UPDATED Friday 9:01 p.m. The number of counties where marriage licenses are now being issued has risen to 50. There are 68 probate judges in 67 counties with authority to issue such licenses. (There are two probate judges for Jefferson County.)
With a federal judge for the first time ordering a county official in Alabama to start issuing marriage licenses to same-sex couples, the thirty-seventh state where such unions are now allowed saw a spreading opportunity for gays a lesbians to wed. As of Thursday, probate judges in 23 of the state’s 68 counties were issuing such licenses.
Shortly after holding a hearing on the issue Thursday, U.S. District Judge Callie V. S. Granade of Mobile ordered the Mobile County probate judge to open the marriage licensing bureau in his office, and start giving same-sex couples official permission to get married. The judge, Don Davis, began doing so shortly afterward.
Last month, Judge Granada had struck down Alabama’s laws banning same-sex marriage and barring recognition of such marriage performed in other states. That ruling, however, only applied to the state attorney general, Luther Strange. The Supreme Court left that ruling intact on Monday, and some judges in the state began issuing licenses and same-sex couples started getting married.
Probate Judge Davis in Mobile County held back, saying he was unsure of his legal duty because the state’s chief justice, Roy S. Moore, last Sunday had ordered all probate judges not to issue marriage licenses, and told them they were not bound to obey Judge Granade’s decision against the state’s ban. Davis unsuccessfully sought guidance from the state supreme court, but it refused, ruling that the judge did not have the authority to seek an advisory opinion from the state tribunal.
Prompted by Judge Davis’s refusal to issue marriage licenses this week, four same-sex couples sued him in Judge Granade’s federal court, resulting in Thursday’s order requiring him to act on those couples’ requests.
As of Thursday night, it was unclear how many other probate judges across the state would begin issuing marriage licenses to same-sex couples, in order to avoid being sued personally for failing to do so.