Alabama court won’t defy same-sex ruling

Published 3:00 am Saturday, March 5, 2016

BIRMINGHAM, Ala. (AP) — The Alabama Supreme Court refused Friday to defy the U.S. Supreme Court ruling that effectively legalized same-sex marriage nationwide, cutting off a conservative bid to prevent gay weddings in the state.

The court issued a one-sentence order dismissing a challenge by a probate judge and a conservative policy group that wanted the state to bar gay marriage despite the landmark federal decision.

In one of several written opinions accompanying the order, Justice Greg Shaw called the decision a “clear refusal” to ignore the Supreme Court ruling last June.

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In Pike County, Probate Judge Wes Allen said Friday’s ruling would have no impact, as he stopped issuing all marriage licenses in February 2015 because of the conflicts in the legal cases.

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

Several other state justices railed against the high court’s ruling on Friday while noting they can’t overturn it.

Chief Justice Roy Moore, a Christian conservative who has repeatedly spoken out against same-sex unions, wrote that previous state orders barring gay marriage in Alabama remain. Most probate judges already are ignoring that directive, however, and hundreds of same-sex couples already have wed in Alabama.

Eric Johnston, an attorney for the Alabama Policy Institute, which went to court seeking to prevent more gay marriages in Alabama, said the decision left opponents nowhere to turn in the court system. “The order effectively ends the case,” he said in an email interview. “It appears to give us no option.”

Most Alabama counties have been issuing same-sex licenses for months. Randall Marshall, legal director of the American Civil Liberties Union of Alabama, said that while some of Alabama’s 67 counties quit issuing marriage licenses completely, none was issuing licenses to straight couples while denying licenses to gay couples.

“I don’t think that we will see any change going forward,” he said by email.

While the court used only 11 words in its order, members of the all-Republican bench railed against the U.S. Supreme Court decision in multiple written opinions totaling 169 pages.

Quoting everything from past court rulings to the Bible and the 1974 song “Feelings,” the chief justice called the court’s ruling “immoral, unconstitutional and tyrannical.” He referred to homosexuality as a “disgrace to human nature” which can’t be compared to opposite-sex intimacy. “

Sodomy has never been and never will be an act by which a marriage can be consummated,” Moore wrote.

Justice Tom Parker said the decision in which the Supreme Court gave the go-ahead for gay marriage nationally meant “the rule of law is dead.”

Similarly, Justice Michael Bolin said the U.S. Supreme Court sided with advocates of same-sex marriage “without any constitutional basis,” yet added: “I do concede that its holding is binding authority on this court.”

Marshall, the ACLU attorney, said state probate judges could face federal court sanctions if they attempt to discriminate against same-sex couples now that the state Supreme Court has acted.

The justices’ writings revealed what seemed to be deep splits within the court.

Justices Bolin and James Main said it would be “erroneous and unjust” to attribute other judge’s opinions to them, and Shaw distanced himself from Moore’s arguments that he had a right to consider the case despite his past positions against same-sex unions.

“Whether any participation or vote by (Moore) violates the Canons of Judicial Ethics is an issue I do not address,” wrote Shaw.