Will gay marriage be legal in Alabama? It's up to Supreme Court now.

A federal appeals court Tuesday refused to block a ruling that the state's ban is unconstitutional, clearing the way for Alabama to become the next state to legalize same-sex unions. Also on Tuesday, the state attorney general asked the US Supreme Court to issue a hold.

Sharon Steinmann/AL.com/AP
Cari Searcy, left, and her wife, Kim McKeand, plaintiffs in the case that struck down Alabama's same-sex marriage ban, hold a news conference with their lawyers in front of the Mobile County Marriage License Office at Probate Court in Mobile. On Tuesday, the 11th Circuit Court of Appeals refused to block a federal judge's ruling that the state's ban on gay marriage is unconstitutional.

Alabama could become the 37th state to permit same-sex marriages, after a federal appeals court refused on Tuesday to block a judge’s ruling declaring  the state’s ban on gay marriage unconstitutional.

Alabama Attorney General Luther Strange has asked the US Supreme Court to intervene and issue a stay, preventing same-sex marriages in his state at least until the Supreme Court itself issues a final decision in four consolidated cases pending at the high court.

The justices have agreed to examine the cases from the Cincinnati-based Sixth US Circuit Court of Appeals. Oral argument is likely to take place in April with a decision expected by late June.

A lower court stay in Alabama is set to expire on Monday.

Despite the high court’s agreement to decide the same-sex marriage issue, lower courts continue to press forward with new decisions.

For example, the St. Louis-based Eighth US Circuit Court of Appeals agreed on Tuesday to take up three same-sex marriage decisions by federal judges in three different states.

The cases are from South Dakota, Arkansas, and Missouri. In all three cases, the judges declared same-sex marriage bans unconstitutional.

The appeals court said it would hear oral argument in the cases at the federal courthouse in Omaha, Nebraska, the week of May 11.

In the Alabama case, the 11th US Circuit Court of Appeals turned down Attorney General Strange’s request for a stay.

In December, the appeals court refused to issue a similar stay in a federal case in Florida. The Florida attorney general then asked the US Supreme Court to halt the decision pending the appeal, but the high court declined to block the decision. Same-sex marriages began in Florida last month.

In the Alabama case, the 11th Circuit, on its own, consolidated two cases from that state. Its decision applies to both cases.

One of the cases involves a lesbian couple, Cari Searcy and Kimberly McKeand, who were married in California in 2008 and want Alabama to recognize their marriage to help provide additional legal protections for the son they are raising together.

Because the state does not recognize the couple’s marriage, Ms. Searcy, the non-biological mother, is unable under Alabama law to adopt the boy.

The second case involves two gay men, James Strawser and John Humphrey, who wish to marry each other in Alabama. They sued to force the state to respect their right to marry.

In a statement, Strange said he was disappointed that the 11th Circuit declined to stay the decision.

“The confusion that has been created by the district court’s ruling could linger for months until the US Supreme Court resolves this issue once and for all,” he said. 

Last week, after US District Judge Callie Granade issued her ruling in one of the Alabama cases, the conservative Chief Justice of the Alabama Supreme Court, Roy Moore, denounced the action as “judicial tyranny.”

“Our state constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States,” Chief Justice Moore wrote in a letter to Gov. Robert Bentley.

Moore encouraged state judges to defy the federal decision and continue to uphold the state ban on same-sex marriage.

“As chief justice of the Alabama Supreme Court, I will continue to recognize the Alabama constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment,” he said. 

The following day, the Southern Poverty Law Center filed an ethics complaint against the chief justice for making improper comments on a pending issue and undermining public confidence in the integrity of the judiciary.

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