MONTGOMERY, Ala. (AP) – Gay marriage inched closer to being a reality in Alabama as a federal judge on Wednesday said probate judges have a constitutional duty to issue marriage licenses to same-sex couples.
U.S. District Judge Callie Granade issued an order clarifying her original opinion that overturned the state’s gay marriage ban. She indicated that she believed probate judges should grant the licenses when a hold on her order expires next month. The clarification order caused the Alabama Probate Judges Association to reverse course and release a statement that same-sex couples can apply for marriage licenses if a stay is lifted.
The issue of what happens next is now squarely before the 11th U.S. Circuit Court of Appeals. Alabama Attorney General Luther Strange has asked the appellate court to keep Granade’s order on hold until the U.S. Supreme Court takes up the issue of marriage later this year. Granade’s ruling, if it stands, would make Alabama the 37th state where gay marriage is permitted.
While Granade said probate judges have a legal duty to issue the licenses, Alabama Chief Justice Roy Moore argued that they have a legal duty not to do so. A legal group that helped oust Moore a decade ago said Moore should be removed from office again for those comments.
Moore called Granade’s ruling “an infringement upon the definition of marriage.” The chief justice said he will issue a letter to probate judges before Granade’s stay ends Feb. 9, and it will say that rulings by federal district judges don’t control what Alabama courts do.
The Southern Poverty Law Center filed a complaint with Alabama’s Judicial Inquiry Commission saying Moore violated the state’s rules of conduct for Alabama judges.
Cohen said that violates Alabama’s rule against judges commenting on pending cases or cases that might come before them and a rule against judges undermining public confidence in the judiciary.
The Montgomery-based law center filed a complaint against Moore in 2003 over his defiance of a federal judge’s order to remove his Ten Commandments monument from the lobby of the state judicial building. That complaint led to a state court for judges removing Moore from office for violating Alabama’s rules of conduct for judges.
“We hope the result is the same this time,” law center President Richard Cohen said Wednesday. The SPLC is providing legal counsel in a separate lawsuit challenging the state’s marriage ban.
Moore, who was re-elected chief justice in 2012, said, his remarks weren’t meant to spark a confrontation, but were meant to explain his position as chief administrator of Alabama’s courts, including probate courts that issue marriage licenses.
“I will defend this state and the integrity of our courts against an unlawful and intrusive order of a federal judge,” he said in an interview.
Granade stopped short of directly ordering Alabama probate judges, who were not a party in the case, to grant the licenses, but suggested they would run afoul of the U.S. Constitution if they didn’t.
She issued the clarification order after the Probate Judges’ Association said Saturday that her initial ruling Friday didn’t apply to them.
Granade quoted a judge’s order in Florida after clerks there argued a ruling striking down that state’s marriage law didn’t require every county to give licenses to gay couples. U.S. District Judge Robert Hinkle said while his ruling didn’t directly order the clerks to issue the licenses to gay couples, the “Constitution requires the clerk to issue such licenses.” The probate judges group, after reading the clarification order, now believes the ruling does apply to probate judges. The group’s president said no marriage licenses would be issued to gay couples while the stay remains.
“However, on the occasion that the stay is lifted, same sex couples may apply for marriage licenses.” Monroe County Probate Judge Greg Norris said. Norris is the association’s president.
Norris said the group has been in contact with the Department of Health to discuss potential changes to marriage license forms.