- The Washington Times - Thursday, January 7, 2016

Alabama’s probate courts remained in conflict Thursday, as some judges ignored an order to stop issuing marriage licenses to same-sex couples, while other probate judges stopped issuing licenses to anyone.

Jefferson County Probate Judge Alan King and Montgomery County Probate Judge Steven Reed both told reporters their offices would continue to issue licenses to same-sex couples, despite a Jan. 6 administrative order from Alabama Supreme Court Chief Justice Roy Moore saying they should obey the state’s man-woman marriage laws until a new ruling came from the state court.

“We can’t pick and choose when we want to be part of the United States and when we want to be a republic unto ourselves,” Judge Reed told the Montgomery Advertiser, adding he viewed Chief Justice Moore‘s order as carrying “no legal weight.”

Judge King, referring to the June 26 Obergefell v. Hodges ruling, said his office “will continue to follow the U.S. Supreme Court order and issue marriage licenses to all individuals,” AL.com reported.

However, nine of the state’s 67 counties were not issuing marriage licenses to anyone, said DecaturDaily.com.

Mobile County Probate Judge Don Davis said in a notice on the court’s website that to comply with both Chief Justice Moore‘s order and a federal judge’s 2015 ruling in favor of gay marriage, “the court is not issuing marriage licenses to any applicants until further notice.”

Probate judges in Madison, Elmore and Washington counties were among those who told media they were also going to suspend their issuance of marriage licenses.

Chief Justice Moore‘s order said probate judges were to continue to uphold Alabama’s man-woman marriage laws until the Alabama Supreme Court issued a ruling on how its rulings were affected by the Obergefell ruling.

Obergefell said states could not withhold marriage licenses from same-sex couples because it violated the couples’ rights to equal protection and due process. Gay marriages have been happening throughout most of the country ever since.

Still, there has been resistance to the ruling, which was denounced as gravely flawed and even unconstitutional by the four dissenting Supreme Court justices.

Some 72 legal and academic scholars signed a statement from the American Principles Project that said the Obergefell ruling is illegitimate, unconstitutional and not settled law.

The statement further calls on “all federal and state officeholders to refuse or accept Obergefell as binding precedent for all but the specific plaintiffs in the case” and to “recognize the authority of states to define marriage.”

As such, Chief Justice Moore‘s order seeking to keep the status quo on traditional marriage in Alabama is principled and respectful of the law, said Princeton University law scholar Robert P. George, founder of American Principles Project, said in a statement.

He compared Chief Justice Moore‘s stance to those who stood against the Supreme Court’s infamous 1857 ruling in the Dred Scott case, in which the court said black people could not be citizens.

In both the Dred Scott and Obergefell cases, a majority of justices “sought to impose on the nation their particular views on a morally charged issue of public policy without the slightest warrant for doing so in the text, logic, structure or original understanding of the Constitution,” Mr. George wrote.

Chief Justice Moore‘s order “relies on the principle, recently reiterated by U.S. Supreme Court Justice Antonin Scalia among others, that a ruling of any court, including the Supreme Court, is directly binding on the parties to the suit, not on other actors uninvolved in the litigation,” Mr. George wrote.

Therefore, Chief Justice Moore‘s order “does not defy the rule of law, it defends it,” he said.

In his Jan. 6 order, Chief Justice Moore referenced federal court rulings that made that distinction — that Obergefell applied directly to the marriage laws in the four states in the case (Michigan, Ohio, Tennessee and Kentucky), but not necessarily to marriage laws in other states.

“Whether or not the Alabama Supreme Court will apply the reasoning” of those federal courts in its own deliberations “is yet to be determined,” Chief Justice Moore said in his order.

But until that decision, he wrote, the Alabama Supreme Court‘s previous orders are “in full force and effect,” and 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 Protection Act.”

The Southern Poverty Law Center denounced Chief Justice Moore‘s order and stepped up their calls for him to be removed from the bench.

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