The often-controversial chief justice of Alabama, Roy S. Moore, attempted on Wednesday to stop same-sex marriage licensing throughout the state — although a federal judge’s order directly contradicts his move, and the state Supreme Court has yet to sort out its own views on the issue. Moore issued a four-page “administrative order” in his capacity as “administrative head” of all of the state court system.
The key part of the order reads: “Until further order by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.” Those state laws ban same-sex marriage.
In Alabama, the official task of issuing marriage licenses is carried out by 68 probate judges. All of them have been under orders since last May by U.S. District Judge Callie Granade of Mobile to issue licenses to same-sex couples; she ruled that way before the Supreme Court last June in Obergefell v. Hodges declared that those couples, nationwide, have an equal constitutional right to marry. (The judge’s order was upheld in October by the U.S. Circuit Court of Appeals for the Eleventh Circuit, in a case filed by one of the state probate judges.)
Chief Justice Moore did not mention Judge Granade’s order, but he argued that “confusion and uncertainty exist among the probate judges of this state as to the effect of Obergefell” on the orders previously issued by the Alabama Supreme Court against licensing such unions.
The administrative order noted that, when the Supreme Court issued its ruling in the marriage cases, it did so only in cases from four states — Michigan, Kentucky, Ohio and Tennessee. His document cited several federal courts’ rulings since the Supreme Court decision declaring that the cases in other states had not become “moot” just because of the Supreme Court decision. Chief Justice Moore said it was standard law that a ruling only binds the parties involved directly in a case.
However, he appeared to have misinterpreted those other federal court rulings. Those courts found that the cases were not “moot” because same-sex couples still were seeking to have explicit orders recognizing same-sex marriage in their states, and they also wanted to keep the cases alive in order to seek recovery of their attorneys’ fees after succeeding in overturning state bans on same-sex marriage.. In none of the rulings cited in Moore’s order did any court declare that the Supreme Court decision was not binding in states other than the four involved in that ruling.
The Alabama Supreme Court has not spoken on the marriage issue since the Supreme Court decision, It apparently is still studying various proposals from individual probate judges as to what that court should do next. Some of those proposals suggest outright defiance of the Supreme Court decision.
Chief Justice Moore, although he is a member of the state Supreme Court, had previously taken himself out of consideration of the same-sex marriage issue. He said in his order Wednesday that he “was not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on existing orders of the Alabama Supreme Court. That issue remains before the entire Court which continues to deliberate on the matter.”
Lawyers for same-sex couples in Alabama issued statements, referring to the order as a “dead letter” or as unenforceable in the wake of the orders by Judge Granade.