Hours before Alabama was set to become the first state in the Deep South to legalize same-sex marriage, the state’s top justice Sunday night ordered local judges to ignore federal court orders to issue marriage licenses to same-sex couples.
It was not immediately clear what effect the order from Alabama Supreme Court Chief Justice Roy S. Moore might have – beyond tempting a constitutional showdown with federal courts who oversee the state, or a possible reprimand.
After a federal appeals court last week declined to impose a stay of a U.S. district judge’s January ruling striking down Alabama’s same-sex marriage ban as unconstitutional, conservative probate judges across the state had bristled in anticipation of Monday, when they were supposed to issue licenses to same-sex couples.
The order by Moore, a well-known conservative firebrand, marks the most drastic protest yet to a wave of federal rulings that have struck down such bans as unconstitutional over the last year.
Other states and conservative groups had sought to fight federal rulings by appealing to federal appellate courts and the U.S. Supreme Court, whose mandates take precedence over state law.
Moore’s order, however, argues that if the state issues marriage licenses to same-sex couples – before the U.S. Supreme Court makes a widely expected ruling on same-sex marriage months from now – the state’s argument in favor of a ban would be “mooted,” undermining the legal process.
To preserve legal harmony in the state, Moore said, he was ordering local judges to ignore the federal ruling.
“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” state laws banning same-sex marriage, Moore wrote in his administrative order.
If judges ignore his order, Moore wrote, it would be up to Alabama’s Republican Gov. Robert Bentley, a same-sex marriage opponent, “to ensure the execution of the law.”
Whether the governor follows the chief justice’s lead – and what the governor could do – is another matter. Jennifer Ardis, a spokeswoman for the governor, told the Montgomery Advertiser that Bentley’s office would have a comment on Moore’s letter Monday.
Left-leaning advocacy groups were outraged by Moore’s 11th-hour decision.
“He is the ayatollah of Alabama,” Richard Cohen, president of the Southern Poverty Law Center, said of Moore in a phone interview with the Los Angeles Times late Sunday. Cohen added: “I think it’s nothing short of amazing. He’s talking about how the federal court sowed confusion – he’s the source of confusion by doing all these crazy things. ... He’s much better suited to being the chief pastor of Alabama than he is being the chief justice of Alabama.”
The Human Rights Campaign, an advocacy group for LGBT rights, called Moore’s order “in clear violation of all codes of legal ethics, boundaries of jurisdiction and moral decency.”
“This is a pathetic, last-ditch attempt at judicial fiat by an Alabama Supreme Court justice – a man who should respect the rule of law rather than advance his personal beliefs,” Human Rights Campaign Legal Director Sarah Warbelow said in a statement late Sunday.
“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.”
On social media, LGBT rights advocates were circulating the phone number of the state American Civil Liberties Union branch in case couples encountered any problems trying to obtain marriage licenses on Monday.
“We will see marriage equality in Alabama tomorrow. I don’t think the probate judges in Alabama are going to defy a federal court judge’s order,” Susan Watson, executive director of the American Civil Liberties Union of Alabama, told the Associated Press. She called Moore’s move “grandstanding.”
Equality Alabama, another LGBT rights group, wrote on its Facebook page that it “encourages same-sex couples to move forward with plans to marry tomorrow in Alabama,” adding, “We are confident probate judges will be on the right side of history and move forward tomorrow and not defy a federal order.”
Moore has a controversial history. He came to prominence as an Etowah County judge in the 1990s when he refused to remove a 18-by-24-inch plaque of the Ten Commandments from his courtroom wall.
After riding conservative support to win a seat on the state Supreme Court – the justices are popularly elected in partisan contests – he had a 4-foot-tall, nearly 3-ton monument to the Ten Commandments installed in the high court’s rotunda in the middle of the night.
That prompted lawsuits from organizations including the American Civil Liberties Union and the Southern Poverty Law Center, which argued that the memorial improperly breached the legal separation between church and state.
A federal judge ordered Moore to have the monument removed, and the U.S. Supreme Court refused to hear his appeal. Moore’s associate justices on the state high court sided with the federal judge as well. Moore was removed from office two years later, in 2003.
But Moore, popular among Alabama conservatives for his Christian values and defiance of federal judges, won a six-year term in the 2012 election, defeating two Republican challengers.
In late January, Moore sent a letter to Alabama’s governor expressing doubts about “the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment.”
Citing federal court rulings around the country striking down same-sex marriage bans, Moore wrote, “We must act to oppose such tyranny!”
As a result, the Southern Poverty Law Center filed an ethics complaint with the Judicial Inquiry Commission of Alabama, calling Moore’s remarks improper.
The U.S. Supreme Court could potentially forestall confusion early Monday morning if it orders a stay of the federal district judge’s ruling striking down Alabama’s same-sex marriage ban. But that’s only if the Supreme Court decides to intervene.
“It’ll be interesting to see what happens in the morning,” Cohen, of the Southern Poverty Law Center, told The Times.
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Times staff writer Joseph Serna contributed to this report.