The chief justice of Alabama’s Supreme Court has ordered the state’s probate judges not to issue marriage license to same-sex couples — despite a decision by the U.S. Supreme Court last year that legalized same-sex marriage in America.
Roy S. Moore, the chief justice of the state Supreme Court, issued an administrative order Wednesday. He noted that the Supreme Court of Alabama had, in March of 2015, upheld the state’s ban on same-sex marriage.
Three months later, the U.S. Supreme Court ruled bans on same-sex marriage unconstitutional, in Obergefell v. Hodges.
“Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’ ” — that is, the March 2015 instructions that bans on same-sex marriage should be enforced, Moore wrote in his order.
He also suggests that the Supreme Court decision invalidates the marriage bans in Michigan, Kentucky, Ohio and Tennessee — that is, the specific laws named in Obergefell — but not necessarily in Alabama.
“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court,” he wrote. “That issue remains before the entire [Alabama Supreme] Court which continues to deliberate on the matter.”
Instead, Moore argued that while the “legal analysis is yet to be determined,” the “confusion” over the law has an adverse effect on the administration of justice in Alabama.
Based on that reasoning, he ordered that probate judges have “a ministerial duty” not to issue marriage licenses to same-sex couples — at least until the Alabama Supreme Court has ruled on the impact of the U.S. Supreme Court’s decision.
Moore has a history of facing off with the federal courts over this issue. In January 2015, U.S. District Court Judge Ginny Granade ruled that the state’s marriage ban was unconstitutional. The next month, Moore instructed probate judges that they weren’t bound by Granade’s decision — leaving probate judges with two contradictory orders.
Granade reaffirmed her rulings in May, and again after the Obergefell decision.
The chief federal prosecutors in Alabama issued this statement:
“The Chief Justice of the Alabama Supreme Court has issued an administrative order, directing probate judges that they may not issue marriage licenses to same-sex couples, despite the U.S. Supreme Court’s decision last year on marriage equality. We have grave concerns about this order, which directs Alabama probate judges to disobey the ruling of the Supreme Court,” said U.S. Attorneys Joyce White Vance of the Northern District of Alabama and Kenyen Brown of the Southern District of Alabama. “Government officials are free to disagree with the law, but not to disobey it. This issue has been decided by the highest court in the land and Alabama must follow that law.”
The Southern Poverty Law Center called Moore’s order a “dead letter,” writing that “in no way does his administrative order supersede Judge Granade’s federal injunction.”
“If probate judges violate the injunction, they can be held in contempt,” the SPLC said in a statement. “This is Moore yet again confusing his role as chief justice with his personal anti-LGBT agenda.”
Moore rose to prominence nearly 20 years ago, as the “Ten Commandments” judge — he hung a plaque with the religious edicts in his courtroom, and later, as chief justice, he put a monument to the commandments in the state judicial building. He was removed from office in 2003, when he defied a federal order to take down the monument, as NPR’s Debbie Elliott reported last year.
He was re-elected as Alabama chief justice in 2012.