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Same-sex rulings stop all marriages in parts of Alabama

Jay Reeves
Associated Press

Birmingham, Ala. — Alabama’s stand against same-sex marriage had seemed to be crumbling under federal court pressure, but it regained ground Wednesday after the state’s highest court ruled that its ban on issuing licenses to gays and lesbians remains legal, despite federal court decisions to the contrary.

The Alabama Supreme Court ordered county probate judges to uphold the state ban pending a final ruling by the U.S. Supreme Court, which hears arguments in April on whether gay couples nationwide have a fundamental right to marry and whether states can ban such unions.

Stuck between the state’s highest court and a series of federal rulings, many probate judges were at a loss. At least one office — in Mobile County, one of the state’s largest —quit issuing licenses altogether. “We regret having to take this action, but feel that it is necessary given the unprecedented circumstances that currently exist,” read that announcement.

And Montgomery County Probate Judge Steven Reed, one of the first Alabama judges to issue licenses to same-sex couples, said it gives him no choice but to turn gays and lesbians away in the state capital.

“As a named party in continuing litigation on this matter, I am bound by this order from the state’s highest court, whether I agree with it or not,” Reed said in a statement.

It was unclear what most other judges would do after the all-Republican court sided with a pair of conservative groups and ordered Alabama’s 68 probate judges to stop issuing marriage licenses to gay couples. The state justices said U.S. District Judge Callie Granade in Mobile, who ruled the ban unconstitutional, does not get the last word in Alabama.

Probate judges have been seeking guidance since then from the Association of County Commissions of Alabama, but the advisory group isn’t saying whether one court trumps another.

“There have been days that they have thrown up their hands and said, ‘somebody just tell me what to do,’ ” said the group’s executive director, Sonny Brasfield.

The state’s high court gave judges five days to respond if they believe they shouldn’t have to follow its decision, but that move carries political risks in the deeply conservative state. Alabama’s justices and probate judges must run for office after each term.

Meanwhile, the justices in Washington could be asked again to intervene, even before they decide the issue nationally. The nation’s highest court already declined to stay Granade’s order last month, despite strong dissents from Justices Clarence Thomas and Antonin Scalia.

Elmore County Probate Judge John Enslen, who had refused Granade’s order, applauded the justices on his Facebook page, saying he’s “saddened for my nation that the word ‘marriage’ has been hijacked by couples who cannot procreate.”

The 134-page decision by six of the nine Alabama justices did not explicitly invalidate the marriages of hundreds of same-sex couples in recent weeks, but described their licenses as “purported.”

The court’s most outspoken gay marriage opponent, Chief Justice Roy Moore, recused himself. It was Moore who had told probate judges to ignore Granade’s initial order.

Another justice agreed with some reservations, while only one, Justice Greg Shaw, dissented.

Shaw called it “unfortunate” that federal courts refused to delay gay marriage in the state pending a final U.S. Supreme Court ruling, but said the state Supreme Court is creating more confusion by “venturing into unchartered waters” outside its jurisdiction.

The Southern Baptist-affiliated Alabama Citizens Action Program and the Alabama Policy Institute, a conservative think tank, had asked for Tuesday’s ruling, “concerned about the family and the danger that same-sex marriage will have,” said Joe Godfrey, executive director of ACAP.

But an attorney for couples who sued said the state justices showed “callous disregard” for their rights.

“Even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history,” said Shannon Minter, legal director of the National Center for Lesbian Rights.

David Kennedy represented the couple whose case resulted in Granade’s ruling overturning Alabama’s gay-marriage ban. He said the U.S. Supreme Court already spoke on the Alabama case when it refused to block Granade’s decision.

“The Alabama Supreme Court has now demonstrated a willingness to defy and nullify a decision of the Supreme Court of the United States, the 11th Circuit Court of Appeals and the federal district court for the southern district of Alabama,” Kennedy said.

The Alabama court ruled that state’s ban isn’t discriminatory, because it bans both men and women from marrying people of the same sex. It said the ban is rational, because it recognizes and encourages ties “between children and their biological parents,” and dismissed the argument that anyone in love should be able to wed, saying that if so, polygamy would be legal.

After Granade insisted that judges should begin issuing gays and lesbians licenses last month, about 50 of the state’s 67 counties were acknowledging that Alabama had become the 37th U.S. state where gays can legally wed, according to the Human Rights Campaign, which tracks gay rights.

But Tuesday’s state high court decision seems to have rebuilt the barrier.

“It’s very frustrating. I had done made up my mind we were going to issue the licenses and I thought that was it,” said Probate Judge Leon Archer in rural Tallapoosa County, which also stopped issuing marriage licenses to gay couples Wednesday. “And I think that is going to be the ruling of the U.S. Supreme Court in June.”