- The Washington Times - Monday, February 9, 2015

Wedding bell blues reigned in Alabama on Monday, as gay groups said — with the implicit agreement of Justices Clarence Thomas and Antonin Scalia — that the Supreme Court had signaled a decisive national victory for gay marriage this summer, even as the state’s own lawmakers refused to comply immediately with federal rulings.

Monday was supposed to have been the first day gay couples could legally wed in Alabama, as the U.S. Supreme Court declined, contrary to a blistering and unusual dissent by Justices Thomas and Scalia, to stay a lower federal court’s ruling ordering Alabama to become the 37th gay marriage state.

However, most of the state’s counties, with the backing of Alabama’s governor and the chief justice of its own supreme court, refused or held off on issuing marriage licenses to same-sex couples.

Alabama Supreme Court Chief Justice Roy S. Moore vowed defiance of federal power Monday and told his state judges they must continue to abide by the state constitution and its definition of marriage as the union of a man and a woman.

“The U.S. district courts have no power or authority to redefine marriage,” he told NBC News.

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

By one group’s tally, out of 67 Alabama counties, just 10 were issuing marriage licenses to same-sex couples. Another five were “unknown” and the remaining 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.

In a statement Monday, Alabama Gov. Robert Bentley said he would not take action against probate judges — who actually provide marriage licenses and are directly responsible to the state — if they refused to issue them 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.”

Mr. Bentley also said he agreed with Justices Thomas and Scalia — who voted to uphold the stay on gay marriage in Alabama — saying federal courts have been taking a “cavalier attitude toward the States.”

The gay marriage saga started in the morning, when the 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.

The Supreme Court is expected to issue a ruling later this year on whether same-sex couples have a right to marry and whether states must recognize gay marriages from outside the state.

In their dissent on Monday, Justices Thomas and 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.

Monday’s refusal, according to Justice Thomas, “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.

The Human Rights Campaign (HRC) agreed, saying Monday’s order indicated a fait accompli for nationwide gay marriage starting this summer.

“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.

But even before Monday’s Supreme Court inaction, Chief Justice Moore said “not so fast” and put the 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.”

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.

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.

Alabama State Attorney General Luther Strange said 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 Monday and created a color-coded map with 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.

But in some Alabama counties, such as Jefferson, Birmingham and Montgomery, judges immediately issued marriage licenses to gay couples.

“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 a combined five children.

“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.

In its Monday statement, the Human Rights Campaign congratulated the same-sex couples marrying in Alabama and 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.”

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.

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

On Monday, Alabama, at least according to the federal courts, became 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.


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