Updated: 11:45 p.m. CST
MONTGOMERY, Ala. — Alabama appeared set within hours to become the 37th state where gays can legally wed, prompting one couple to pitch a tent outside a courthouse even as the state’s chief justice made an 11th hour bid to keep the weddings on hold Monday.
Alabama Chief Justice Roy Moore sent a letter Sunday evening to probate judges ordering them to refuse to issue same-sex marriage licenses when the courts opened Monday morning. Moore wrote that the judges weren’t bound by a federal judge’s ruling Jan. 23 that the marriage ban was unconstitutional.
“Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with (the Alabama Constitution),” Moore wrote.
Susan Watson, executive director The American Civil Liberties Union of Alabama, called the move by the conservative chief justice “grandstanding” and predicted licenses would be issued shortly.
“We will see marriage equality in Alabama tomorrow. I don’t think the probate judges in Alabama are going to defy a federal court judge’s order,” Watson said late Sunday.
U.S. District Judge Callie Granade had ruled that the state marriage ban was unconstitutional and – in a later clarifying order – said that probate judges have a legal duty under the U.S. Constitution to issue the licenses.
The chief justice, Moore, has been one of the state’s most outspoken critics of gay marriage. He called homosexuality an “evil” in a 2002 custody ruling and urged judges to reject issuing such licenses in recent days.
An attorney for plaintiffs Cari Searcy and Kim McKeand, the couple at the center of the ruling ending the ban, called Moore’s order a “George Wallace move,” adding that he cannot think of a more direct act of defiance off the federal government since the former governor’s famous stand in the schoolhouse door.
“I think it’s absolutely stunning that our state’s highest jurists would just advocate for ignoring a federal court order. Judge Granade’s order is law of the land. It’s not up for debate,” attorney David Kennedy said. “It’s alarming.”
Meanwhile, a few probate judges have said they would refuse to issue the licenses until they received greater clarity from the courts. Moore, as head of the court system, upped the ante Sunday night by sending the directive, although, it was unclear what enforcement provision he has.
Moore’s letter to the probate judges said Alabama Gov. Robert Bentley can take action against elected officials who fail to follow the law.