By Brian Lyman
Alabama Chief Justice Roy Moore Wednesday morning said probate judges have a "ministerial duty" to comply with state bans on same-sex marriage, despite a U.S. Supreme Court ruling in June striking down such restrictions.
Moore said in an interview Wednesday afternoon that he did not intend to defy the nation's highest court, but said that there were "conflicting orders" between the U.S. Supreme Court and the Alabama Supreme Court, which upheld the state's 1998 and 2006 bans on same-sex marriage last March, three months before the U.S. Supreme Court ruled similar bans unconstitutional in a case titled Obergefell v. Hodges. The Alabama court case came after U.S. District Judge Ginny Granade struck down the state's bans on same-sex marriage in January 2015, saying they violated same-sex couples equal protection and due process rights.
The case before the Alabama Supreme Court is still pending. Moore said the orders in that case forbidding same-sex marriage licenses remained in effect until the state's high court made a ruling.
"I did give an order that they were to follow the existing orders of the Alabama Supreme Court," he said in his chambers Wednesday afternoon. "That's simple, black letter law. The effect of Obergefell on those existing orders has to be determined by the Alabama Supreme Court."
The Chief Justice's order brought condemnation from groups supporting LGBT rights. In a statement, SPLC Senior Staff Attorney Scott McCoy said Moore's directive was "a dead letter."
"In no way does his administrative order supersede Judge Granade's federal injunction prohibiting probate judges from enforcing discriminatory Alabama marriage laws," the statement said. "If probate judges violate the injunction, they can be held in contempt. This is Moore yet again confusing his role as chief justice with his personal anti-LGBT agenda." SPLC said Wednesday evening it had added Moore's Wednesday order to its ongoing ethics complaint against the chief justice.
Rep. Patricia Todd, D-Birmingham, the director of the Alabama chapter of the Human Rights Campaign and the only openly gay member of the state Legislature, said probate judges who attempted to follow Moore's order could be in legal jeopardy.
"If they defy a Supreme Court decision, they will be found in contempt of a federal court order," she said. "If he wants to waste the taxpayers' money, go ahead, but we're not going backwards."
Local probate judges divided on the order. Elmore County Probate Judge John Enslen said Wednesday afternoon he stopped issuing all marriage licenses, adding that he "still had to get advice from my attorney" on how to proceed.
Montgomery County Probate Judge Steven Reed, however, criticized Moore's order, saying the U.S. Supreme Court's decision was final and that he would continue to issue same-sex marriage licenses to couples.
"We have a constitutional and a statutory duty to uphold the Constitution of the United States of America," Reed said. "We can't pick and choose when we want to be part of the United States and when we want to be a republic unto ourselves."
A message left for Autauga County Probate Judge Alfred Booth was not returned Wednesday.
Moore attempted to stop the issuance of same-sex marriage licenses before Granade's ruling went into effect in February. Shortly after, the Alabama Policy Institute (API) and the Alabama Citizens Action Program (ALCAP), both conservative groups, sued to block Granade's ruling in state court.
Eric Johnston, the groups' attorney, said Wednesday that he believed Moore's order was appropriate and that he believed it would address any confusion probate judges might have over the issue.
"Right now, probate judges don't need to be in limbo," he said. "They need to have some security."
Most, but not all Alabama probate judges are issuing same-sex marriage licenses, which Moore noted in his order.
"Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses," the order states. "This disparity affects the administration of justice in this state."
In its March ruling in that case, the Alabama Supreme Court held that it had the same right to interpret the U.S. Constitution as a federal district court. The Alabama Supreme Court then ruled that the state's bans on same-sex marriage did not violate gay and lesbian couples' equal protection and due process rights.
"Traditional-marriage laws do not discriminate based on gender: All men and all women are equally entitled to enter the institution of marriage," the justices wrote. "Only by redefining the term "marriage" to mean something it is not (and in the process assuming an answer as part of the question), can this statement be challenged. Put in the negative, traditional-marriage laws do not discriminate on the basis of gender because all men and all women are equally restricted to marriage between the opposite sexes."
Moore did not sit on the March case, though the opinion echoed many arguments he had made on the issue. On Wednesday said he would not comment on the merits of the Obergefell decision or the API case, saying he was only pointing out the process.
"(The Alabama Supreme Court) ruled prior to Obergefell, and Obergefell was not a precedent to that ruling," Moore said. "In that opinion, they issued a final injunction, a permanent order not to issue marriage licenses contradictory to the Sanctity of Marriage Amendment, and the Marriage Protection Act. That order is still in effect. It's still in effect according to the Alabama Supreme Court that asked the parties to address the effect of Obergefell of existing orders of the Supreme Court."
Moore said the validity of existing same-sex marriage licenses would have to be determined by the Alabama Supreme Court. Reed dismissed that, saying the order "carried no legal weight."
"This order means absolutely nothing," Reed said. "My six-year-old could draw on the back of this order. It means that much."
The March ruling halted the issuance of same-sex marriage licenses, which only resumed in Alabama after the Obergefell ruling. The office of Alabama Attorney General Luther Strange said in July that the Obergefell ruling was "binding" on the state.
Moore's order goes on to cite cases in Nebraska and Kansas where judges appeared to rule that the Obergefell ruling only applied to the state where the plaintiffs resided.
"The above cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court," Moore wrote.
Susan Watson, executive director of the Alabama American Civil Liberties Union, said that interpretation was "just not true." The ACLU in a press release noted that Granade issued an order last July saying Obergefell was in effect and binding, regardless of Alabama law.
"All the Alabama probate judges are under a federal court injunction to follow (and) to issue the marriage licenses," Watson said.
(c)2016 the Montgomery Advertiser (Montgomery, Ala.)