Moore: Ban still in place

Published 3:00 am Thursday, January 7, 2016

Alabama Chief Justice Roy Moore issued an order Wednesday saying probate judges remain under a court order to refuse marriage licenses to gay couples, even though a U.S. Supreme Court decision effectively legalized same-sex marriage more than six months ago.

In his order, Moore said that a ruling issued last March by the Alabama Supreme Court remains in effect and that probate judges “have a ministerial duty not to issue any marriage licenses” that contradict the state’s constitutional amendment banning same-sex marriages.

Moore’s ruling comes six months after a U.S. Supreme Court ruling that effectively legalized same-sex marriage throughout the country, and it was unclear Wednesday how the ruling would affect local probate judges’ actions in Alabama.

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Pike County Probate Judge Wes Allen said Moore’s order would have no impact on the operations of the local office, which stopped issuing all marriage licenses in 2015 in response to the initial debate.

“The order issued today by Chief Justice Moore does not change the marriage license policy of the Pike County Probate Office,” Allen said. “Under the authority granted by Alabama statute 30-1-9, our policy since February 2015 will remain in place. We do not issue marriage licenses to anyone.”

In January 2015, U.S. District Judge Ginny Granade of Mobile ruled that Alabama’s ban on same-sex marriages was unconstitutional. That ruling prompted some probate judges to begin issuing same-sex marriage licenses while others refused, citing conflicting legal orders.

In March 2015, the Alabama Supreme Court issued an order enjoining probate judges from issuing same-sex licenses contrary to Alabama law. The ruling came at the request of the Alabama Citizens Action Program and the Alabama Policy Institute, as well as Elmore County Probate Judge John Enslen.

In June 2015, the U.S. Supreme Court issued an order effectively striking down state bans on same-sex marriages.

In his ruling on Wednesday, Moore cites conflicts between the state ruling, federal appellate court rulings since June, and the U.S. Supreme Court ruling, saying there “confusion and uncertainty” among probate judges because the court has not issued any briefs on how to proceed.

He also questions whether the U.S. Supreme Court ruling applies to Alabama, as the Eighth Circuit Court of Appeals has ruled that the case invalidated only same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee.

Moore said in his ruling because the Alabama Supreme Court has never lifted the March directive, it remains “in full force.”

Susan Watson, director of the ACLU of Alabama, told the Associated Press it was Moore who was creating confusion, but also predicted that his order would have little effect.

Watson said the same judge who overturned Alabama gay’s marriage ban also issued an injunction against probate judges directing them not to enforce it.

Most judges in Alabama’s 67 counties are issuing marriage licenses to gay couples. Judges in nine counties have shut down license operations altogether to avoid doing so.

“This is a done deal. Get over it,” said Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature.

Of Moore, Todd added, “He’ll be challenged and he’ll lose and he’ll cost the state a lot of money in the process.”

University of Alabama School of Law Professor Ronald Krotoszynski said it’s true as a technical matter the state supreme court has not dissolved the March injunction the U.S. Supreme Court plainly overruled it and federal courts would ruled 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 — 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,” Krotoszynski said.

Editor’s note: The Associated Press contributed to this story.