Three out of every four Alabama counties have defied federal law and refused to issue marriage licenses to same-sex couples despite an order Monday from the U.S. Supreme Court allowing same-sex marriages to move forward in the state.
Alabama became the 37th state to recognize marriage equality after a federal district court in January struck down as unconstitutional the state’s ban on same-sex marriages, but temporarily stayed enforcement of that order.
Attorneys for the state immediately appealed, and in February the 11th Circuit Court of Appeals refused to postpone the lower court ruling. The state then filed an emergency appeal with the U.S. Supreme Court, asking it to stay the lower court order, which was set to expire Monday, February 9, meaning same-sex marriages could then begin in Alabama.
The Roberts Court on Monday morning refused to intervene over the dissent of conservative Justices Clarence Thomas and Antonin Scalia, and same-sex couples immediately began to try and get marriage licenses in the state.
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But as the Supreme Court considered Alabama’s petition, Roy Moore, chief justice of the Alabama Supreme Court, issued an administrative order Sunday to all 68 probate judges in the state warning them that any judges who issued marriage licenses to same-sex couples would be in violation of Alabama law and face “action” by Alabama Gov. Robert Bentley.
Moore’s order did not clarify what kind of action those judges would face. The controversial Alabama chief justice said in an interview last week that the “institution of marriage that God ordained” is “under sustained attack from federal judges.”
“This is not against the law,” Moore said in response to a question about his defiance of federal court rulings. “This is for the law.”
Alabama Attorney General Luther Strange issued a public statement accusing the Roberts Court of fostering confusion by not staying the lower court order until it definitely rules on the constitutionality of marriage equality later this year. As to whether probate judges would face legal or disciplinary action for issuing marriage licenses to same-sex couples, as Moore’s administrative order stated, Strange said in a statement, “I advise probate judges to talk to their attorneys and associations about how to respond to the ruling.”
At least 51 of 67 counties refused to issue marriage licenses to same-sex couples on Monday, according to ABC News. Conservative legal advocacy organization Liberty Counsel announced it is representing some Alabama officials who refuse to comply with the federal order.
In Mobile, County Probate Judge Don Davis’s refusal to comply with the federal order and begin issuing marriage licenses to same-sex couples prompted one couple denied a license to file a federal lawsuit seeking to hold Davis in contempt. The lawsuit included an order compelling county officials to follow the law.
A ruling has not yet been issued in that case.