- The Washington Times - Monday, February 9, 2015

Alabama’s chief justice on Monday ordered state judges to defy a federal ruling that overturns the state’s voter-approved ban on gay marriage, even as pro-gay groups celebrated the failure of the Supreme Court to intervene as a signal the justices will decide in their favor in this summer’s highly anticipated decision.

Most of the state’s counties, with the backing of Alabama’s governor, refused or held off on issuing marriage licenses to same-sex couples.

“The U.S. district courts have no power or authority to redefine marriage,” said Alabama Supreme Court Chief Justice Roy S. Moore.

“A lot of states in this union have caved to such unlawful authority, and this is not one,” Chief Justice Moore told NBC News. “This is Alabama. We don’t give up the recognition that law has bounds.”

Susan Watson, executive director of the American Civil Liberties Union of Alabama, said any judges who cooperated with Chief Justice Moore were courting trouble.

“I would really think long and hard before defying a federal court order,” she said.

But Mat Staver, head of a conservative legal defense firm, applauded Chief Justice Moore, saying Alabama probate judges “are not bound by an opinion of a single federal judge.” Liberty Counsel will defend any probate judges that disregard the federal ruling, said Mr. Staver, founder and chairman of Liberty Counsel.

Still, confusion reigned amid the conflicting legal rulings as most of the state’s counties seemed to be backing Chief Justice Moore.

By one Alabama news outlet’s tally, out of 67 counties, just 10 were issuing marriage licenses to same-sex couples, with another five classified as “unknown.” The remaining 52 counties were declining to issue licenses, though some were taking marriage applications from same-sex couples but not immediately providing the license, as is customary.

And in a statement Monday, Alabama Gov. Robert Bentley said he would not take action against probate judges — who actually issue marriage licenses and are responsible to the state — who refused to grant licenses to same-sex couples.

The Republican governor said he was “disappointed that a single federal court judge disregarded the vote of the Alabama people to define marriage as between a man and a woman.”

Alabama’s wedding bell blues began Monday morning, when the U.S. Supreme Court issued its three-page order saying it would not intervene in the state’s gay marriage case, Searcy v. Strange.

In January, U.S. District Judge Callie Granade had ruled that the state’s man-woman marriage law was unconstitutional, and Cari Searcy and Kim McKeand, who married in California, had a right to have their marriage recognized in Alabama.

In their dissent to the decision not to delay the ruling, Justices Clarence Thomas and Antonin Scalia said Alabama’s application for a stay should have been granted out of respect for state’s rights, and especially since the high court will “review these important issues” by the end of the current term.

Denying the stay, they warned, “may well be seen as a signal of the Court’s intended resolution of that [gay marriage] question.”

“This is not the proper way to discharge our Article III responsibilities. And it is indecorous for this Court to pretend that it is,” Justices Thomas and Scalia wrote.

Tacitly agreeing with the court’s conservative justices, the Human Rights Campaign said Monday’s order indicated that nationwide gay marriage was an imminent fait accompli.

“By refusing to halt marriage licenses in Alabama, the Supreme Court has telegraphed that there is virtually zero risk that they will issue an anti-equality ruling this summer,” HRC Legal Director Sarah Warbelow said.

In its statement congratulating the same-sex couples marrying in Alabama, the Human Rights Campaign also advised couples in the remaining states where marriage is the union of a man and a woman — Texas, Louisiana, Mississippi, Georgia, Arkansas, Missouri, Nebraska, South Dakota, North Dakota, Tennessee, Kentucky, Ohio and Michigan — to “start your wedding plans now.”

But Chief Justice Moore already had said “not so fast” and put his state’s probate judges on the spot.

In an order Sunday, he said that “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 the Alabama Constitution.”

And state Attorney General Luther Strange agreed, saying Monday the Supreme Court’s decision in Searcy v. Strange was disappointing and likely to lead to “more confusion.”

At AL.com, staffers called all of Alabama’s counties on Monday and created a color-coded map with an explanation of the county policy. By the end of the day, only 10 counties were shaded green, meaning they issued marriage licenses to any couples regardless of gender.

But those Alabama counties that immediately issued licenses Monday included some of the state’s largest, such as Jefferson County, which includes Birmingham, and Montgomery County, the home-county namesake of the state capital.

“It’s about time,” said Shante Wolfe, 21. She and Tori Sisson of Tuskegee had camped out in a blue-and-white tent and became the first in the county given a license.

In Birmingham, one of the gay marriage licenses went to Dee and Laura Bush, who have been together for seven years and have five kids between them.

“It is great that we were able to be part of history,” said Dee Bush. After receiving her license, she and her partner walked outside to a park, where a minister was performing wedding ceremonies.

On Monday the Southern Poverty Law Center counterattacked against Chief Justice Moore, filing a judicial complaint against him as the group’s president, Richard Cohen, called him the “Ayatollah of Alabama.”

Chief Justice Moore bristled at comparisons by the liberal press and the SPLC of the state’s stance Monday on marriage with its citing states’ rights a half-century ago in the name of segregation.

“This is not about the right of people to be recognized with race or creed or color. This is about same-sex marriage. It is not the same subject,” he told The Associated Press. “Eighty-one percent of the voters adopted the Alabama Sanctity of Marriage Amendment in the Alabama Constitution. I think they want leaders that will stand up against an unlawful intrusion of their sovereignty, and that’s what we’re seeing.”

The National Organization for Marriage, which opposes same-sex marriage, said Monday that it has scheduled its third “March for Marriage” for Washington on April 25.

That will be around the time the Supreme Court could be hearing arguments on Obergefell v. Hodges and its companion gay marriage cases.

On Monday Alabama became — at least, according to the federal courts — the 37th state to perform gay weddings. In most cases the decision was made by judicial fiat.

This article is based in part on wire service reports.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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