purported.” It said the state doesn’t discriminate because it bans both men and women from marrying people of the same sex. It called this rational, because it encourages ties “between children and their biological parents.” It dismissed the argument that anyone in love should be able to wed, saying that if so, polygamy would be legal.
At the Jefferson County Courthouse in Birmingham, where about 200 same-sex couples received wedding licenses the first day they were issued and ministers performed marriage ceremonies in the park outside, probate workers said Wednesday that only opposite-sex licenses were now available.
Two women who came in for a license unaware of the decision were refused, said a worker who spoke on condition of anonymity because she wasn’t authorized to release information to the media.
Alabama has done more than any other state to resist same-sex unions, Human Rights Campaign Legal Director Sarah Warbelow said.
“It really is an outlier at this point,” she said. “Most states, when they were instructed by the federal government to issue marriage licenses, have done so quietly and in stride.”
But Elmore County Probate Judge John Enslen, who had refused Granade’s order, applauded the state’s justices on his Facebook page, saying he’s “saddened for my nation that the word ‘marriage’ has been hijacked by couples who cannot procreate.”
Chief Justice Roy Moore, who had told probate judges to ignore Granade’s initial order, recused himself.
Justice Greg Shaw was alone in full dissent. He called it “unfortunate” that federal courts refused a delay pending a final U.S. Supreme Court ruling, but said his fellow justices have created more confusion by “venturing into unchartered waters.”
The Southern Baptist-affiliated Alabama Citizens Action Program and the Alabama Policy Institute, a conservative think tank, had asked for Tuesday’s ruling, “concerned about the family and the danger that same-sex marriage will have,” said Joe Godfrey, executive director of ACAP.
But an attorney for couples who sued said the state justices showed “callous disregard” for their rights.
“Even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history,” said Shannon Minter, legal director of the National Center for Lesbian Rights.
Tuesday’s state high court decision seems to have rebuilt the barrier.
“It’s very frustrating. I had done made up my mind we were going to issue the licenses and I thought that was it,” said Probate Judge Leon Archer in rural Tallapoosa County, which also stopped issuing marriage licenses to gay couples Wednesday. “And I think that is going to be the ruling of the U.S. Supreme Court in June.”