WASHINGTON — The Alabama Supreme Court ordered probate judges throughout the state to stop issuing marriage licenses temporarily to same-sex couples.
A growing number of probate judges had begun issuing marriage licenses to same-sex couples ever since the U.S Supreme Court let a federal district court's rulings that the state's bans on such marriages are unconstitutional go into effect.
The Tuesday night order — to which only one justice of the state's high court dissented — is the result of an emergency request brought to the court by two conservative nonprofit organizations, the Alabama Policy Institute and the Alabama Citizens Action Program.
In addition to ordering all probate judges to halt the issuance of marriage licenses to same-sex couples temporarily, the Alabama Supreme Court directs any probate judges who wish to do so to file a response in the next five business days as to why they should not be bound by the Alabama Supreme Court's order.
Because there is no ruling from the U.S. Supreme Court on whether bans on same-sex couples' marriages are constitutional, the Alabama Supreme Court stated that it is free to reach its own conclusion about the constitutionality of Alabama's bans.
The Alabama Supreme Court then decided that the marriage ban in Alabama is constitutional.
Then, because the federal district court injunctions only apply to a couple officials, the Alabama Supreme Court ordered all probate judges who are not specifically covered by those injunctions to stop issuing licenses.
So, how did the Alabama Supreme Court get there?
In the opinion, the court states that the request from the conservative groups claims that "Alabama probate judges are flouting a duty imposed upon them by the [laws and amendment banning same-sex couples' marriages] and that we should direct the respondent probate judges to perform that duty."
The court then goes through the process by which same-sex couples began marrying in many counties in Alabama, concluding that "uncertainty has become the order of the day" and that "[c]onfusion reigns."
As such, the court held, "There is a need for immediate, uniform relief among all the probate judges of this State" — particularly given the "'magnitude and importance' of the issue."
The court then goes on to decide whether the groups can, in effect, stand in for the state in the action — called "public standing" — and concludes that they can.
"The final procedural issue we consider is whether the federal court's order prevents this Court from acting with respect to probate judges of this State who ... are not bound by the order of the federal district court in [the marriage case]," the court states. "The answer is no."
The Alabama Supreme Court goes on: "[S]tate courts may interpret the United States Constitution independently from, and even contrary to, federal courts."
Then, it did exactly that. "After careful consideration of the reasoning employed by the federal district court in [the marriage recognition case]," the court ruled, "we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law."
As such, the court concluded: "Alabama law allows for 'marriage' between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."
Elmore County Probate Judge John Enslen, originally named as a respondent to the matter, was "realigned" to join the proceeding with the conservative groups because he, essentially, agreed with the groups.
Mobile County Probate Judge Don Davis, because he was subject to the federal court's order, asked to be dismissed from this action. The Alabama Supreme Court asked Davis whether he is bound by the federal court order to grant licenses to all same-sex couples or just the named plaintiffs in the federal case. It was not immediately clear whether he is bound by the Alabama Supreme Court's temporary halt on same-sex couples' marriages.
The person answering the phone at the Mobile County Probate Office's marriage license division said on Wednesday afternoon that the marriage license office — which had been under a federal court order not to refuse marriage licenses to same-sex couples — is closed until further notice.
In other words, the office is not issuing marriage licenses to either same-sex or opposite-sex couples.
A message seeking additional information about the decision was left with a press officer.