The Alabama Supreme Court on Monday issued an order delaying gay marriage for 25 days, although most Alabama counties have ignored the state order and continued to issue the same-sex marriage licenses.
John Carroll, a former federal judge and now a law professor at Cumberland School of Law in Birmingham, explained the reasoning behind the order and suggested those counties who ignore it are on safe ground.
"Did the Alabama Supreme Court have to do this? The answer is 'no,''' said Carroll. "Were they within their rights? I guess.
"But there is a period of time, by rule, before the decision is final."
While the U.S. Supreme Court landmark ruling Friday legalizing gay marriage has almost no chance of being changed, it is not technically the law of the land for 25 days after the ruling.
When the U.S. Supreme Court issues an order, there is a 25-day period for appeals before the court's "mandate" is issued to the appeals court that sent the case to the high court. That mandate establishes the opinion is now the law.
Citing that short window of appeal, the Alabama Supreme Court on Monday issued the order telling the state's probate judges not to issue marriage licenses to same-sex couples.
Meanwhile, some counties, such as Marshall, Franklin and Colbert, had stopped issuing all marriage licenses today. And just before the court order, the association of county commissioners issued a statement urging all county probate judges to issue same-sex marriages, per the ruling of the U.S. Supreme Court.
Friday, the same group had advised counties not to issue same-sex licenses.
It's too soon to tell what effect the state order will have or if it will be challenged, but the courthouse in Madison County continued on Monday to issue marriage licenses to couples, same-sex or not.
Madison County Probate Judge Tommy Ragland said he sent the Alabama Supreme Court order to the county attorney's office today and after it was reviewed, he was told there was nothing preventing the office from continuing to issue marriage licenses.
"We forwarded that to (county attorney) Jeff Rich," said Ragland. "He didn't' tell us to do anything different, and so we're issuing them."
A Birmingham attorney working to untangle the issue this afternoon said the state high court's order doesn't matter.
"The Alabama Supreme Court did not direct probate judges to delay compliance with the U.S. Supreme Court's decision," said Birmingham area attorney Heather Fann. "This order has no practical effect. U.S. District Court Judge (Ginny) Granade already ordered Alabama's probate judges to stop enforcing the marriage ban as soon as the Supreme Court rule, and that is binding immediately."
The Alabama Judiciary under the direction of Chief Justice Roy Moore have decided that the decision in Obergefell v. Hodges is merely an opinion but not the law of the land. Alabama is merely trying to stall the inevitable, but they are in actuality acting like spoiled brats. The probate judges are the only officials in Alabama who “may” issue marriage licenses. I put may in quotations because that is what Alabama's Constitution says. In fact, Alabama law says that probate judges "may" issue marriage licenses, and several Monday morning were using that one word to cease issuing licenses altogether. ALA CODE § 30-1-9 states:
No marriage shall be solemnized without a license. Marriage licenses may be issued by the judges of probate of the several counties. The license is an authority to anyone qualified to solemnize marriage to join together in matrimony the persons therein named.
If certain probate judges are basing this decision on the traditional heterosexual marriage then they have a bit of a problem. If tradition trumps the law, then tradition has it that Alabama probate judges issue marriage licenses. It's been that way for over 100 years, that is since the ratification of the 1901 Constitution of Alabama. However, these judges are not following Alabama legal precedent but their own interpretation of the Christian Bible. However, Alabama grants no fault divorces which is in direct violation of the words of Jesus who says divorce is only acceptable in the case of adultery. Alabama also allows for people to marry again after divorce. Jesus says that this is still adultery as long as the divorced spouse still lives. And where is this in the Bible?
But I say to you that everyone who divorces his wife, except on the ground of sexual immorality, makes her commit adultery, and whoever marries a divorced woman commits adultery. - Matthew 5:32
However, if you want the part about marriage it's in Matthew 19, where he addresses marriage and divorce (this happens to be where the “one woman, one man” argument comes from):
And Pharisees came up to him and tested him by asking, "Is it lawful to divorce one's wife for any cause?" He answered, "Have you not read that he who created them from the beginning made them male and female, and said, 'Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh'? So they are no longer two but one flesh. What therefore God has joined together, let not man separate." They said to him, "Why then did Moses command one to give a certificate of divorce and to send her away?" He said to them, "Because of your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so. And I say to you: whoever divorces his wife, except for sexual immorality, and marries another, commits adultery." - Matthew 19:3-9
The Bible should have great influence on our lives, but it is the Spirit of the Word that should guide our leaders. It is the center of all moral philosophy that we are equal and that we should love and respect one another. The probate judges of Alabama who are refusing to issue marriage licenses are not following the Spirit of the Word, but their own bigoted hatred for the LGBT community. A few are also trying to get a name for themselves to run for higher office. However, considering that our highest court has ruled, they should follow Romans 13:1-5:
Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God's servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God's wrath on the wrongdoer. Therefore one must be in subjection, not only to avoid God's wrath but also for the sake of conscience. - Romans 13:1-5
If Alabama officials refuse to do their job, or a significant part of it, then they should be dismissed. Each probate judge who refuses to follow the law, should be removed from office by the Chief Justice of the Alabama Supreme Court. The Chief Justice has the power to remove from office any probate judge who refuses to act (ALA CODE § 12-13-37). These judges are refusing to act in accordance with the law. They are doing this on several levels, since the Alabama Code - Section 12-13-36 states that the:
The probate judge shall keep his office at the courthouse, and, unless otherwise provided by a local law, the office of the probate judge shall be kept open for transaction of business on every day, except Sundays and legal holidays, from 9:00 A.M. until 4:00 P.M.
If you happen to live in Alabama, please let me know if your probate office is open on Saturday. My county’s probate office is only open four and a half days a week, as are most county courthouses in the area, this is in direct violation of Alabama Code - Section 12-13-36. So if a few probate judges want to split hairs with the law and use the word “may” to decide not to issue marriage licenses at all, an inconvenience to those in that county, then let's split hairs. All Alabama probate judges not “kept open for transaction of business on every day, except Sundays and legal holidays, from 9:00 A.M. until 4:00 P.M.” Should be removed from office by the Chief Justice of the Alabama Supreme Court pursuant to Alabama Code – Section 12-13-37. The greater problem is that the person who should be removing them from office is the Chief instigator of these shenanigans, Alabama Chief Justice Roy Moore. Therefore, the ACLU, Southern Poverty Law Center, Lambda Legal, and the Human Rights campaign should file complaints against Chief Justice Moore for failure to perform his duties and responsibilities pursuant to Alabama Code - Section 12-2-30.
It is time for the state of Alabama to comply with the law. I am tired of my state being made to play the part of the fool for the United States because our state’s elected officials are clowns who care more about posturing for cameras than for carrying out their duties as officers of the state. The people of Alabama need to wake the fuck up and start electing people who will follow the law not follow it only when it is convenient for them. Pay attention to who you vote for and if someone has been removed from office for misconduct once (Roy Moore) then for God's sake don't elect him to the same position again. If your legislators cannot pass a budget, their one sole fucking duty, then do not vote for them again. If your probate judge refuses to do his job, don't vote for him again. And if any official within the state refuses to carry out the duties of his or her office with dignity and respect for the law, call for them to either resign or be removed from their position. We cannot sit by and watch this happen, we must act and act now!
Needless to say, I'm a tad pissed off at my state.
Dear Lord, please let me get a job, preferably in another state, or better yet, maybe in another country whose officials have a modicum of sense. Amen.