The order by Judge Callie V. S. Granade of Federal District Court came after a brief hearing and prompted cheers and crying in the halls of the probate court here, where several couples obtained licenses and were married before the license office closed.
While Judge Granade had declared Alabama’s ban on same-sex marriage unconstitutional on Jan. 23, the chief justice of the Alabama Supreme Court, Roy S. Moore, insisted in his own order Sunday night that Judge Granade’s ruling did not apply to the state’s probate judges and directed them not to comply.
Erik Obermiller and David Roby received their marriage certificate from Jefferson County Court. In Alabama, seven out of 10 oppose same-sex marriage.
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Shanté Wolfe, left, and Tori Sisson waited on Monday in Montgomery, Ala., for their marriage license to be processed.
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Chief Justice Roy Moore of Alabama, who ordered defiance of a same-sex marriage ruling, once fought to keep a Ten Commandments marker in a judicial building.
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The ruling on Thursday was the first in this case with a probate judge as a defendant — Judge Don Davis of Mobile County — and was seen by lawyers for the gay couples who brought the case as a clear signal to probate judges around the state what their duties were.
“This judge knows what his job is and knows very clearly that it applies to him as a probate judge,” said Heather Fann, the lawyer for the four gay couples in court on Thursday. “I don’t know why any other probate judge in the state of Alabama would be any different than he is.”
In a relatively straightforward order, Judge Granade restated her finding that the state’s ban on same-sex marriage was unconstitutional and concluded that if the couples before her “take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that plaintiffs constitute same-sex couples.”
Judge Davis almost immediately began issuing licenses to same-sex couples, but it was unclear whether other probate judges would follow suit. As of noon on Thursday, judges in 23 Alabama counties were issuing licenses to all couples, in 18 counties to straight couples only and in 26 to no couples at all, according to a tally kept by the Human Rights Campaign, a gay rights group.
Since Sunday night, the probate judges in the state had found themselves in something of a bind. Same-sex marriages were expected to start this week, and neither the United States Court of Appeals for the 11th Circuit, in Atlanta, nor the Supreme Court had elected to prevent them from going forward. But on Sunday night, Chief Justice Moore ordered probate judges not to give licenses to same-sex couples.
The order was based on several grounds, including that Judge Granade’s ruling in January had no bearing on probate judges because they were not defendants.
Lawyers representing same-sex couples hoped that an order on Thursday, directed at a probate judge, would clear things up.
In a packed courtroom, Randall C. Marshall, legal director of the Alabama chapter of the American Civil Liberties Union, who was representing the couples, argued that Chief Justice Moore’s order was “a nullity” because orders of that kind had to come from the court as a whole and not simply the chief justice. He added that Judge Granade’s first ruling should have settled the matter, but that having Judge Davis as a defendant should bring the situation to an “urgent resolution.”
Michael Druhan, a lawyer representing Judge Davis, said his client had no preference in the matter, but simply wanted guidance. He compared the judge’s position to that of someone who had stepped on a land mine in Vietnam, saying he would be shot by a sniper if he stayed there and blown up if he moved.
“We are going to accept any valid order from the federal court,” Mr. Druhan said.
Several probate judges said after the ruling that they planned to consult their lawyers about how to proceed. Others, however, had heard enough.
Bill English, the probate judge in Lee County, had been declining to issue marriage licenses to same-sex couples this week. Reached by phone Thursday afternoon, he said he had read Judge Granade’s order and interpreted it as applying to him.
“We’ll begin issuing licenses tomorrow morning,” he said, adding that “a number” of same-sex couples had inquired about applying for a license this week.
Chief Justice Moore did not return messages seeking comment on Thursday. In past interviews and in his order Sunday, however, he has argued that lower federal court rulings are not binding on state courts.
I applaud that my Probate Judge, Bill English, of Lee County, AL after reading the Federal Judge's ruling today, decided to issue marriage...
Ronald Krotoszynski, a professor at the University of Alabama School of Law, said that Chief Justice Moore’s legal position had some merit, but that “it takes a kind of willful blindness to seriously make this argument.” He pointed out that the decision of the higher courts to refuse the stay requested by the State of Alabama showed how they would have most likely ruled had the case been appealed.
“There’s a technical argument that her order and her opinion are not binding on state court judges or state executive officers,” Professor Krotoszynski said of Judge Granade’s ruling, “but they would be binding before you can say ‘Jehoshaphat’ if someone named a state court official or state executive officer as a defendant in another suit.”
Lawyers for the plaintiffs said they would not hesitate to bring legal action in other counties if probate judges continued to deny licenses to same-sex couples.
How widespread that may be in rural counties where the probate courts keep limited hours will most likely not be known until Friday or even next week. But none of that mattered in Mobile, where, a little after 4 p.m., the weeklong vigil at the Probate Court became a party. Couples embraced, lawyers cheered and people began taking pictures with the court police officers whom they had gotten to know over the last few days.
First in line before the marriage license window were two of the plaintiffs, Robert Povilat, 60, and Milton Persinger, 47, both wearing boutonnieres and with tears in their eyes.
“This is what should have been done two days ago,” Mr. Povilat said.
“Four days ago,” Mr. Persinger corrected.
“Four days ago,” Mr. Povilat agreed. “I think this has been the longest waiting line for a marriage license.”
After getting their license, they went to the atrium of the Probate Court and were married on the spot by a pastor.
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