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February 20, 2015

Alabama at war with itself over marriage

Montgomery, Ala.--Alabama Supreme Court Chief Justice Roy Moore is again fighting the law, and is losing again.

Alabama became the 37th state where same-sex marriage was legal on February 9, after the 11th Circuit Court of Appeals and the United States Supreme Court refused to delay implementation of a ruling overturning the state’s ban on equal marriage.

Chief Justice Moore, however, tried to prevent that from happening, ordering probate court judges not to issue marriage licenses to same-sex couples on February 8, but the following morning, some judges were already issuing marriage licenses.

On February 12, Federal Judge Callie V.S. Granade ordered the probate judge of Mobile County to issue marriage licenses. Judge Don Davis was the first judge to be a defendant in a marriage case in the state. Granade had ruled on January 23 that the state’s marriage ban was unconstitutional.

Davis began issuing marriage licenses to same-sex couples almost immediately. As of noon on February 12, 23 counties were granting marriage licenses to all couple, 18 to opposite-sex couples only, and 26 stopped issuing marriage licenses altogether.

Moore’s order was predicated on the fact that Granade’s order did not name any probate court judges. He claimed that because of that, the ruling did not apply to probate judges in the state.

Davis’ attorney, Michael Druhan, said that Davis did not support or oppose giving out marriage licenses to same-sex couples, but wanted clear guidance, comparing him to a soldier in Vietnam who would be blown up by a landmine if he moved, but shot by a sniper if he did not.

One person who strongly supported Moore’s move was Brent Waller, the United Dixie White Knights’ imperial wizard. The group is the Mississippi chapter of the Ku Klux Klan.

“The Mississippi Klan salutes Alabama’s chief justice Roy Moore, for refusing to bow to the yoke of Federal tyranny,” he wrote on the largest White Supremacist message board. “The Feds have no authority over individual States marriage laws. The fudgepackers from Hollywood and all major news networks are in shock that the good people from the heart of Dixie are resisting their Imperialist, Communist Homosexual agenda!”

Moore claimed that federal courts had no authority over state courts’ interpretations of the United States Constitution. He also argued that neither the U.S. nor Alabama Supreme Courts had ruled on the state’s marriage ban.

Moore was removed from the bench in 2003, when he violated a federal judge’s order to remove a Ten Commandments statue from the Alabama Supreme Court building. He was reelected in 2012.

Florida International University law professor Howard Wasserman gave partial approval to Moore’s position. Unlike in other states, where judges or other officials who refused to grant marriage licenses to same-sex couples were named as defendants, the suit on which Granade ruled only named Alabama’s attorney general, who doesn’t actually grant marriage licenses. That created a jurisdictional mix-up that was not present in other states’ suits.

Justice Clarence Thomas’ dissent from the Supreme Court’s order denying a stay of the Alabama marriage ruling indicated that he and Justice Antonin Scalia suggested that the court is likely to rule in favor of same-sex marriage, having tacitly acquiesced as the number of states allowing same-sex marriage rose from 19 to 37.

The Supreme Court will hear appeals of four cases from the Sixth Circuit Court of Appeals, covering Ohio, Michigan, Tennessee and Kentucky. The Sixth Circuit has so far been the only appellate court to rule against same-sex marriage.










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