Following the recent case that many considered a landmark decision of the United States Supreme Court, entitled Obergefell v. Hodges, same-sex couples now have a right to marry in all states in the nation, including Alabama. As one could expect, there are some who do not want to go along with new law, even though it is binding, are they are required to follow it based upon the Supremacy Clause of the United States Constitution.
As part of an effort to challenge implementation of the law, probate judges in Alabama questioned whether they were required to issue marriage licenses to same-sex couples. As our Birmingham divorce attorneys can explain, it is the probate court, which was created to administer estates of deceased persons, so their assets can be transferred to surviving relatives in an orderly manner, which is also charged with the responsibility of issuing marriage licenses.
According to a recent news feature from Alabama.com, probate judges in at least six counties throughout the state have decided they will not issue marriage licenses to same-sex couples. This is after they went to the federal court in Alabama, and U.S. District Court judge said they must issue the marriage licenses to same-sex couples pursuant to the new law, which resulted from the United States Supreme Court holding.
The probate judges refusing to issues marriage licenses for same-sex couples are located in Elmore County, Tuscaloosa County, and Escambia County, but these judges are still issuing marriage licenses to heterosexual couples. In Randolph County, Colbert County, and Lauderdale County, the probate judges are taking a different approach. They seem to believe they are being non-discriminatory and still complying with the law if they decide not to issue marriage licenses to anyone who applies, regardless of their sexual orientation.
When these probate judges have been asked how they felt they were allowed to either not issues marriage licenses to same-sex couples, or not issue marriage licenses to anyone who applied, they cited the Alabama Supreme Court Justice Roy Moore and his very controversial statement that probate judges did not have to follow the law for 25 days because of a review period to request a rehearing for any Supreme Court decision.
The National Center for Lesbian Rights is also claiming Marion and Clay counties are not issuing marriage licenses to same-sex couples. The author of the news article attempted to contact probate judges from these two counties to confirm whether this is true, but the judges in both counties were apparently not available for comment at the time they were asked.
The Campaign for Southern Equality reported the Tallapoosa County probate judge was not issuing marriage licenses to same-sex couples, but he is reported to have stated his office has been issuing marriage licenses to any couple who applied, as the Supreme Court legalized gay marriage for all, and, since it is the law, he is going to abide by the law and let the federal courts deal with any greater issues and challenges.
This was all made more complicated by an order from the Alabama Supreme Court allowing a delayed implementation of the lower federal court's decision, pending a decision by the United States Supreme Court; however, since that has already happened, one would think the issue would be resolved.
Several Alabama counties witholding gay marriage licenses despite federal order, July 1, 2015, AL.com