The thorny issue of marriage licenses for same-sex couples in Alabama, which appeared on the way to resolution after a recent roller-coaster ride through state and federal courts, is back on the state judicial calendar.
Two state groups that oppose same-sex marriage have petitioned Alabama’s Supreme Court to issue an emergency order to stop state probate judges from issuing marriage licenses to same-sex couples. In Alabama, it is the probate judges who issue marriage licenses.
Meanwhile, several probate judges have gone back to federal court asking Judge Callie V.S. Granade in Mobile to weigh in again on the issue. It was Granade who on Jan. 23 overturned the state’s ban on gay marriage.
Granade’s order went into effect on Feb. 9 after the U.S. Supreme Court refused to grant a stay.
A day before the U.S. Supreme court action, Alabama’s Chief Justice Roy Moore ordered the probate judges not to issue licenses to gay couples, prompting another round of litigation before Granade ordered a probate judge to issue licenses.
Granade's decision cleared the way for most of the probate judges in the state’s 67 counties to issue marriage licenses to same-sex couples, and hundreds of marriages have been performed.
But judges in an estimated 19 counties are still refusing to issue marriage licenses to same-sex couples, according to the Human Rights Campaign, an advocacy group for gay marriage. Eleven of those counties are not issuing licenses to heterosexual couples either while the issue is being resolved.
In the current case, the two anti-same-sex-marriage groups are seeking to have the whole issue put aside until the U.S. Supreme Court rules on gay marriage this term, Joe Godfrey, executive director of the Alabama Citizens Action Program, told the Los Angeles Times on Thursday. The second group involved is the Alabama Policy Council.
“Basically, the idea that a federal judge issues a ruling has caused a great deal of confusion and chaos for probate judges out there,” Godfrey said. “Some are doing marriage licenses, some are not and the probate judges don’t know who to listen to.
“We’re just asking the courts to put everything on hold until the U.S. Supreme Court rules,” he said.
Godfrey said his group is morally opposed to gay marriage. He described the petition as an unusual step, and if granted, it might stop some marriages for a while.
Several legal experts in Alabama said they do not think the state Supreme Court will step in and grant the request by the two groups.
“They have the power to issue an order,” said Randall Marshall, legal director of the ACLU of Alabama, “but it would be short-lived.” Federal Judge “Granade has made it very clear that neither the state constitution, or any court orders can override the U.S. Constitution.”
"Sure, it's possible" that the Alabama Supreme Court would rule in a different way than Granade, said Carl Tobias, Williams professor at the University of Richmond School of Law in Richmond, Va., who has closely followed the gay-marriage issue. But he said he doubted the state court will issue such an order.
The soonest a ruling is expected in the case is next week, Godfrey said.
Matthew Teague reported from Fairhope, Ala., and Muskal reported from Los Angeles
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