Although the decision is overwhelmingly enforced throughout the U.S., the South remains a region where in some places same-sex couples aren’t assured a marriage licenses despite the decision in Obergefell v. Hodges finding that said banning gay nuptials is unconstitutional.
Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said same-sex couples by and large are able to marry in the South, but LGBT people in the region still face discrimination as a result of state laws that undermine their rights.
“A year into marriage equality we see two competing realities in the South,” Beach-Ferrera said. “On the one hand, same-sex couples are marrying across the South, living more openly and experiencing increasing support. But at the same time, anti-LGBT politicians are devising laws – like HB 1523 in Mississippi and SB 2 and HB 2 in North Carolina — that are a backlash to Obergefell and that target the LGBT community for continued discrimination. LGBT Southerners navigate the tension between these realities everyday in countless ways.”
Alabama is the state where obstruction to same-sex marriage is the most pervasive. According to the American Civil Liberties Union of Alabama, 12 of the state’s 67 counties are still not granting marriage licenses to same-sex couples.
Of these 12, 11 counties — Choctaw, Washington, Marengo, Clarke, Covington, Geneva, Pike, Bibb, Autauga, Elmore and Cleburne — are enforcing a “no licenses” policy to all couples, gay or straight, in the aftermath of the decision. Another county, Coosa, is issuing licenses, but says it’s unable to grant them to same-sex couples because of “technical difficulties.”
Brock Boone, staff attorney for the ACLU of Alabama, said she was told by the clerk these technical difficulties started around the time of “this same-sex stuff.”
“I asked her in December when they plan to fix it, and she was unsure,” Boone said. “I asked in February when it has no been fixed, again she was unsure. Then I asked in June, still unsure and no plans for it to be fixed. They have been marrying opposite-sex couples since Obergefell, but have not married any same-sex couples.”
Unlike other states, Alabama has seen additional confusion despite the Obergefell decision as a result of now suspended state Chief Justice Roy Moore and the Alabama Supreme Court insisting federal court decisions on same-sex marriage don’t apply to the state. Even after the U.S. Supreme Court decision was handed down, the Alabama Supreme Court in March refused to withdraw its order against same-sex marriage.
U.S. District Judge Callie V. Granade, who issued the initial ruling in favor of same-sex marriage in Alabama, issued an order earlier this month clarifying marriage equality has come to the state despite “the failure of the Alabama Supreme Court to set aside its earlier mandamus order.”
Despite the order, Boone said “there is no indication” that after the latest ruling these counties will now issue marriage licenses to same-sex couples, but additional litigation could happen “once we have a couple willing to serve as plaintiffs.”
In North Carolina, an obstruction to marriage equality is Senate Bill 2, which enables magistrates in the state to “opt out” of performing marriages if they have a religious objection. Invoking the “opt out” means a magistrate cannot perform any marriage, gay or straight, for a six-month period. After the six months passes, the exemption can be renewed.
The legislature enacted the measure last year by overriding the veto of Gov. Pat McCrory, who’s now known for signing into law House Bill 2, the measure that blocked local pro-LGBT ordinances and banned transgender people from using the public restroom in schools and government buildings consistent with their gender identity. At the time of his veto, McCrory said “no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath.”
According to the North Carolina Administrative Office of the Courts, a total of 29 magistrates as of this week have recused themselves from performing civil marriages in the state, but the names of magistrates who’ve recused themselves aren’t public because that is protected by a public records law. The Judicial Branch has about 670 magistrates statewide.
The law stipulates a magistrate must be on hand to perform marriages in a county office and allows magistrates to assume that task if all officials in a particular invoke the exemption. Late last year, all magistrates in the McDowell County Clerk of Superior Court reportedly invoked the exemption, requiring magistrates from Rutherford County to fill in for officials and limiting the hours McDowell County offers marriage services.
In Mississippi, marriage equality may be compromised by the sweeping “religious freedom” bill recently signed into law by Gov. Phil Bryant. A component of law, which among other things allows businesses and individuals to deny services to LGBT people, permits clerks and registers of deeds to recuse themselves from facilitating same-sex marriages, although they must ensure the licensing of legally valid marriage, including same-sex marriages, aren’t impeded as a result.
Zakiya Summers, a spokesperson for the ACLU of Mississippi, said she’s unaware of same-sex couples being unable to obtain marriage licenses as a result of the law, but added it “plays an interfering role” in marriage equality.
“Bottom line is that when it comes to being able to earn a living, having a place to live, or being served by a business or government office, gay and transgender Mississippians should be treated like everyone else and not be discriminated against just because of who they love, who they are married to, or if they’re unmarried,” Summers said. “They should not have to deal with a separate system with separate rules.”
At least three federal lawsuits are challenging Mississippi’s “religious freedom” law. This week, U.S. District Judge Carlton Reeves refused to block enforcement of the law as litigation against it remains ongoing on the basis of no “imminent risk of injury.”
In Texas, at least one county clerk — Molly Criner of Irion County — has suggested she would deny marriage licenses to same-sex couples, although none has apparently sought a marriage license in her office.
Criner in the aftermath of the Obergefell ruling pledged to reject the decision — or even allow deputies in her office to issue marriage licenses to same-sex couples — comparing herself to those in Nazi Germany who refused to help the government hunt down Jewish people.
“This, of course, is something the voters of Texas have voted on and come to a different conclusion,” Criner said. “It’s something that our legislators have come to a different conclusion about. I was dismayed, of course, with the ruling, and do not believe that lines up with God’s law and God’s plan for us.”
On Wednesday, Criner told the Washington Blade she won’t “discuss marriage policy over the phone” when asked if she now would give a marriage license to a same-sex couple.
“But we can tell you that anybody who applies for a marriage license needs to come and bring ID and both parties need to show up, and then we’ll evaluate their qualifications at that time,” Criner said.
Asked by the Blade whether it’s still her position she would deny a marriage licenses to a same-sex couples, Criner replied, “We don’t discuss marriage policy over the phone.”
One state that previously had issues with issuing marriage licenses to same-sex couples, but now apparently has resolved them, is Kentucky.
Rowan County Clerk Kim Davis gained notoriety last year for refusing marriage licenses to same-sex couples, which led to a federal judge sentencing her to jail for three days for being in contempt of court. Although she agreed not to interfere with the issuing of marriage licenses, she removed her name from them and instead said they were issued “pursuant to federal court order.”
Another clerk, Casey County Casey Davis (no relation to Kim Davis,) had also pledged to defy the Supreme Court ruling and halted the distribution of marriage licenses to all couples in his office. In October, Davis at least partially relented, saying he would begin to distribute marriage licenses in his office, although not to same-sex couples.
But that seems to have changed. On Wednesday when the Blade reach out to Davis’ office over the phone, Jamie McGowan, who identified himself as a clerk who works with Davis, replied “yes” when asked if a same-sex couple would be eligible to receive a marriage license in that office.
Chris Hartmann, director of the Kentucky-based Fairness Campaign, said to his knowledge “there are no counties where marriage licenses are being denied” in his state.
In fact, Hartmann said LGBT advocates won a victory on marriage licenses with the support of Kim Davis and newly-elected Republican Gov. Matt Bevin.
“The Kentucky Senate proposed separate but equal marriage licenses — one for straight couples that said ‘Bride and Groom,’ and one for LGBTQ couples that said ‘Party 1 and Party 2,” Hartmann said. “After much debate, both Davis and Bevin endorsed our proposed single marriage license form that allows people to check a box to identify as ‘Bride,’ ‘Groom,’ or ‘Spouse.’ After an initial defeat, the measure passed both the House and Senate unanimously.”
Evan Wolfson, former president of the now closed Freedom to Marry, denied the pockets of marriage inequality in the country undermine the significance of the marriage decision.
“The fact that there is a sprinkling of acting out and posturing doesn’t take away from the victory, the momentum, and the fact that more than 1,000,000 gay people have now married in the U.S., with many more to come here and around the world,” Wolfson said. “And we keep working.”