MONTGOMERY, Ala.–– Two conservative groups that sued to stop same-sex weddings earlier this year have urged the Alabama Supreme Court to resist the U.S Supreme Court’s landmark decision that gay and lesbian people have a fundamental right to marry.
In a court filing, the Alabama Policy Institute and the Alabama Citizens Action Program urged justices to resist the gay marriage ruling the same way courts in other states resisted pro-slavery laws in the 1850s, saying there is “precedent for the highest court of a state to reject a U.S. Supreme Court mandate which is unlawful.”
Lawyers cited the Wisconsin Supreme Court’s refusal to submit to the Fugitive Slave Act of 1850, which required that runaway slaves be returned to their former owners.
“To this day, the Wisconsin Supreme Court celebrates its adherence to the U.S. Constitution in openly defying an unlawful federal statute and an unlawful U.S. Supreme Court mandate,” lawyers for the groups wrote.
However, some probate judges told the state justices that the issue was settled by the U.S. Supreme Court and the state should respect that decision.
The Alabama Supreme Court, which in March directed probate judges to stop issuing marriage licenses to gay couples, has asked for briefs on what to do about that order in the face of the June 26 U.S Supreme Court decision overturning state bans on same-sex marriage.
A lawyer for Montgomery County Probate Judge Steven Reed said the court should vacate its previous orders in the face of the federal decision.
“Such action by this court would demonstrate that Alabama’s Judiciary understands and honors the rule of law,” a lawyer for Reed wrote.
The Alabama Policy Institute and the Alabama Citizens Action Program did not recommend what the court should do to resist the gay marriage decision.
At a minimum, the groups urged the Alabama justices to try to protect probate judges and their employees who don’t want to issue the licenses on religious grounds.
“To require those individuals to participate in the solemnization and celebration of same-sex marriage is repugnant and antithetical to their religious convictions and conscience,” lawyers wrote.
Most Alabama probate judges are issuing, or willing to issue, the licenses to gay couples.
However, about 13 counties have closed marriage license operations altogether as judges cite a provision of state laws that makes the issuance of marriage licenses an optional duty instead of a mandatory one.
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