Conflicting Orders: Gay Marriage’s Legal Standoff in Alabama

Anna Quinn, Loyola University of MD:

Last Monday, a swarm of couples gathered outside the probate court in Birmingham, Alabama, cheering as the first of the state’s marriage licenses were issued to same-sex couples. The celebration began on the heels of a recent Supreme Court decision not to block a U.S. District Court ruling from January—essentially upholding the previous ruling. The decision deemed Alabama’s Sanctity of Marriage Amendment—their amendment banning same-sex marriage—unconstitutional. The excitement that spurred from the ruling shocked even Alabama judges such as Judge Alan King, a probate court judge from Jefferson County. “This is by far the largest crowd that I’ve seen,” Judge King told NBC News, “It’s a very happy occasion.”

However, the occasion was not quite as happy in many of the surrounding counties. Although the Supreme Court decision effectively legalized gay marriage in the entire state, many couples hoping to marry were greeted with refusal from their counties to issue their licenses. In fact, according to the Human Rights Campaign, these stubborn counties make up a majority of the state. An estimated 52 out of 67 counties declined to process the paperwork for same-sex couples. Shelby County, for instance, posted a sign on their city hall’s door announcing that no marriage licenses would be issued due to “conflicting orders,” according to NBC News.

While it is possible many counties are simply reluctant to accept the new law, these “conflicting orders” do in fact account for part of the confusion. After the SCOTUS decision announced that same-sex marriage was legal, Alabama Chief Justice Roy Moore ordered judges in the state not to issue any same-sex marriage licenses—a conflicting order, indeed. Chief Justice Roy Moore’s argument, however skewed, is that federal courts should not have the power to order probate judges to do anything.

If this story seems familiar, it is because this is not Alabama’s first run in against a federal order. Many media sources see this current situation as an echo of Alabama’s battle to accept desegregation during the Civil Rights Movement. Some, such as both ABC and CBS news, are even comparing Chief Justice Moore to George Wallace, a former Alabama governor who famously blocked the auditorium door of the University of Alabama in 1963 to prevent impending integration of the school.

Alabama’s current governor, Robert Bentley, has expressed similar discontentment with the new law, but has not taken it to Justice Moore’s extreme. Gov. Bentley has said while he does not agree with the ruling, he will not try to stop its implementation and will, “allow the issue of same-sex marriage to be worked out through the proper legal channels,” according to NBC News.

However chaotic it has become in Alabama, this theory of leaving same-sex marriage laws to be settled by legal means rather than legislative methods or referendums is actually proving to be the most successful for gay rights on a national level as well. Within the last few years there has been an enormous wave of progress for the gay community. A 2014 Gallup poll showed that 55% of Americans nationwide believe same-sex marriage should be legal. And this public sentiment has been proven with a tremendous surge of states legalizing same-sex marriage. With this ruling, for instance, Alabama has become the 37th state in which same-sex marriage is legal. Out of these 37 states, 30 of them changed their laws within the last 4 years—26 of them through a court decision. Moreover, a significant amount of these court decisions were initially passed as laws, or decided by lower state courts, and were stayed until federal courts or the Supreme Court made the final ruling.

While leaving the decision to the Supreme Court may create more upheaval within the state, at least with the case of Alabama, it has still proven to be the most successful route for gay rights’ progress. Some predict it could lead to national legalization of same-sex marriage—and soon.

Freedom to Marry, a national campaign aimed at ensuring the rights of all to marriage, believes a national legalization could happen within the year. In April, the Supreme Court is scheduled to hear the appeals of the 6th circuit court of appeals. This would mean decisions concerning cases from Kentucky, Ohio, Michigan and Tennessee. However, Freedom to Marry and other activists are hoping that this ruling will mean more than simply adding four states to the list. With their recent precedents, it seems likely that the Supreme Court could choose to decide the question nationwide, instead of continuing on a state-by-state basis. Freedom to Marry and other gay rights organizations have already begun their campaigns to create a “climate that maximizes the chances for a favorable ruling.”

Even President Obama seems to think we won’t have to wait that long to see a country with marriage equality. In a recent interview with BuzzFeed News he predicted, “the Supreme Court is about to make a shift, one that I welcome … it’s time to recognize that under the equal protection clause of the United States [Constitution], same-sex couples should have the same rights as anybody else.” Despite the possibility of more legal standoffs similar to Alabama’s, this prediction is an exciting prospect for the gay community and the country as a whole. With both sides hard at work to either prevent or support this seemingly imminent decision, the nation must simply wait and see whether history will be made.



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