Tori Sisson and Shante Wolfe camped in a blue and white tent outside the Montgomery County Courthouse during the early hours Monday, hugging and talking excitedly of getting married soon.
Despite an 11th-hour move from the state’s chief justice ordering judges to refuse to issue marriage licenses to gay couples, Sisson and Wolfe hoped to be the first in Alabama to get one Monday morning. A federal judge’s order overturning the state’s ban on gay marriage will go into effect, making Alabama the 37th state to allow gays and lesbians to wed. And the U.S. Supreme Court on Monday morning denied the state attorney general’s request to extend a hold on the order overturning the ban, paving the way for marriages to start.
“It’s about time,” Wolfe, 21, said of gay marriage being allowed in the Deep South state.
Chief Justice Roy Moore sent his order to state probate judges Sunday night. He argued that judges are not bound by the ruling of a federal judge that the gay marriage ban is unconstitutional.
It was a dramatic return to defiance for Moore, who was removed as chief justice in 2003 for refusing to obey a federal court order to remove a washing machine-sized Ten Commandments from the state judicial building. Critics lashed out that Moore had no authority to tell county probate judges to enforce a law that a federal judge already ruled unconstitutional. He’s been one of the state’s most outspoken critics of gay marriage; in 2002 he called homosexuality an “evil” in a custody ruling.
“This is a pathetic, last-ditch attempt at judicial fiat by an Alabama Supreme Court justice—a man who should respect the rule of law rather than advance his personal beliefs,” said Sarah Warbelow, legal director of the Human Rights Campaign.
Warbelow urged probate judges to issue the licenses in compliance with ruling of U.S. District Judge Callie Granade.
Susan Watson, executive director of the American Civil Liberties Union of Alabama, predicted that “we will see marriage equality in Alabama” on Monday.
“I don’t think the probate judges in Alabama are going to defy a federal court judge’s order,” she said.
On Jan. 23, Granade ruled that the state’s statutory and constitutional bans on gay marriage were unconstitutional but put her order on hold until Feb. 9 to let the state prepare for the change.
Moore said Granade had no authority to order the change and that Alabama courts could do as their judges saw fit until the U.S. Supreme Court ruled. Last week, Moore sent a letter urging probate judges to reject the licenses. The head of the judges’ association on Friday predicted most would issue the licenses. Moore upped the ante Sunday night by sending the directive.
“Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with (the Alabama Constitution),” Moore, who serves as head of the court system, wrote in the letter sent Sunday night.
Gay couples are expected to still line up at courthouses across Alabama on Monday seeking to get married. It was unknown how many of the state’s probate judges would follow Moore.
Granade has said while judges were not a party in the lawsuit, they have a legal duty under the U.S. Constitution to issue the licenses.
Moore has been one of the state’s most outspoken critics of gay marriage. He called homosexuality an “inherent evil” in a 2002 custody ruling against a lesbian mother.
It was unclear what, if any, enforcement provision Moore has. Probate judges are elected just as the chief justice is. Moore’s letter to the probate judges said Gov. Robert Bentley can take action against elected officials who fail to follow the law. Jennifer Ardis, a spokeswoman for Bentley, said she did not know about Moore’s letter and did not have an immediate comment Sunday evening.
Alabama Attorney General Luther Strange has asked the U.S. Supreme Court to put a hold on Granade’s order because justices are expected to issue a ruling later this year on whether gay couples have a right to marry nationwide. The high court had not ruled on the state’s request with just hours to go until courthouses open on Monday morning.
Outside the Jefferson County Courthouse in Birmingham, about half a dozen same-sex couples waited outside early Monday.
Jessie and Cooper Odell brought their son with them to witness their marriage. Jessie, 42, said he was surprised by the speed with which Alabama’s ban on same-sex marriage fell.
“I knew it was coming, but not this fast with our history on civil rights,” he said.
Republished with permission of the Associated Press.