Thomas said in a dissenting opinion that the court’s Alabama order could be seen as a signal that the justices already have decided they will declare that gay and lesbian couples have a right to marry under the Constitution.
Thomas wrote that the court “looks the other way as yet another federal district judge casts aside state laws” and that “this acquiescence may well be seen as a signal of the court’s intended resolution of that question.”
“This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this court to pretend that it is,” Thomas added. The Article III reference is to the provision of the Constitution concerning the federal courts.
Alabama became the 37th state in which same-sex couples can marry, following U.S. District Judge Callie Granade’s ruling in January that struck down as unconstitutional the state’s statutory and constitutional bans on gay marriage.
Granade had put her order on hold until Monday to let the state prepare for the change, and State Attorney General Luther Strange had asked for the delay to be extended for at least a few months.
Probate judges in Alabama began issuing marriage licenses Monday to same-sex couples, some of whom had been lined up for hours.
“It’s about time,” said Shante Wolfe, 21, as she left the courthouse in Montgomery with wife Tori Sisson. They had camped out in a blue and white tent to be the first in the county given a license.
The Supreme Court often freezes lawsuits in place when they raise the same issue the court already has agreed to decide. Since October, the justices have repeatedly turned away state requests to keep same-sex marriages from taking place until appeals are resolved.
Alabama’s plea is the first since the court stepped into the issue last month.
Justice Antonin Scalia joined Thomas’ dissent.
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