The chief of the Alabama Supreme Court issued late Sunday a last-minute order to stop same-sex marriages from taking place in the state, but LGBT advocates are saying he has no authority to halt the weddings from beginning on Monday.
In a six-page order, Alabama Supreme Court Justice Roy Moore instructs probate judges to continue to refuse marriage licenses to same-sex couples in Alabama despite federal court rulings against the state’s ban on same-sex marriage.
“Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975,” Moore wrote.
The judge, who’s making his third public attempt to stop same-sex marriages in Alabama, says his order is necessary, among other things, to “alleviate a situation adversely affecting the administration of justice within the state.” In the event a probate judge elects to distribute marriage licenses to same-sex couples, Moore says it is incumbent upon Alabama Gov. Robert Bentley “to ensure the execution of the law.”
According to the Alabama-based Montgomery Advertiser, a Bentley spokesperson said the governor’s office would have a comment on Moore’s letter Monday.
The Moore letter is the latest reflection of discontent among some conservatives in Alabama now that same-sex marriages are set to begin in the state on Monday as a result of federal court rulings.
Alabama Attorney General Luther Strange had called on the U.S. Supreme Court to halt the weddings by placing a stay on U.S. District Judge Callie V.S. Granade’s rulings against the state’s ban on same-sex marriage, but justices are unlikely to accede to the request and have yet to act on it.
According to a report on MSNBC, Alabama may be heading for a “constitutional crisis” when same-sex marriage begins in the state. Of the 26 probate judges contacted by MSNBC, 18 said they were planning on issuing marriage licenses to same-sex couples. But Liberty Counsel, an anti-gay legal firm, reportedly said it was representing at least five Alabama judges who would not issue marriage licenses.
Marengo County Probate Judge Laurie Hall and Pike County Probate Judge Wes Allen have announced they will no longer marry any couple, gay or straight, citing a provision in Alabama law they say makes distribution of marriage licenses optional for probate.
But other judges seem on board with the ruling on the state’s ban on same-sex marriage. Lane Galbraith, a transgender activist, told the Washington Blade that Moore is creating confusion, but marriage-equality forces have cooperation from the Mobile Probate Court.
Late last month, Granade issued an order clarifying her rulings, saying they made clear Alabama’s bans on same-sex marriage are unconstitutional and have the same scope as a federal court decision that brought marriage equality to Florida.
Upon news on Sunday that Moore has urged probate judges to ignore federal rulings against Alabama’s marriage ban, LGBT advocates pounced and said the decisions are binding on the entire state.
Sarah Warbelow, legal director for the Human Rights Campaign, called Moore’s order a “pathetic, last-ditch attempt at judicial fiat” from someone who should respect the rule of law.
“Absent further action by the U.S. Supreme Court, the federal ruling striking down Alabama’s marriage ban ought to be fully enforced, and couples that have been waiting decades to access equal marriage under the law should not have to wait a single day longer,” Warbelow said. “All probate judges should issue licenses tomorrow morning, and Chief Justice Roy Moore ought to be sanctioned.”
Richard Cohen, president of the Southern Poverty Law Center, said Moore has “no authority” to urge probate judges to disregard federal rulings against Alabama’s marriage ban.
“Instead of respecting these rulings, the chief justice has decided to create a crisis in our state but telling the probate judges to ignore the ruling of the district court and threatening them with unspecified gubernatorial action,” Cohen said. “It’s outrageous. We urge the probate judges to follow the Constitution of the United States and issue marriage licenses when their offices open in the morning.”
Evan Wolfson, president of Freedom to Marry, said Moore is “trying to create the illusion of confusion in Alabama, but the only confusion is coming from Roy Moore.”
“Alabamians deserve better than yet another lawless official standing in the doorway to defy the Constitution, incite disorder, and defend discrimination,” Wolfson said. “Loving and committed gay couples in Alabama deserve the same freedom to marry as others around the country. It is time to move forward, and most Alabamians will, just as America has.”
The Southern Poverty Law Center has filed an ethics complaint, which HRC has endorsed, calling for Moore to be removed from the bench. In 2003, Moore was removed after he defied federal court orders to remove the Ten Commandants from the property of the Alabama Supreme Court building, but was later reinstated to his post after winning re-election in 2012.