Federal judge: Same-sex marriage ruling binds Alabama

The federal judge who struck down Alabama's same-sex marriage bans Wednesday made it clear that probate judges issuing marriage licenses must do so for all couples.

U.S. District Judge Ginny Granade struck down the state's bans on same-sex marriage in January. She reaffirmed her decision in May. Responding to a motion filed by same-sex couples in the case, Granade wrote Wednesday that the rulings were in effect.

"By the language set forth in the order, the preliminary injunction is now in effect and binding on all members of the Defendant Class," Granade wrote in a brief one-page order.

Granade stayed the May order pending the outcome ofObergefellv. Hodges, the case that led the U.S. Supreme Court to strike down existing bans on same-sex marriage last week.

In a six-page brief filed with Granade earlier on Wednesday, attorneys for the couples said some probate judges were issuing licenses to opposite-sex couples, but not same-sex ones.

"Probate judges in a few counties are erroneously maintaining that the Court's May 21, 2015, Orderis stayedand that the preliminary injunction is not yet in effect," the brief said. "For example, Tuscaloosa County Probate Court Judge W. Hardy McCollum is currently issuing marriage licenses to opposite-sex couples but not to same-sex couples."

McCollum was not available for comment Wednesday morning. However, an intern in the Tuscaloosa County Probate Judge Office's marriage license division Wednesday confirmed that the office was only giving licenses to opposite-sex couples.

A declaration from Jennifer Kenney, included with the plaintiffs' motion Wednesday, said she tried to get a marriage license with her partner from the Tuscaloosa Probate Judge last week. According to Kenney, the office told them would not issue licenses to same-sex couples until July 17.

Ayesha N. Khan, legal director of Americans United for Separation of Church and State, one of the groups representing the plaintiffs, said Wednesday they would seek to enforce Granade's decision.

"If any probate judges persist in violating it, we would seek a finding of contempt from the court, which would result in the imposition of fines for every day of noncompliance, an award of attorney's fees for litigating the motion, and any remedies the court deems appropriate," she said.

Khan said seven of the state's 67 counties, including Tuscaloosa, were excluding same-sex couples from marriage licenses.

Chief Justice Roy Moore in February ordered counties to not issue same-sex licenses, though most went ahead after Mobile County Probate Judge Don Davis was ordered to begin doing so several days after Granade's ruling went into effect.

The Alabama Supreme Court ordered a halt to same-sex marriage licenses in early March after two conservative groups sued to stop them. Granade wrote in her May 21 order that probate judges issuing marriage licenses must do so for all couples, regardless of "any injunction issued by the Alabama Supreme Court pertaining to same-sex marriage."

Montgomery County Probate Judge Steven Reed said last week he believed Granade's ruling was controlling, and repeated that in a statement Wednesday.

"While Judge Moore feels compelled to pick and choose which Supreme Court decisions he will abide by, I do not," the statement said. "Montgomery County will abide by the ruling of the United States Supreme Court and will issue marriage licenses to all citizens on a just and equal basis."

Reached by phone, Elmore County Probate Judge John Enslen said he was "still undecided" on the issue before hanging up. Autauga County Probate Judge Alfred Booth was not available Wednesday afternoon.

The state Supreme Court asked for briefs from all the parties this week on how the U.S. Supreme Court decision affected the status of the case before the Alabama justices. The request noted that the nation's high court had 25 days to schedule a rehearing ofObergefell.

Marion County Probate Judge Rocky Ridings' office was accepting applications for same-sex marriage licenses Wednesday afternoon but not issuing them. The office, one of the sevenhold-outs, was issuing licenses for opposite-sex couples. Ridings said in an interview Wednesday afternoon he had not seen Granade'sorder,but said he would defer to the state Supreme Court.

"We still have states' rights to some extent and they're our boss, and I'm going to do what they say," he said.

Alabama law does not require probate judges to issue marriage licenses. Some probate judges have stopped issuing themaltogether. Shannon Minter, an attorney with the National Center for Lesbian Rights, which represented plaintiffs in the case, said Wednesday they were "not to too concerned with thosecounties."

"We're confident that is not going to be a long-term position," he said. "We think there is going to be public pressure to get marriage licenses where they live. That will result in a turnaround in those offices eventually."