Gay and lesbian couples began receiving marriage licenses in Alabama Monday, following the U.S. Supreme Court’s decision to deny the state’s request for a stay of a federal ruling that struck down the state’s ban on same-sex nuptials. The action cleared the final hurdle for Alabama to become the 37th state -- and second in the Deep South after South Carolina -- where gay and lesbian couples can legally wed.
Or at least, it should have been the final hurdle.
Late Sunday, Alabama’s top judicial official, Chief Justice Roy Moore, sent a letter to probate judges ordering them to turn away same-sex couples seeking marriage licenses. The directive went one step further than a letter he had sent earlier in the week advising probate judges to continue acting in accordance with Alabama’s ban.
In a phone interview with NBC News Monday, Moore doubled down on his view that federal courts have overstepped their authority by ordering judges to grant same-sex couples marriage licenses.
"The U.S. district courts have no power or authority to redefine marriage," said Moore. "Once you start redefining marriage, that's the ultimate power. Would it overturn the laws of incest? Bigamy? Polygamy? How far do they go?"
Moore also rejected comparisons to former Alabama Gov. George Wallace, who in 1963 famously stood in the schoolhouse door at the University of Alabama to block federally-mandated integration.
"I disagree with standing in the schoolhouse door to prevent blacks from getting equal education," Moore said. "We're talking about a constitutional amendment to preserve the recognition that marriage is one man and one woman, as it has been for centuries."
Based off Moore's order, some probate judges said they would not be issuing marriage licenses to same-sex couples on Monday. Others said they wouldn’t issue marriage licenses to any couple, gay or straight, due to their religious objections to same-sex marriage. But most of the judges msnbc was able to contact last Friday said they were planning on complying with the federal ruling that overturned Alabama’s ban.
A majority of lawyers believe that any judge who listens to Moore and not the federal orders in favor of marriage equality would be in violation of the U.S. Constitution.
"I think couples who want to marry will sue judges who refuse to issue licenses," said Carl Tobias, a law professor at the University of Richmond, via email. "I expect them to return to Judge Granade [the federal judge who struck down Alabama's same-sex marriage ban] and ask her to issue an order requiring that, but she already said as much in her clarifying order last week. If state judges still refuse, she could hold them in contempt or invoke other measures to have them comply. The only counter is that SCOTUS has not ruled on the merits but it did OK lifting the stay."
Alabama voters overwhelmingly approved the state’s constitutional ban on same-sex marriage in 2006. But last month, U.S. District Judge Callie V. S. Granade, a President George W. Bush appointee, struck it down, staying the effect of her ruling until Feb. 9. The state’s Republican Attorney General Luther Strange then asked for a longer stay from the 11th Circuit Court of Appeals, which has jurisdiction over Alabama. They said no. And on Monday, as same-sex couples were lining up at courthouses across the state for their marriage licenses, the nation’s highest court said no to Alabama’s request as well. Only Justices Antonin Scalia and Clarence Thomas dissented.
“The issue of same sex marriage will be finally decided by the U.S. Supreme Court later this year,” Alabama Gov. Robert Bentley said in a statement Monday afternoon agreeing with the dissenting opinion from Justices Thomas and Scalia. “I have great respect for the legal process, and the protections that the law provides for our people. I am disappointed that a single Federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman."
The high court will hear challenges to four same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee next April. That case could yield an historic ruling affirming the right of same-sex couples to marry in every state across the country. By allowing marriage equality to go forth in Alabama, the Supreme Court seems to be hinting at its intention to declare a constitutional right for gay and lesbian to legally wed. In fact, Justice Thomas himself may have put in best in his dissent Monday, saying that his colleagues’ decision to deny Alabama’s request for a stay “may well be seen as a signal of the Court’s intended resolution of that [constitutional] question.”
While well over a majority of the country now allows same-sex marriage, and opposition to such unions has dropped considerably in recent years, there still remains “a layer of uneasiness and discomfort,” according to a GLAAD report released Monday. Among 3,575 non-LGBT Americans that the group surveyed, the report found one-third (34%) would feel uncomfortable attending the wedding of a same-sex couple. Twenty-two percent said they would feel very uncomfortable.
"Closing the gap to full acceptance of LGBT people will not come from legislation or judicial decisions alone, but from a deeper understanding and empathy from Americans themselves," said GLAAD President & CEO Sarah Kate Ellis in a statement. "Accelerating acceptance will require the help of not just LGBT people, but also their allies - everyday Americans who feel strongly and take an active role to make sure that their LGBT friends and family are fully accepted members of society."