Judge Roy Moore halts issuance of same-sex marriage licenses in Alabama, again

by Gregory Tomlin |

(REUTERS/Marvin Gentry)A same-sex marriage supporter holds a sign referring to Alabama's Supreme Court Chief Justice Roy Moore, during a protest outside the Jefferson County Courthouse in Birmingham, Alabama, February 9, 2015. A U.S. district judge had just struck down the state's ban on same-sex marriage. Moore, however, told probate judges not to obey the order, setting up a fight between the state and the federal government. Now, Moore has again ordered probate judges to cease issuing marriage licenses to gay couples, in spite of the U.S. Supreme Court ruling in Obergefell v. Hodges, which created the right to same-sex marriage nationwide. Moore contends the ruling only applied to the four states mentioned in the case.

MONTGOMERY, Ala. (Christian Examiner) – Roy Moore, chief justice of Alabama's Supreme Court, has issued an order to his state's probate judges instructing them to halt the issuance of marriage licenses to same-sex couples until conflicts over "existing orders" from the Alabama Supreme Court can be resolved and the ruling in Obergefell v. Hodges clarified.

In June, the U.S. Supreme Court ruled that state laws and constitutional amendments in Kentucky, Michigan, Tennessee and Ohio which declared marriage to be only a union between one man and one woman were unconstitutional – an action most interpreted as creating the right to same-sex marriage nationwide.

Moore, however, had noted in his order that the Alabama Supreme Court had upheld the state's ban on same-sex marriage in March 2015, and because Obergefell v. Hodges only addressed the right to same-sex marriage in four states, other states' same-sex marriage laws – including his state's laws – remain unaffected and intact.

"Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the 'existing orders,'" Moore wrote in his four-page order.

Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.
- Alabama Supreme Court Chief Justice Roy Moore

"Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State."

Moore said in the order that he could not individually invalidate the order of Alabama's Supreme Court, nor could he decide if the decision of the U.S. Supreme Court should be applied to his state instead of another ruling from the Eighth Circuit, which claimed in a ruling post-Obergefell that the high court's decision affected no other states but those mentioned in the case.

"Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect," Moore wrote.

The Freedom from Religion Foundation blasted Moore's decision as an attempt to impose his religious opinions on his state's probate judges. FFRF Co-President Annie Laurie Gaylor said in a statement the U.S. Supreme Court's decision applied to "LGBT citizens in Alabama and every state."

Alabama Supreme Court Chief Justice Roy Moore

Gaylor said Moore was being a "sore loser" and any confusion in play in the Alabama courts has been caused "by [Moore] ordering his subordinates to violate a Supreme Court ruling and the supremacy clause of the U.S. Constitution. His religion has blinded him to his constitutional duty."

"Every day that consenting, loving couples are delayed their marriage licenses is a violation of their basic human rights in the name of Moore's tyrannical god. It's time for Alabama once again to rid itself of Moore's theocratic influence," Gaylor said in the statement. Moore was removed as chief justice in 2003 for defying a U.S. Supreme Court order to remove a display of the Ten Commandments from the state's Supreme Court building.

He was re-elected in 2012.

However, in this case, not everyone – even liberal voices – disagree with Moore's belief that the Obergefell ruling did not apply to Alabama. However, as one commentator put it, Moore chose not to extend that ruling to Alabama "in a common-sense way." Instead, he chose "to restrict them in a nonsensical one."

Moore insists that he is not actively defying the U.S. Supreme Court, but offering the probate judges legal protection from prosecution over the issue of same-sex marriage until the "confusion" can be resolved. Most of the probate judges abided by Moore's order on Wednesday, but by Thursday many had begun to resume the issuing of marriage licenses to same-sex couples.

This is not the first time Moore has opposed a federal court ruling. In January 2015, a U.S. district judge ruled that Alabama's ban on same-sex marriage was unconstitutional. The next month, Moore ordered probate judges to ignore the decision. That set up the Alabama Supreme Court's ruling in March 2015, upholding the state's laws. However, District Judge Ginny Granade reaffirmed her ruling then and after the Supreme Court's Obergefell decision.

Public response to Moore's decision has been overwhelmingly positive on Facebook. However, a page marked as "Dump Roy Moore" has also appeared as Moore has continued his fight against same-sex marriage. That page has a little more than 1,500 followers.