Alabama’s confused response to same-sex marriage ruling

BIRMINGHAM, Ala. — Across Alabama, more than a dozen probate judges have refused to issue same sex marriage licenses following the U.S. Supreme Court's ruling on Friday that same-sex marriage is legal across the country.

On Wednesday morning, U.S. District Judge Callie V.S. Granade ordered Alabama's 68 probate judges to begin issuing same-sex marriage licenses. However, as of Wednesday evening, 17 continued to refuse to issue marriage licenses to same-sex couples or had stopped issuing any marriage licenses at all. The result is a state of confusion.

On Friday, Jennifer Kenney, 41, and her wife Hali Felt, 32, woke to their cell-phones buzzing with celebratory text messages that same-sex marriage was legal throughout the United States. They looked at each other and decided they should get married.

“I think both Hali and myself are both fairly optimistic people,” Kenney said. That same day the couple walked to the Tuscaloosa courthouse with some friends and asked the clerk for a marriage license. They were allowed to fill out a marriage application, writing one name under “groom” and the other under “bride,” but were not issued a license.

“When they said 'no', I didn’t know what to say,” Kenney said. “It was humiliating, and I don't think Hali or I use that word lightly. It feels so hurtful and vindictive.”

On Wednesday, when Al Jazeera called the Tuscaloosa probate office, a clerk responded that the office was issuing marriage licenses. Before Granade’s order, other probate offices told Al Jazeera that they might start processing same-sex marriage licenses on July 6, while a clerk in Clay County stated that they were short-staffed and not issuing any marriage licenses until July 15.

“They have a colorful legal argument that 'I am waiting for the order to be final,'” said John Carroll, a former federal judge who teaches at Samford University’s Cumberland School of Law in Birmingham, the state's largest city.

He explained that these delays are in reference to a 25-day period during which a Supreme Court order is not technically final and parties can appeal the ruling. But Carroll said there is no chance of the decision being appealed: “The Supreme Court ruling is the end of the matter. Article 1, Section 6 of the U.S. Constitution says that federal law is supreme, and the [Supreme Court's] decision binds the states.”

According to Carroll, the real legal issue centers on some counties not providing marriage licenses at all, forcing residents to drive miles to other counties to obtain a marriage license.

Judge Jerry Pow in Bibb County said, “We are not issuing licenses one way or another.” In rural Clarke County, Judge Valerie Bradford Davis issued a statement that she would no longer be providing any marriage licenses. “I understand that five judges have barred the States [sic] and their people from defining marriage as a union between a man and a woman — like States [sic] have done for hundreds of years. However, the Courts [sic] ruling does not require a change in my current marriage policy.”

Following the Supreme Court ruling, many state officials signed statements, marking their disagreement.

“Regardless of today’s ruling by the Supreme Court,” Alabama Governor Robert Bentley wrote in a statement, “I still believe in a one man and one woman definition of marriage.”

Alabama's Attorney General Luther Strange mirrored the governor's language but affirmed that the court's decision was now law. “While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land. Short of the passage of a Constitutional Amendment protecting marriage as between one man and one woman, the U.S. Supreme Court has the final say.”

Alabama Chief Justice Roy Moore, who has been a vocal opponent of same-sex marriage, told a local newspaper (PDF) that probate judges are not required to issue same-sex marriage licenses for 25 days following the ruling. On Monday, the Alabama Supreme Court filed an order suspending the issuing of same-sex marriage license for 25 days to allow for appeals to the U.S. Supreme Court ruling.

While Moore recused himself from a vote on the order, he reposted a Facebook message from the non-profit the Foundation for Moral Law, where his wife Kayla Moore is president. “Not only does the U.S. Supreme Court have no legal authority to redefine marriage, but also at least 2 members of the Court’s majority opinion were under a legal duty to recuse and refrain from voting. Their failure to recuse calls into question the validity of this decision.”

John Eidsmoe, senior counsel for the Foundation for Moral Law, an organization based in Montgomery that works to protect religious freedom, reiterated that the debate over same-sex marriage was not resolved and that the Supreme Court decision was “illegitimate” because Justices Sonia Sotomayor and Ruth Bader Ginsberg had presided over same-sex unions and should have recused themselves.

Eidsmoe referenced the 10^th Amendment, which states that the powers not explicitly granted to the federal government “are reserved to the States respectively, or to the people,” as well as the Kentucky Resolutions, written by Thomas Jefferson in 1798, which argued that individual states can declare federal laws unconstitutional, because the “states create the federal government.”

“The court has used wrongful means to establish an invalid union to perpetrate immoral activity,” Eidsmoe said. “I know a number of state legislators are drafting bills to nullify the Supreme Court decision.”

The order filed by Alabama's Supreme Court has only served “to muddy the waters, to cause confusion,” said Susan Watson, executive director of the ACLU of Alabama. Watson noted that the ACLU was considering filing suits against probate judges who issue marriage licenses to heterosexual couples and not homosexual couples. On Monday, Watson and the directors of other human rights organizations in Alabama joined a conference call with U.S. District Attorney Joyce Vance to discuss reports of discrimination against the LGBT community across the state.

Living in Alabama, Kenney said, she and her wife constantly think about how their relationship is perceived. Should they hold hands in public? How should they refer to one another in front of someone they don't know well? Will a construction worker or plumber visiting their house know they are gay and how will they react?

Kenney and her wife are both professors at the University of Alabama, which provides benefits for same-sex partners. Kenney said she and Felt enjoy working at the university, and are engaged with their students and in campus life.

“It's important for us to be married in the county where we live,” Kenney explained, imagining future generations of her and Felt's family tracing their genealogy through public documents.

“I think it’s important for our history that we get married and have a public record. I want to get married, and his [Judge Hardy McCollum's] name needs to there too,” Kenney stressed. “He is part of this story too. He is the guy that refused us at first and then had to issue the license. So his name should be there too.”

Kenney and Felt received a marriage license in Tuscaloosa on Wednesday. Kenney texted that she was “elated,” though she cautioned that there were many future trials ahead for the LGBT community.