Chief Justice: Probate judges should refuse gay marriages licenses

Published 9:31 pm Wednesday, January 6, 2016

By Kim Chandler and Phillip LucasThe Associated Press

MONTGOMERY (AP) — Alabama Chief Justice Roy Moore on Wednesday said state probate judges remain under a court order to refuse marriage licenses to gay couples even though a US. Supreme Court decision effectively legalized same-sex marriage more than six months ago.

The outspoken chief justice, who previously tried to block gay marriage from coming to the Deep South state, issued an administrative order saying the Alabama Supreme Court never lifted a March directive to probate judges to refuse licenses to gay couples.

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“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Moore wrote.

The March order from the state Supreme Court came down at the request of conservative probate judges after a federal judge ruled the state’s gay-marriage ban illegal in January 2015. Months later, the U.S. Supreme Court in June issued a ruling that effectively legalized gay marriage nationwide.

The state court had asked for briefs on how to proceed after that ruling, but has not issued any follow-up orders. Moore said he was issuing his administrative order because there was “confusion” among probate judges on how to proceed.

Susan Watson, director of the ACLU of Alabama, said it was Moore who was creating confusion, but also predicted that his order would have little effect. Watson said the same judge who overturned Alabama gay’s marriage ban also issued an injunction against probate judges directing them not to enforce it.

Most judges in Alabama’s 67 counties are issuing marriage licenses to gay couples. Judges in nine counties have shut down license operations altogether to avoid doing so.

“This is a done deal. Get over it,” said Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature. Of Moore, Todd added, “He’ll be challenged and he’ll lose and he’ll cost the state a lot of money in the process.”

University of Alabama School of Law Professor Ronald Krotoszynski said it’s true as a technical matter the state supreme court has not dissolved the March injunction the U.S. Supreme Court plainly overruled it and federal courts would ruled against judges who refuse licenses.

“In light of this reality, ordering the state’s probate judges to refuse to issue marriage licenses to all couples who seek them constitutes an exercise in futility — at best, it sows chaos and confusion; at worst, it forces couples to bring federal court litigation in order to exercise a clearly-established federal constitutional right,” Krotoszynski said.

Moore was one of the state’s most outspoken opponents of gay marriage after the federal judge in January ruled that the state’s ban was illegal. He also won praise from some conservative groups for his position that states should continue to try to fight the U.S. Supreme Court over the issue.

His latest memo hinted at frustration that others had not joined his side, saying it was “yet to be determined” if the state court will apply the reasoning of judges that suggest the impact of the U.S. Supreme Court decision is up for debate.

However, Moore, who was once removed from judicial office for refusing to follow a federal judge’s order to remove a Ten Commandment’s monument from the state judicial building, stopped short of directly ordering judges to refuse the licenses. He wrote that he was not, “at liberty to provide any guidance to Alabama probate judges on the effect of (the Supreme Court ruling) on the existing orders of the Alabama Supreme Court.”

Washington County Probate Judge Nick Williams said the order has no impact on his county since he stopped issuing marriage certificates altogether in June, but he praised Moore.

“I respect our chief justice greatly, I think he’s a man of honor and I respect everything he does,” Williams said.

Montgomery County Probate Judge Steven Reed, one of the first probate judges to issue same-sex marriage licenses in the state, on Wednesday tweeted this statement:

“Judge Moore’s latest charade is just sad & pathetic. My office will ignore him & this.”