MONTGOMERY, Alabama — An Alabama probate judge is asking the state's Supreme Court for a way out of issuing marriage licenses to same-sex couples.
Elmore County Probate Judge John Enslen filed a petition Monday that says the federal government, not state offices, should issue marriage licenses to same-sex couples. The federal government is responsible for upholding and enforcing other laws created at the federal level and already issues licenses through numerous agencies, Enslen said in the petition.
The petition asks the court to order judges statewide not to issue same-sex marriage licenses or recognize licenses that Enslen says have been issued in contradiction to the Alabama Constitution.
"Born solely from a strained interpretation of the U.S. Constitution, the new same-sex marriage license is a child of the federal government, not the State of Alabama," Enslen wrote in the petition.
Enslen also asks that the Alabama Supreme Court declare it will only recognize same-sex marriage licenses if they have been issued by the federal government or by states that have their own gay marriage laws.
The petition is the second of its kind to be filed with the state's high court, said ACLU-Alabama Executive Director Susan Watson.
"They would really be hard pressed to come out and say that Alabama isn't bound by the Supreme Court decision," she said. "I think it's just typical Alabama mindset in that they don't want to do what the federal government tells them to do."
Elmore County, just north of Montgomery, is one of nine counties in the state that has stopped issuing marriage license altogether, Watson said.
Officials in Alabama counties that are no longer issuing marriage licenses are using a segregation-era state law to avoid licensing gay and lesbian couples. The law says probate courts "may" issue rather than "shall" issue marriage licenses.
"We're taking a strong look at that because the Supreme Court ruling stated that marriage was a fundamental right," Watson said. "So the fact that these judges are not issuing licenses to anyone is denying them their fundamental right to marry."