By: Kelsey Reno, Staff Writer
The U.S. District Court for the Southern District of Alabama recently handed down a judgment allowing same-sex marriages to take place starting February 9th in Alabama. This was met by opposition from Alabama Supreme Court Chief Justice Roy Moore. Moore issued an order instructing Alabama probate judges to ignore the federal order and not issue or recognize any marriage licenses that were not between one man and one woman.[1] The U.S. Supreme Court refused to issue a stay in the lower federal court’s ruling, as they are expected to issue a ruling later this year over same-sex marriage. This put probate judges in the center of confusion as they received conflicting orders. Judge Greg Norris, president of the Alabama Probate Judges Association stated that “it’s just a very difficult situation.”[2] Many of the probate judges followed Moore’s orders with the Human Rights Campaign estimating that 53 of the 67 counties in Alabama were not performing marriages as of Monday.[3] Alabama’s Governor Robert Bentley stated that he would not take any action against any of the probate judges because of the conflicting directions they were receiving.[4]
This is not the first time Chief Justice Moore has had conflict with the federal courts. In 2003 the federal courts ordered Moore to remove a statute of the Ten Commandments at a public judicial building, which he refused to do. This led to Moore being removed by an ethics panel. He was then re-elected to the court in 2012.[5]
This is just one of the latest battles being fought about where the issue of same-sex marriage resides. Some argue that the issue is a civil rights issue and therefore should be mandated by federal law, while others propose that it is a states’ right issue and therefore up to each state to decide on their own. Many are drawing lines of similarity between the events of this week and those of the civil rights movement of the 1960’s. However, the atmosphere is very different today than it was then. It is highly doubtful that the National Guard would be called in to force judges to issue marriage licenses the way that they went sent to force integration.[6] Gov. Bentley has also stated that he has “great respect for the legal process” and that “the issue…will be finally decided by the U.S. Supreme Court later this year.”[7] This shows his willingness to comply with the order, whatever it may be, in the coming months from the Supreme Court.
Chief Justice Moore stated that the federal courts had violated their own rules and overstepped their power.[8] Judge John E. Enslen, of Elmore County, Alabama, echoed those remarks by saying that “the federal judiciary has no authority under the constitution to inquire into a state’s reasoning for its public policy positions on marriage any more that the federal judiciary could questions Alabamians’ selection of a state bird.”[9] Judge Enslen was one of the majority of probate judges that was refusing to issue marriage licenses. Some judges refused to issue any marriage licenses, no matter the orientation of the couples, during this time of confusion.[10] Others do not see the federal courts as overstepping, this includes Stephen Vladeck, Professor of law at American University. Vladeck stated that Moore was incomprehensibly wrong “to suggest that [probate] judges can follow the Alabama Constitution over and above what those judges believe federal law mandates.”[11]
Alabama will likely continue to be in a state of confusion, possibly until the U.S. Supreme Court’s ruling on the constitutionality of same-sex marriage bans later this year. Many see the Supreme Court’s refusal to issue a stay as an indicator that the court will rule in favor of same-sex marriage. Supreme Court Justice Clarence Thomas wrote a much talked about dissent to the denial of the stay stating that this decision “may well be seen as a signal of the Court’s intended resolution.”[12]
[1] Ariane de Vogue, Alabama gay marriages allowed after Supreme Court Order, CNN, Feb. 9, 2015. www.cnn.com/2015/02/09/politics/alabama-supreme-court-gay-marriage/index.html
[2] Alan Blinder and Richard Perez-Pena, Gay Marriage in Alabama Begins, but Only in Parts, The New York Times, Feb. 9, 2015. www.nytimes.com/2015/02/10/us/alabama-supreme-court-same-sex-marriages.html?_r=0
[3] Ariane de Vogue, Alabama judge warns governor against gay marriage rulings, CNN, Jan. 27, 2015. www.cnn.com/2015/02/09/politics/roy-moore-gay-marriage-alabama/index.html
[4] Alabama judge warns governor against gay marriage rulings
[5] Alabama judge warns governor against gay marriage rulings
[6] Justin Worland, How Marriage Equality in Alabama Is Not Like the Civil Rights Movement, Time, Feb. 11, 2015. time.com/3703155/george-wallace-roy-moore/
[7] Worland
[8] Blinder and Perez-Pena
[9] Blinder and Perez-Pena
[10]Blinder and Perez-Pena
[11] Alabama gay marriages allowed after Supreme Court Order
[12] Alabama gay marriages allowed after Supreme Court Order
