Alabama Supreme Court Orders Stop To Same-Sex Marriages

 Raging bigots or legal mental midgets?

It would seem that Alabama has learned nothing from its history of being on the wrong side of history just about every time an opportunity has presented itself.  Be it supporting slavery, participating in the rise of the Jim Crow laws, turning a blind eye to the lynching of blacks, banning interracial marriage, maintaining sodomy laws, and now banning same sex marriage, Alabama has been in the wrong.  Now, in a testament to the shortcomings of elected judges, the Alabama Supreme Court has issued a ruling barring state court judges from issuing marriage licenses to same sex couples.  Never mind that (i) a federal court ruled to the contrary, and (ii) the United States Supreme Court refused to block same sex marriages by extending a stay of the lower court order.  Seemingly, like Ken Cuccinelli and his cohorts here in Virginia, the Alabama justices are too stupid to grasp the concept that the U.S. Federal Constitution as interpreted by the federal courts ALWAYS trumps state law.  These justices apparently want their names remembered by history in the same vein as those on the Virginia Supreme Court when it twice upheld Virginia's ban on interracial marriage.  Here are highlights from AL.com:

Weeks after a United States District Court judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state. 

"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the order said. "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."

The order gives probate judges five days to submit responses if they want to show cause why they should be able to grant marriage licenses to same-sex couples. 

The order also gives Mobile County Probate Judge Don Davis until Thursday to argue why he should not be bound by the order. Davis has asked the court to dismiss him from the lawsuit because he had been ordered by the federal district court to issue licenses to same-sex couples. 

Only Justice Greg Shaw dissented from the order, but he made clear that he did so because he thought the case had been filed incorrectly and the court did not yet have jurisdiction to hear it. In his dissent, Shaw argued that the federal court should have issued a stay against same-sex marriages until the U.S. Supreme Court had settled the matter.

David Kennedy, one of the lawyers who represented the Mobile couple who successfully challenged Alabama's same-sex marriage ban, said he does not think the ruling would survive a challenge in federal court.

"I don't really think that they can do that. I'm not surprised, but I'm somewhat appalled," he said. "The Supreme Court of the United States ruled that the stay (on the order striking down the gay marriage ban) would expire on Feb. 9. On Feb. 9, same-sex marriage effectively became legal in Alabama."

Kennedy said he believes that probate judges act "at their own peril" if they choose to obey state courts instead of federal court. He said any couple denied a marriage license could sue in the federal district where they live.

He said the outcome should be clear.  "Whenever state law conflicts with federal law, federal law wins," he said.  

"The state is going to take such a black eye on this," said University of Alabama Law Professor Ron Krotoszynski, Jr.. "I think it's going to play very badly in the national media," he said, citing shows  like Bill Maher, John Oliver and The Daily Show with Jon Stewart.

"They're rejecting Judge Grenade's reasoning lock stock and barrel," Krotoszynski said.  Granade's reasoning is in line with more than 60 federal district judges who have ruled on the same issue since the U.S. Supreme Court knocked down a port of the federal Defense of Marriage Act (or DOMA) in 2013, Krotoszynski said.

The next likely step is for one of the probate judges to file an emergency stay with the U.S. Supreme Court, Krotoszynski said. The situation could be "chaotic" between now and June when the U.S. Supreme Court is to rule on the issue anyway in a 6th Circuit case, he said.

"The Alabama state Supreme Court does not have the authority to interfere with a federal court order," said HRC Legal Director Sarah Warbelow. "This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling."