Most judges in Alabama’s 67 counties are issuing marriage licenses to gay couples, although at least three Alabama counties suspended all marriage license operations Wednesday in response to Moore’s order. That is in addition to the judges in nine counties who had already shut down their operations following the U.S. Supreme Court decision.
One of those who took action Wednesday was Mobile County Probate Judge Don Davis, who said in a statement that he had closed the marriage license office to “ensure full compliance with all court rulings.”
Lawrence County Probate Judge Michael Praytor said he had asked the opinion of the county attorney, and would likely make a decision Thursday on how to proceed.
“I’m waiting on clarification,” Praytor said.
Patty Hanson, chief clerk of the Madison County Probate office, said officials there are also awaiting guidance from the county attorney.
“They could apply for them, but we would just hold them until the next day,” Hanson said.
Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature, said it is time for Moore to stop fighting the ruling of the U.S. Supreme Court.
“He’ll be challenged and he’ll lose and he’ll cost the state a lot of money in the process,” Todd said.
University of Alabama School of Law Professor Ronald Krotoszynski agreed.
He said that although it is technically true the state Supreme Court never withdrew its March injunction, “the U.S. Supreme Court plainly overruled it and federal courts would rule against judges who refuse licenses.”
“In light of this reality, ordering the state’s probate judges to refuse to issue marriage licenses to all couples who seek them constitutes an exercise in futility,” Krotoszynski said. “At best, it sows chaos and confusion; at worst, it forces couples to bring federal court litigation in order to exercise a clearly established federal constitutional right.”