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Alabama judge stakes out defiant stance against same-sex marriages Judicial defiance in Alabama: Same-sex marriages begin, but most counties refuse
(about 3 hours later)
MOBILE, Ala. — Amid legal showdowns and high-level defiance, Alabama was buffeted by feuds over same-sex marriage Monday after courts cleared the way but some judges resisted issuing licenses to gay and lesbian couples. MOBILE, Ala. — On the day that same-sex unions became legal in Alabama, local officials in dozens of counties on Monday defied a federal judge’s decision and refused to issue marriage licenses to gay couples, casting the state into judicial chaos.
The discord appeared to throw Alabama — for the moment at least — into a patchwork of rules. In defiance of the federal judiciary, a majority of the state’s counties were refusing Monday to provide marriage licenses either to gay couples or any couples, according to information from lawyers, advocacy groups and officials. Gay couples were able to get licenses in about a dozen places, including Birmingham, Huntsville and a few other counties where probate judges complied with the judge’s decision. The U.S. Supreme Court ruled early Monday that it would deny Alabama’s request to put the marriages on hold.
The opposition included either outright rejection of same-sex couples or simply closing up shop for the day — leaving some hopeful couples, including conventional ones, waiting in vain. But in the majority of counties, officials said they would refuse to license same-sex marriages or stop providing licenses altogether, confronting couples — gay and heterosexual — with locked doors and drawn windows.
Other probate judges, however, bowed to the federal ruling and cleared the way for same-sex couples to wed. Many of the state’s 68 probate judges mounted their resistance to the federal decision at the urging of the firebrand chief justice of the Alabama Supreme Court, Roy Moore. He is best known for refusing more than a decade ago to comply with a court order to remove a monument to the Ten Commandments from the state Supreme Court’s offices.
The uncertainty and upheavals follow a fast-moving chain of actions, capped by the refusal Monday of the U.S. Supreme Court to step in. The high court could have effectively frozen regulations in Alabama to temporarily block same-sex marriages. In Mobile, about 10 gay couples who had expected to be granted licenses first thing in the morning found the marriage license window closed indefinitely.
Instead, it let stand a federal court decision overturning the state’s ban on marriage for same-sex couples. “We’re disgusted with it, but we’re dealing with it,” said Jim Strawser, 51, who with his partner, John Humphrey, had mounted the successful legal challenge against Alabama’s ban on same-sex marriage.
[The full Supreme Court document] A federal judge in Mobile ruled in their case last month that Alabama must allow same-sex marriages, striking down its ban and setting the stage for it to become the 37th state, plus the District of Columbia, to permit such unions and the second in the Deep South. The U.S. Supreme Court is scheduled to hear arguments in April over whether there is a constitutional right for gay couples to marry nationwide.
Just hours before the Supreme Court’s decision, Alabama’s chief justice had already drawn up lines of resistance in a battle that, at its heart, pits states’ rights against federal rulings. Gay rights supporters likened the actions of Moore and the probate judges to those of Alabama leaders who in the 1960s defied orders to desegregate schools.
“History is repeating itself,” said Christine Hernandez, attorney for one of the couples who challenged Alabama’s gay marriage ban, referring to the state’s role in resisting the racial integration of schools. “History is repeating itself,” said Christine Hernandez, an attorney for one of the plaintiff couples in the case.
A letter late Sunday from Chief Justice Roy Moore advised probate judges — the county officials tasked with issuing marriage licenses — to follow state law rather than the ruling of a federal judge, who struck down Alabama’s ban on same-sex marriage. Some social conservatives cheered the actions of the defiant probate judges. Mat Staver, chief executive of Liberty Counsel, said the probate judges are not under the jurisdiction of the federal courts and therefore were not compelled to comply with the federal judge’s order to allow same-sex marriages.
Those who violate his order would face a reprimand by the governor, Moore wrote in his letter. “I think the probate judges acted appropriately,” said Staver, whose group is representing at least eight of the judges.
“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 a constitutional amendment and a state law banning same-sex unions, Moore wrote. Their actions show that pockets of deep resistance to gay marriage remain despite the gains made by advocates, who have seen support for their cause spike nationally. Backing for same-sex marriage in Alabama stood at 32 percent in 2012, a smaller proportion than all but two states, according to the Williams Institute, a think tank that studies gay issues.
It is unclear how many probate judges will continue to back the call for resistance. The conservative profile of Alabama perhaps made it even more notable that scores of couples were able to get licenses Monday.
At least a dozen counties — a mix of rural and urban — closed the door to same-sex marriage licenses on Monday, according to the Alabama Media Group. “It’s about time,” smiled Shante Wolfe, 21, as she left the courthouse in Montgomery with partner Tori Sisson. They had camped out in a blue-and-white tent to be the first in the county to receive a license.
In Mobile, the delay cast a pall over the crowd gathered in the lobby of the probate court. About 200 couples were able to get them in Huntsville, at least 100 in Jefferson County and large numbers in Montgomery County, said Amanda Snipes, campaign manager for Southerners for the Freedom to Marry.
“We’re disgusted with it, but we’re dealing with it,” said Jim Strawser, 51, who with his partner John Humphrey had mounted the successful challenge against Alabama’s ban on same-sex marriage. About 40 percent of the state’s population lives in counties that went forward with the same-sex unions, according to the Southern Poverty Law Center. Couples who ran into difficulties in their own counties were free to marry somewhere else in the state.
In the afternoon, attorneys for the plaintiffs asked a federal judge to hold Don Davis, the probate judge in Mobile County, in contempt for failing to open the marriage license window Monday. “It’s disappointing, but once again, many couples who wanted to get married today are getting married today,” Snipes said. “Although we’re not in a statewide resolution yet, that day will come.”
But later in the day, U.S. District Judge Callie V.S. Granade denied the motion for contempt against Davis, signaling instead that the plaintiffs should file a lawsuit against him. In Mobile, the decision by Probate Judge Don Davis not to open the marriage license windows incensed the dozens of gay couples and supporters who had gathered there in hopes of celebrating a milestone moment. For hours, lawyers met in backroom meetings with members of the probate judges’ staff.
The plaintiffs’ attorneys were planning to file for damages on behalf of at least six couples who were turned away from the office Monday morning. The lawyers initially had reassured the crowd that the windows would open. But as hours passed with no communication from Davis’s office, couples who had planned to tie the knot became disheartened.
Davis did not issue a statement or openly refuse to marry the gay couples. But Hernandez, one of the plaintiffs’ attorneys, said the probate judge’s decision to leave the windows closed was tantamount to a refusal. She compared it to the stand of George Wallace, who as Alabama governor during the desegregation struggle in 1963 personally blocked the doors of the previously all-white University of Alabama to prevent black students from entering. Kim and Regina Gebauer had come to Mobile rather than try the probate office in their home county of Baldwin, expecting a more welcoming environment, Kim Gebauer said. The two have been together for 22 years and had originally hoped to get a license Monday ahead of a beach wedding later in the month. But as they waited in the lobby of the probate court, the pair had decided instead to get married and “seal the deal” sooner rather than later. In the end, even that plan was thwarted.
“It’s no different than standing in the school door,” she said. “The only difference is Don Davis is not physically standing there but he is keeping the door shut.”
But Mat Staver, chairman of the Liberty Counsel, a public interest law firm representing some of the probate judges who are refusing to marry gay couples, said the comparison is not appropriate from a legal or moral standpoint. “This is a significant issue. It is a step that I think they should take,” he said.
His organization is representing at least eight probate judges, he said, though the number keeps growing. He argues that they are acting within their rights because the probate judges are not legally obligated to follow a federal judge’s ruling and they have not been specifically compelled to issue marriage licenses.
To the east in Baldwin County, which also held back licenses, Kim and Regina Gebauer of Daphne said they plan to wed as soon as they get a license.
“We will celebrate with our friends another time,” said Kim, 51.“We will celebrate with our friends another time,” said Kim, 51.
In some places, however, joyous couples celebrated Alabama joining 36 other states and the District of Columbia in allowing same-sex marriages. Attorneys for the challengers asked Monday that a federal judge find Davis in contempt for not opening the window, but that request was rejected. The lawyers have filed separate legal actions on behalf of at least six couples who were turned away Monday, seeking damages.
“It’s about time,” smiled Shante Wolfe, 21, as she left the courthouse in Montgomery with partner Tori Sisson. They had camped out in a blue and white tent to be the first in the county given a license. At least 12 counties denied licenses to same-sex couples, according to AL.com, an Alabama news site. More than 40 stopped issuing marriage licenses altogether Monday, though at least 20 of those were still accepting applications for marriage licenses. Nine counties agreed to marry everyone.
Legal challenges to the defiance were quickly in motion. A letter late Sunday from Moore, the chief justice, advised probate judges to follow state law and refuse to give licenses to gay couples. Those who violated his order would face a reprimand by the governor, Moore wrote.
Susan Watson, executive director of the American Civil Liberties Union of Alabama, told the Associated Press that the probate judges could risk lawsuits for refusing. “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 a constitutional amendment and a state law banning same-sex unions, he wrote.
“I would really think long and hard before defying a federal court order,” Watson said. Alabama Gov. Robert Bentley (R) said Monday that he will not punish probate judges in the state who do or do not issue marriage licenses.
And to further cloud the situation: the Alabama attorney general apparently moved to the sidelines, saying he cannot order the probate judges to act in unison. “This issue has created confusion with conflicting direction for Probate Judges in Alabama,” Bentley said in a statement. “Probate judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.”
Last month, a federal judge struck down a constitutional amendment and law that banned same-sex unions in Alabama. The judge put her ruling on hold until Monday, giving the U.S. Supreme Court time to intervene. Some legal scholars said the probate judges are unlikely to prevail and faulted Moore.
But the Supreme Court said it would not take up the Alabama case. Moore “may sincerely believe state law takes precedence over federal law,” Ronald Krotoszynski, a professor at the University of Alabama School of Law, said Monday. “And if that’s so, it’s unfortunate because it’s plainly wrong.”
Two dissenting justices complained about the court’s “indecorous” action, saying it seemed an attempt to decide the constitutional issue before the high court hears arguments later this term. The U.S. Supreme Court rejected Alabama’s request to stay the same-sex marriages until the justices rule later this year on whether there is a constitutional right to gay unions. Two justices, Clarence Thomas and Antonin Scalia, dissented, saying they would have granted the stay.
The court’s action in allowing the marriages to begin is in keeping with its recent actions, but at odds with its traditions, Justices Clarence Thomas and Antonin Scalia said in a dissent. The U.S. Supreme Court later this year will consider whether same-sex marriage bans violate the U.S. Constitution. “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question,” Thomas wrote.
[The justices’ dissenting opinion] Mark Berman and Brian Murphy in Washington and Robert Barnes in San Francisco contributed to this report.
In a statement, Alabama Gov. Robert Bentley 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 woman.”
He also backed the Supreme Court dissenters, saying that the ruling represents a “cavalier attitude” toward states.
This is not the first time that Moore, Alabama’s elected chief justice, has endorsed defying a federal judge’s order.
He is best known for refusing to remove a monument of the Ten Commandments from the state Supreme Court’s building in 2003 in defiance of a federal judge’s ruling. He was removed from office for his actions, but he was reelected to the post three years ago.
Gay rights groups were expecting a festive rather than confrontational atmosphere on Monday, with hundreds of couples likely to obtain marriage licenses.
In Birmingham, officiants will be on hand outside the courthouse to marry couples on the spot. A mass reception planned in Huntsville has drawn 800 RSVPs, said Amanda Snipes, campaign manager for Southerners for the Freedom to Marry.
“People are hungry for freedom and love and committed couples taking responsibility for each other, and they just want to come together and celebrate,” Snipes said.
Alabama’s request for a stay is different from the others.
The U.S. Court of Appeals for the 11th Circuit, which covers Florida, Alabama and Georgia, denied the stays even though the appeals court has not considered the merits of district judges’ decisions striking the bans in Florida and Alabama. When the Supreme Court agreed to let gay marriages proceed in Florida, it had not agreed to take the cases from other states and decide the constitutional questions.
Thomas said that in “respectfully” dissenting from the decision denying the stay, “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question.”
Barnes reported from San Francisco. Brian Murphy in Washington contributed to this report.