Weeks after a United States District Court judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state.
"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the order said. "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."
While same-sex marriage advocates chanted "love wins" outside Alabama courthouses last month, the Alabama Supreme Court said love has little to do with legal marriage in the state.
"This notion has broad public appeal and is, perhaps, the mantra most repeated in public discussions of this matter," the court wrote. "But although love may be an important factor in a lasting marriage, civil marriage has no public interest in whether the people seeking a marriage license love one another."
The order, called a writ of mandamus, had been requested by the Alabama Policy Institute and the Alabama Citizens Action Program last month.
In a statement after the ruling, lawyers from Liberty Counsel, which represented the plaintiffs, applauded the decision and blasted the federal judge who ruled in favor of same-sex marriages in Mobile.
"The ruling represents a significant shift of momentum in the same-sex marriage agenda, and is a direct challenge to the orders of U.S. District Court Judge Callie Granade, who in January purported to overturn Alabama's marriage laws," the firm said in a statement released Tuesday night. "The ruling of the Alabama Supreme Court offers the most forceful and clearly articulated rebuttal to date of the imaginative arguments for same-sex 'marriage' employed by federal courts."
Alabama Supreme Court Chief Justice Roy Moore has been a vocal opponent of same-sex marriage in the media in the last month. However, he is not listed among the concurring or dissenting judges and appears to have recused himself from the case.
The court seemed to chide Alabama Attorney General Luther Strange for not taking a more active role in enforcing state law.
"In the wake of the federal district court's orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may have been altered by the federal district court's decision," the court wrote.
The order gives probate judges five days to submit responses if they want to show cause why they should be able to grant marriage licenses to same-sex couples.
The order also gives Mobile County Probate Judge Don Davis until Thursday to argue why he should not be bound by the order. Davis has asked the court to dismiss him from the lawsuit because he had been ordered by the federal district court to issue licenses to same-sex couples.
Only Justice Greg Shaw dissented from the order, but he made clear that he did so because he thought the case had been filed incorrectly and the court did not yet have jurisdiction to hear it. In his dissent, Shaw argued that the federal court should have issued a stay against same-sex marriages until the U.S. Supreme Court had settled the matter.
"Such a drastic change in Alabama law warranted the granting of a stay," he wrote. "The lack of a stay has resulted in much unnecessary confusion and costly litigation. Because I do not believe the case before this Court is properly filed, I cannot, at this time, express my opinion as to whether the federal court's decision was correct."
David Kennedy, one of the lawyers who represented the Mobile couple who successfully challenged Alabama's same-sex marriage ban, said he does not think the ruling would survive a challenge in federal court.
"I don't really think that they can do that. I'm not surprised, but I'm somewhat appalled," he said. "The Supreme Court of the United States ruled that the stay (on the order striking down the gay marriage ban) would expire on Feb. 9. On Feb. 9, same-sex marriage effectively became legal in Alabama."
Kennedy said he does not anticipate taking action on behalf of any of the clients he represented in Mobile, because all of those couples have obtained marriage licenses.
"These people are married," he said. "There's nothing the Alabama Supreme Court can do to overturn that."
But Kennedy said he believes that probate judges act "at their own peril" if they choose to obey state courts instead of federal court. He said any couple denied a marriage license could sue in the federal district where they live.
He said the outcome should be clear.
"Whenever state law conflicts with federal law, federal law wins," he said.
"The state is going to take such a black eye on this," said University of Alabama Law Professor Ron Krotoszynski, Jr.. "I think it's going to play very badly in the national media," he said, citing shows like Bill Maher, John Oliver and The Daily Show with Jon Stewart.
"They're rejecting Judge Granade's reasoning lock stock and barrel," Krotoszynski said.
Granade's reasoning is in line with more than 60 federal district judges who have ruled on the same issue since the U.S. Supreme Court knocked down a port of the federal Defense of Marriage Act (or DOMA) in 2013, Krotoszynski said.
The next likely step is for one of the probate judges to file an emergency stay with the U.S. Supreme Court, Krotoszynski said. The situation could be "chaotic" between now and June when the U.S. Supreme Court is to rule on the issue anyway in a 6th Circuit case, he said.
Probate Judge Davis in Mobile could be in the worst position if the Alabama Supreme Court brings him under their order, which it appears they are inclined to do, Krotoszynski said. "He is between a rock and a hard place," he said.
The Human Rights campaign blasted the ruling, which it called meandering and bizarre.
"The Alabama state Supreme Court does not have the authority to interfere with a federal court order," said HRC Legal Director Sarah Warbelow. "This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling."
Reporters Brendan Kirby and Kent Faulk contributed to this story.
