Couple Greg Mullins, left, and Josh Laning, right, both of Birmingham, stand outside the Jefferson County Courthouse Probate office in Birmingham, Ala., on Jan. 26, 2015, after going trying to get a marriage license.
Photo by Tamika Moore/

Alabama heading for ‘constitutional crisis’ over marriage equality

With still no word from the U.S. Supreme Court over whether marriage equality can go forward in Alabama next week, most probate judges in the state are prepared to issue marriage licenses to same-sex couples beginning on Monday. Some, however, are planning to ignore a federal ruling that struck down the Deep South state’s ban.

Of the 26 probate judges msnbc was able to contact Friday, 18 said they were planning on issuing marriage licenses to same-sex couples next week. But Liberty Counsel, an anti-marriage equality litigation and policy organization, said it was already representing five Alabama judges who would not be issuing marriage licenses to same-sex couples on Monday, and that more judges could soon be seeking the group’s representation.

“The federal decision is not binding on these magistrates,” Mat Staver, founder and chairman of Liberty Counsel, told msnbc. “Their directive has to come from the Alabama state court.”

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Probate Judge Nick Williams of Washington County is one of the magistrates who won’t be issuing marriage licenses to same-sex couples beginning next week, but Staver would not name the other four judges his organization was currently representing. Two other probate judges – Wes Allen of Pike County, and Valerie Davis of Clarke County – said they would no longer grant marriage licenses to any couple, gay or straight, based off their religious objections to same-sex marriage.

“I do not think I am required to compromise my religious beliefs to be Probate Judge,” Davis said in a statement. “Alabama law does not mandate me to issue marriage licenses to anyone of any gender.”

The confusion over who is eligible to marry in Alabama stems from the state’s top judicial official, Chief Justice Roy Moore, who sent a memo earlier this week that instructed the probate judges to continue acting in accordance with Alabama’s ban on same-sex nuptials. That ban was struck down by U.S. District Judge Callie V. S. Granade, a President George W. Bush appointee, last month, but she stayed the effect of her ruling until Feb. 9. On Tuesday, the 11th Circuit Court of Appeals refused to extend that hold.

Moore, however, was not willing to accept marriage equality’s imminent arrival in Alabama.

“[T]he rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law,” Moore wrote in a memo Tuesday. Judges who issue marriage licenses to same-sex couples, he added, “would in my view be acting in violation of their oaths to uphold the Alabama Constitution.”

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A similar argument came up in the days prior to marriage equality’s legalization in Florida last year. After U.S. District Judge Robert L. Hinkle struck down the Sunshine State’s ban on same-sex marriage, a private law firm that represents the state association of Florida Court Clerks & Comptrollers sent out a memo saying that only one clerk – the defendant named in the federal lawsuit that led to the ban’s demise – was required to grant a same-sex couple their marriage license. Judge Hinkle later issued another order stating that clerks who did not comply with his earlier ruling would be in violation of the Constitution and likely face expensive legal action.

Alabama’s Republican attorney general has asked the U.S. Supreme Court to halt same-sex marriages from going forward in the state while the appeals process plays out. But time is quickly running out for the justices to act. If the high court denies the attorney general’s request, said Carl Tobias, a law professor at the University of Richmond, and probate judges hold fast to their refusal to grant same-sex couples their marriage licenses, it could set up a “constitutional crisis.”

Valerie Nelson and Cristian Santana contributed to this report.