Alabama Supreme Court orders temporary halt to same-sex marriages
The Alabama Supreme Court ordered a temporary halt to same-sex marriages in an order handed down late Tuesday.
With only one of eight justices dissenting, the court ordered Alabama probable judges to immediately cease issuing marriage licenses to same-sex couples, writing that “confusion reigns” in the state following a federal court ruling overturning the state’s marriage ban.
“Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage. Some other states, like New York, have more recently chosen the new definition. The United States Constitution does not require one definition or the other because, as the Windsor Court noted, “[b]y history and tradition,” and one should add, by the text of the Constitution, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States,’” the order states. “That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.”
The order comes after the U.S. Supreme Court declined to extend the stay of a U.S. District Court ruling striking down the state’s same-sex marriage ban, thus allwoing same-sex marriages to proceed in the state earlier this month. U.S. District Court Judge Callie V. S. Granade ruled in January in two separate cases that Alabama law prohibiting same-sex marriage violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Granade stayed her decisions for 14 days to allow the state to appeal. The stay was scheduled to expire on February 9.
Although some Alabama probate judges have since issued marriage licenses to same-sex couples following the denial of a stay by the U.S. Supreme Court, others have refused. Alabama Chief Justice Roy Moore urged the governor and probate judges to continue to uphold the state’s marriage ban. Moore’s name was not listed on the Tuesday night order and appears to have recused himself from weighing in on the emergency petition, which was brought by Alabama Policy Institute, Alabama Citizens Action Program and Elmore County Probate Judge John E. Enslen.
Under the order, probate judges are given five business days to submit responses stating why they should be able to issue marriage licenses to same-sex couples. Mobile County Probate Judge Don Davis, who was ordered by a federal judge to issue marriage licenses to same-sex couples and has asked to be dismissed from the case, has been given until Thursday to state why he should not be bound by the order.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law,” the order states. “Nothing in the United States Constitution alters or overrides this duty.”
Justice Greg Shaw was the only Alabama Supreme Court justice to dissent in the order, but on the grounds that he does not believe the petition was properly filed.
“It is unfortunate that the federal judiciary has refused to stay the order striking down Alabama’s marriage-protection laws until the Supreme Court of the United States can conclusively rule on the issue within the next few months,” he wrote. “The federal district court’s order did nothing less than change the very definition of the institution of marriage in Alabama. Such a drastic change in Alabama law warranted the granting of a stay. The lack of a stay has resulted in much unnecessary confusion and costly litigation. Because I do not believe the case before this Court is properly filed, I cannot, at this time, express my opinion as to whether the federal court’s decision was correct.”
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