John Humphrey, left, and James Strawser wait for a marriage license along with several other gay couples at the Mobile County Probate office in Mobile, Ala., on Feb. 10, 2015.
Photo by Sharon Steinmann/AL.com/AP

New hearing could clear up gay marriage confusion in Alabama

Updated

MOBILE, Alabama – Following days of confusion here over whether probate judges were required to issue marriage licenses to gay and lesbian couples beginning this week, the same federal judge who last month struck down Alabama’s ban on same-sex nuptials is set to hold another hearing that could potentially end the chaos.

U.S. District Judge Callie V.S. Granade, a President George W. Bush appointee, will hear arguments Thursday in a complaint filed by same-sex couples who were denied marriage licenses earlier this week in Mobile County. Last month, Grenade declared Alabama’s same-sex marriage ban unconstitutional in a ruling that went into effect on Monday – the day the nation’s highest court shot down a stay request from Alabama’s Republican attorney general.

That action cleared the way for Alabama to become the 37th state in the nation with legalized marriage equality. But as the week got underway, same-sex couples were still largely unable to receive marriage licenses in a majority of Alabama’s 67 counties.

The reason? Late Sunday, the state Supreme Court Chief Justice Roy Moore ordered probate judges to continue acting in accordance with Alabama’s ban on same-sex marriage. Due to the fact that no probate judge was listed as a defendant, he argued, Granade’s ruling that found the ban unconstitutional didn’t hold any sway over those judges who issued marriage licenses.

Citing “conflicting orders” from Moore and Granade, Probate Judge Don Davis stopped issuing marriage licenses altogether in Mobile County – the second most populous in the state. Twenty-five other counties were refusing to issue marriage licenses to any couple – gay or straight – as of Wednesday afternoon, according to Human Rights Campaign’s count. Meanwhile, 18 counties were selling licenses to just opposite-sex couples.

Related: “Alabama woman arrested after trying to perform same-sex marriage”

The week did see a number of probate judges change course, however, and decide to issue marriage licenses to same-sex couples after all. Twenty-three counties covering some of Alabama’s largest cities, including Birmingham and Montgomery, were issuing marriage licenses to all couples as of Wednesday afternoon. At the beginning of the week, only 13 counties were doing so.

Some legal experts agreed with Moore’s interpretation of the federal order. That is, because the lawsuit listed no probate judges as defendants, no probate judges could be ordered to do anything by Granade’s ruling. But others believed that the U.S. Supreme Court’s decision to deny a stay request from the state and let Granade’s ruling take effect marked the ultimate authority, trumping any kind of directive from Moore.

“Alabama’s probate judges are tasked with following the law,” said Sarah Warbelow, Human Rights Campaign’s legal director, in a statement Wednesday. “Unfortunately, some judges are willfully disobeying a federal court order, and harming loving, committed couples of all kinds in the process. It’s time for order to be restored and for the law to be followed.”

It’s not the first time in Moore’s history – or for that matter, Alabama’s – where federal orders weren’t viewed so much as “orders,” but rather as an opportunity for grandiose defiance in the name of states’ rights. In 2003, Moore was removed from his position as chief justice of the Alabama Supreme Court for refusing to take down a monument he had installed at the judicial building that displayed the Ten Commandments. The sculpture, a federal judge determined, violated the Establishment Clause of the First Amendment to the U.S. Constitution. A few years earlier, in the 1990s, Alabama’s then-Gov. Fob James took a similar stand when he threatened to call in the National Guard to block a court-ordered removal of the Ten Commandments from a Gadsden courtroom. The Constitution’s Bill of Rights, argued James in a 34-page letter to a federal judge, did not apply to the states.

But one of the most infamous acts of Alabamian defiance against the U.S. government took place in 1963, when then-Gov. George Wallace, a Democrat, stood in the schoolhouse door at the University of Alabama in a symbolic attempt to block federally-mandated desegregation. Moore’s actions have drawn hundreds of comparisons to Wallace’s, all of which the chief justice has rejected. But Alabama’s Republican Gov. Robert Bentley, who strongly opposes marriage equality, seemed to see more of a connection between his state’s role in the civil rights movement of the ‘60s, and its role in the marriage equality movement of today.

“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied. I’m not going to do that,” Bentley said in an interview with the Associated Press this week. “I’m trying to move this state forward.”

Alabama and Marriage Equality

New hearing could clear up gay marriage confusion in Alabama

Updated