- The Washington Times - Wednesday, January 6, 2016

Alabama probate judges were advised Wednesday that they must uphold state marriage law that recognizes only unions of a man and a woman, sparking outrage from gay rights advocates and applause from traditional values groups.

In his administrative order dated Wednesday, Alabama Supreme Court Chief Justice Roy Moore said that until the full state court has issued a ruling on how the U.S. Supreme Court’s ruling on same-sex marriage ruling affects Alabama, state probate judges are bound to honor the state’s marriage laws.

“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage remain in full force and effect,” Chief Justice Moore wrote.

The Human Rights Campaign quickly condemned the order, saying it was “shameful” and an “obstructionist” tactic in the face of the U.S. Supreme Court’s June 26 Obergefell ruling that marriage is the union of two people.

“Yet again, Chief Justice Roy Moore is flagrantly defying the rule of law and empowering those who wish to stand between same-sex couples and their constitutional right to marry the person they love,” said Sarah Warbelow, Human Rights Campaign legal director.

Susan Watson, director of the American Civil Liberties Union of Alabama, told The Associated Press that Chief Justice Moore’s order was “silly” and wouldn’t change the fact that most Alabama judges were issuing licenses to same-sex couples.

Phillip Jauregui, president of Judicial Action Group, which seeks judicial reform, disagreed, saying Chief Justice Moore’s order is “both courageous and very well-reasoned.”

“We need more federal and state officers like Chief Justice Moore who understand that the job of the federal judiciary is not to legislate from the bench, but rather to simply decide disputes between parties consistent with the text of the Constitution,” Mr. Jauregui said on the website of Eagle Forum of Alabama.

He added that opinions like Obergefell that seek to “set policy for all of America” are outside the constitutional power of the judiciary.

Chief Justice Moore noted in his four-page order that recent federal rulings raise questions about Obergefell’s reach into state domestic law. Federal courts agreed that it invalidated marriage laws in Michigan, Kentucky, Ohio and Tennessee, but not in Nebraska, Arkansas, South Dakota or Kansas.

In Alabama, there is “confusion and uncertainty” about marriage licenses. Some judges are issuing them to same-sex couples, some only to opposite-sex couples, and some not to any couples, Chief Justice Moore wrote.

He said that as administrative head of the state judicial system, he was authorized and empowered to bring order to the system, and his order must be obeyed by affected parties until further decision by the Alabama Supreme Court.

Barry W. Lynn, executive director of Americans United for Separation of Church and State, said Chief Justice Moore is a “dangerous demagogue” and that a federal trial court in Alabama has already ordered all Alabama probate judges to issue marriage licenses to same-sex couples.

However, Mat Staver, founder and chairman of Liberty Counsel, praised Chief Justice Moore for his order “reaffirming” marriage law in Alabama.

“The opinion of five lawyers on the U.S. Supreme Court regarding same-sex marriage is lawless and without legal or historical support,” Mr. Staver said.

The 5-4 Obergefell ruling, written by Justice Anthony M. Kennedy, said the high court must protect the “liberty” of all people, including the right to define and express themselves and make “intimate choices,” such as whom they want to marry. “The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them,” it said.

Chief Justice Moore’s order said the state’s man-woman marriage laws were based, in part, on an 1885 Supreme Court ruling that said marriage was “the union for life of one man and one woman in the holy estate of matrimony” and an 1870 Alabama Supreme Court ruling that said “the relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness.”

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

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