One day after a federal judge’s order invalidating Alabama’s same-sex marriage ban took effect, an increasing number of probate judges on Tuesday were starting to issue marriage licenses to gays and lesbians. But others were turned away empty-handed.
On Monday, as many as 54 of the state’s 67 probate judges were declining to issue licenses. By Tuesday afternoon, the number of defiant judges had dropped to 41, according to the gay rights organization Human Rights Campaign.
The source of the defiance was an order by Alabama Supreme Court Chief Justice Roy Moore instructing probate judges to uphold Alabama law despite the federal ruling declaring the state’s ban on same-sex marriages unconstitutional.
The continued defiance came as a federal judge in Mobile set a hearing for Thursday afternoon to decide whether to order Mobile County Probate Judge Don Davis to start issuing licenses to same-sex couples.
Two of the lead plaintiffs in the federal lawsuit that brought down the Alabama marriage restrictions reside in Mobile County.
Ironically, while couples in other counties were able to immediately benefit from their lawsuit, James Strawser and his partner, John Humphrey, have been unable to obtain a marriage license in their home county.
Mr. Davis, the probate judge in Mobile County, announced on Monday that he was closing his office and would issue no marriage licenses to anyone until a higher authority clarified the state of the law.
“I remain committed to properly applying the law in all judicial and ministerial action of the Probate Court,” Davis said in a press release on Monday. “[B]ut we are dealing with unprecedented conflicts of law between the federal and state courts and I must be certain that any action I take is fully compliant with the law, both the United States Constitution, as well as the Constitution and statutes of the State of Alabama.”
Lawyers had earlier asked US District Judge Callie Granade to hold Davis in contempt for failing to issue marriage licenses. She denied the motion, but suggested that an action could be filed against Davis.
That’s what lawyers for the same-sex couples did. They asked Judge Granade to amend the underlying lawsuit filed by Mr. Strawser and Mr. Humphrey to include three other same-sex couples. All four couples had tried and failed to obtain marriage licenses from Davis.
They also asked that Davis be included as a defendant in the lawsuit.
The judge granted that motion on Tuesday.
The action is significant because now that Davis is a named defendant in the litigation, he falls within the jurisdiction of the federal judge. If Davis fails to obey an order of the court, he could be held in contempt.
Granade has asked the parties to present arguments to her on Thursday as to whether she should order Davis to issue marriage licenses to the four couples.
“Davis has stated that he will not issue marriage licenses to either same-sex or opposite-sex couples absent a further order of this court or the Alabama Supreme Court clarifying his obligations,” the couples’ motion said in part.
Shannon Minter, legal director of the National Center for Lesbian Rights, was involved in filing the amended complaint.
“We are pleased that Judge Granade has agreed with our request that the Mobile County probate judge be added to this case as a defendant,” he said in a statement. “In our view, the probate judge already should be issuing marriage licenses to same-sex couples given Judge Granade’s earlier ruling that the federal Constitution requires Alabama officials to treat same-sex couples equally.”
He added that there had been many court proceedings in recent weeks “and the steady trend of those decisions indicates that we are moving quickly toward full marriage equality in Alabama.”
The case is Strawser v. Strange and Davis (14cv424). It is filed in the Southern District of Alabama.