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Alabama gay marriage ruling: legal, but not yet

On Thursday, a federal judge reaffirmed that same-sex couples have a constitutional right to marry, but issued a stay until the Supreme Court issues its decision, which is expected in June.

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    Amanda Keller holds a flag as she joins other gay marriage supporters in Linn Park, at the Jefferson County courthouse, Feb. 9, 2015, in Birmingham, Ala.
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Gay couples will be able to marry in Alabama, a federal judge ruled on Thursday – but not yet.

It’s the latest volley in a states’ rights versus federalism battle that has been playing out over the past several months.

State bans against gay marriage began falling in October as appeals court judges found them unconstitutional in a series of rulings, rapidly raising the number of states where same-sex couples can legally marry to 37. But one of those 37, Alabama, has come with an asterisk.

In March, the Alabama Supreme Court, led by Chief Justice Roy Moore, became the first state court in the nation to defy the federal judiciary on gay marriage, telling probate judges in a 148-page ruling that they could legally ignore a federal judge’s ruling pending a Supreme Court decision. The argument was, in essence, that only the US Supreme Court could tell Alabama judges what to do.

The judge, US District Judge Callie Granade, in January had issued a preliminary injunction blocking the state’s attorney general and the Mobile probate judge from enforcing Alabama’s law banning gay marriage. Some 500 couples across the state were able to marry before the state Supreme Court weighed in. On Thursday, she reaffirmed that same-sex couples have a constitutional right to marry and made clear that her ruling was to apply to all probate judges in the state – not just Mobile County.

Thursday’s ruling doesn’t change the status quo, since Judge Granade stayed all further action on the matter until the Supreme Court issues its decision on same-sex marriage, which is expected before the end of the current term in June. But the ruling was important in one respect, legal experts say, because it reaffirmed federal supremacy over state probate judges.

The ruling is significant because as soon as it goes into effect, "probate judges in every county of Alabama will be bound by a federal court order to comply with constitutional principles of fairness and equality," David Dinelli, deputy legal director for the Southern Poverty Law Center in Montgomery, Ala, writes in a statement issued after the ruling.

The Alabama gay marriage fight has agitated Southern conservatives, many of whom see Granade’s ruling as liberal judicial activism aimed at undermining states’ rights. Yet news of a US district judge again ordering Alabama judges to acknowledge the constitutional rights of gays and lesbians fueled building expectations of ultimate victory among Alabamians eager to marry their same-sex partners -- an idea that, just a few years ago, would have been heretical in many parts of Dixie.

Indeed, the legal points in play underscore changing public sentiments about what it means to be gay in the South, which is, broadly speaking, the country’s most conservative and religious region. More specifically, polls show evidence not just of growing empathy for gay Southerners even among older conservatives living in the Bible belt, but also provide a counterpoint to the Alabama Supreme Court's argument that the state has an obligation to impose religious morality on the public square.

A 2014 study from the Public Religion Research Institute “confirms that [rapidly growing support for gay marriage in the South] cannot be explained away as merely another example of federal judicial activism circumventing the will of the people in Southern states,” writes Robert Jones, the lead author of the study, in the Atlantic. “Rather, we are witnessing dramatic cultural transformations, which include changing minds even among culturally and religiously conservative Americans in the South.”

A generational shift in which Southern Millennials are far more likely to approve of gay marriage than their parents and grandparents is key to a rise in support for gay marriage to 48 percent overall in the South. In contrast, 37 percent of Southerners say only heterosexual intercourse is morally acceptable, suggesting to Mr. Jones that "support for the legality of same-sex marriage outpaces moral approval of same-gender sex by double-digit numbers." 

As she granted the gay plaintiffs’ an injunction on Thursday, Granade wrote that the probate judges in Alabama needn't worry about the morality and federalism arguments as they ponder whether to sign marriage certificates.

"It is true that if this Court grants the preliminary injunction the probate judges will be faced with complying with either Alabama's marriage laws that prohibit same-sex marriage as they have been directed by the Alabama Supreme Court or with complying with the United States Constitution as directed by this Court," Granade wrote. "However, the choice should be simple. Under the Supremacy Clause, the laws of the United States are 'the supreme Law of the Land.'"

Even though Granade ruled against the state supreme court’s challenge of federal judicial authority Thursday, Alabama Attorney General Luther Strange, through his office, called Granade’s order a victory for the state.

"We've said from the beginning that the US Supreme Court would have the final say in this matter," Mr. Strange's office said, in a statement. "Had Judge Granade heeded our request that she stay her order from the start we could have avoided a tremendous amount of chaos and confusion. The good news here is that Judge Granade has finally accepted our advice and issued a stay."

Gay marriage advocates saw the ruling differently.

"This is a victory for the LGBT community of Alabama," Susan Watson, executive director for the ACLU of Alabama, said in a statement. "We applaud the court for its ruling that puts an end to the chaos created by the Alabama Supreme Court. Today love is triumphant."

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