As of Monday morning, District Judge Callie V. S. Granade’s stay on marriage equality in Alabama has expired and, with the Supreme Court declining to issue its own stay, her ruling declaring the state’s ban on same-sex marriage unconstitutional is in effect. Same-sex couples are already lined up to marry at courthouses, but some may still be turned away by probate judges who refuse to abide the ruling.
Probate judges in various counties have indicated that they will in some way circumvent same-sex marriage licenses. For example, Marengo County Probate Judge Laurie Hall has said that her office will still make marriage licenses available, but she will no longer sign them for any couple. Pike County Probate Judge Wes Allen has similarly taken his office “out of the marriage licensing business altogether,” citing state law that indicates that judges “may” issue marriage licenses — but don’t have to. Clarke County Probate Judge Valerie Davis has taken the same step, while judges in Covington County and Washington County will continue to discriminate against same-sex couples per the unconstitutional state law.
If any judges were on the fence about whether to issue licenses, they may find a reason not to in the “administrative order” issued by Alabama Chief Justice Roy Moore last night. Moore, who has a history of bucking federal court orders, simply declared that probate judges do not have to abide the federal order.This may not, however, be the best legal advice. Though the Alabama Probate Judges Association originally found reason to avoid issuing marriage licenses to same-sex couples, two follow-up orders from Granade changed the scope of her original ruling. In a separate case about a couple seeking to marry in-state as opposed to just having their out-of-state marriage recognized, she issued an injunction that bound any state officer tasked with enforcing the state’s ban. She also issued a clarification of her original ruling and, borrowing a strategy from District Judge Robert Hinkle in Florida, pointed out that even if her injunction does not require probate judges to issue licenses, the Constitution does. Thus, any probate judge who continues to violate a same-sex couple’s constitutional rights could be held legally liable with a new complaint. This would not be the first time that Alabama probate judges have ignored a federal ruling about who they should issue licenses to. The ACLU has set up a hotline that same-sex couples can call if they are refused a license, while the anti-LGBT Liberty Counsel has already announced it will defend probate judges in such cases.
At least one county probate judge will not need assistance from the Liberty Counsel. Jefferson County Probate Judge Alan King is ready to issue licenses to all couples Monday morning, so same-sex couples will begin marrying in Alabama. Freedom to Marry has a thorough list of Alabama wedding officiants prepared to solemnize same-sex weddings.