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Roy Moore's same-sex marriage order appears to have little effect

Brian Lyman, Brad Harper and Andrew Yawn
Montgomery Advertiser

Alabama Chief Justice Roy Moore's same-sex marriage order seems to be having little effect on the availability of marriage licenses.

The Advertiser spoke with probate judges or probate court personnel in 56 of the state’s 67 counties Thursday. In 41 counties, the offices said they were issuing marriage licenses to all couples. 13 said they were not.

Only three county probate courts – in Elmore, Marengo and Walker – said they stopped issuing licenses after Moore’s Wednesday order, which said probate judges had a “ministerial duty” to follow state bans on same-sex marriage, despite a U.S. Supreme Court ruling in June striking those restrictions down.

Attempts to reach Mobile County Probate Judge Don Davis were not immediately successful. A statement from Davis on the Mobile County Probate Court’s website said they stopped issuing marriage licenses due to Moore’s order.

But most probate judges said they believed the U.S. Supreme Court’s ruling in Obergefell v. Hodges in June took precedence.

“It was my understanding the order that was issued by the US Supreme Court back in June was binding,” said Sharon Michalic, Dale County Probate Judge. The county has stopped performing ceremonies but continued to issue marriage licenses.

That was also the view of Hale County Probate Judge Arthur Crawford and Chilton County Probate Judge Bobby Martin. “We’re following the Supreme Court order,” Crawford said.

Martin said they were issuing licenses to "whoever is walking in for a marriage license."

"The U.S. Supreme Court's ruling trumps a state ruling, just like an (Alabama) Supreme Court ruling in Montgomery trumps our order," he said.

Moore on Wednesday issued an order saying probate judges had a “ministerial duty” to uphold the state’s 1998 and 2006 bans on same-sex marriage, regardless of the U.S. Supreme Court’s ruling. The Chief Justice said an Alabama Supreme Court order from March banning same-sex marriage would not change until the state’s high court ruled in a case brought by two conservative groups opposed to same-sex marriage.

“That order is still in effect,” Moore told the Advertiser in an interview Wednesday. “It’s still in effect according to the Alabama Supreme Court that asked the parties to address the effect of Obergefell on existing orders of the Supreme Court."

Moore’s order also cited cases in Nebraska and Kansas which he said suggested that the Obergefell ruling only applied in the states where the plaintiffs resided. Groups supporting same-sex marriage reject that interpretation, and warn that judges who stop issuing same-sex marriage licenses could find themselves in contempt of a federal court order. Federal prosecutors in Birmingham and Mobile said in a statement Wednesday they had “grave concerns” with the order.

Alabama does not require probate offices to issue marriage licenses. Some stopped issuing them long before Moore's order Wednesday.

“If the U.S. Supreme Court is correct, we have no definition of marriage,” said Cleburne County Probate Judge Ryan Robertson, who stopped issuing marriage licenses last summer. “Everybody is in a state of confusion as far as I’m concerned.”

Those that stopped because of Moore's order said they were seeking advice from attorneys. “We’re not selling any marriage licenses to anybody until we receive more guidance,” said Angela Howard, chief clerk of the Walker County Probate Office.

Elmore County Probate Court Judge John Enslen said Wednesday he also wanted more guidance. Elmore stopped issuing marriage licenses after Moore’s order arrived. Autauga County has not issued marriage licenses in months. Montgomery County continues to issue marriage licenses to all couples.

Lowndes County declined to comment. Coosa County is currently not issuing marriage licenses due to technical problems. Attempts to reach the remaining counties were not immediately successful.

U.S. District Judge Ginny Granade struck down Alabama’s bans on same-sex marriage in January 2015. Moore attempted to stop the issuance of same-sex marriage licenses before Granade’s ruling went into effect. Granade reaffirmed her ruling in May, but stayed it before the Supreme Court’s ruling in Obergefell. The lawsuits in the Alabama cases often involved probate judges.

“We kind of feel like the ball in a tennis match, between the Alabama Supreme Court and the U.S. Supreme Court,” Henry County Probate Judge David Money said.

The Associated Press also contributed to this report.