MONTGOMERY, Ala. — The probate judge of Mobile County is in a quandary when it comes to whether to issue marriage licenses to same-sex couples.
A federal judge in January told Mobile County Probate Judge Don Davis he could not refuse to issue the licenses on the basis of sexual orientation. But the Alabama Supreme Court issued an order late Tuesday telling him he could – and must – refuse.
The decision is the latest development in Alabama’s on-again, off-again legal saga regarding gay marriage.
In a 6-1 ruling, the state’s high court said Davis, along with all other probate judges in Alabama, is subject to a March 3 ruling that ordered them all to stop issuing the licenses.
To be safe, Davis is doing nothing. His probate court shut down marriage-license operations altogether rather than risk running afoul of either one court or the other.
“These matters are very complicated. … This court will not discriminate in any matter against any person,” said a statement on the court website. “We regret any inconvenience this action may cause Mobile County citizens.”
U.S. District Judge Callie Granade ruled on Jan. 23 that both Alabama’s constitutional and statutory bans on same-sex marriage were unconstitutional.
Granade last month specifically ordered Davis to issue licenses after four same-sex couples filed a legal challenge to their inability to marry in Mobile County. Most other counties also began issuing marriage licenses, although some did what Davis decided to do: They stopped issuing all marriage licenses.
The weddings that did proceed came to an abrupt halt last week when the state Supreme Court directed the judges to stop. The justices sided with two conservative groups who argued the state’s same-sex marriage ban remained the law of the state until the U.S. Supreme Court ruled on the issue.
State justices on Tuesday said Granade’s order to Davis only applied to the four couples who filed the legal challenge.
Davis has asked Granade to put her order to him on hold, citing his conflicting direction from the state justices.
Shannon Minter, legal director of the National Center for Lesbian Rights, called the state Supreme Court’s ruling “unfortunate” but said Granade has the ultimate authority to say what her order means when she answers Davis’ request for a stay.
“This is another temporary road bump by a state court that continues to overreach in its desire to keep Alabama’s discrimination against same-sex couples alive, but we remain as confident as ever that there is no turning back and that Alabama will continue to be a state where same-sex couples have the freedom to marry,” Minter said.
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