Judge orders one Alabama official to start gay marriages. Will others follow?

A federal judge in Alabama on Thursday ordered a probate judge in Mobile to begin issuing marriage licenses to same-sex couples, but it remains unclear how broadly her order will apply in a state that is still largely in a defiant posture concerning same-sex marriages.

United States District Judge Callie Granade ordered Don Davis, the probate judge in Mobile, to open his office and start issuing licenses.

“Probate Judge Don Davis is hereby enjoined from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriages,” the judge wrote in an eight-page order.

“If plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license,” Judge Granade said.

The action comes amid a week of conflicting legal arguments, confusion, and open defiance among officials in Alabama after a ruling by Judge Granade striking down the state’s ban on same-sex marriages took effect on Monday.

Despite the ruling, most of the state’s probate judges, who issue marriage licenses in each county, are refusing to begin providing licenses to gay men and lesbians wishing to marry. Some simply closed their offices and refused to issue any licenses at all.

In contrast, probate judges in 23 Alabama counties voluntarily started issuing licenses without regard to the sexual orientation of applicants.

Those refusing to issue licenses have cited an order issued by Alabama Supreme Court Chief Justice Roy Moore the day before the federal ruling was to take effect.

On Sunday, Chief Justice Moore ordered Alabama probate judges to uphold Alabama law, rather than the federal decision.

The chief justice noted that the federal lawsuit challenging Alabama’s marriage laws named the state’s attorney general, Luther Strange, as the sole defendant. He said the federal courts had no jurisdiction to order any probate judge to comply with its decision, since no probate judge was named as a defendant in the underlying lawsuit.

Lawyers for four same-sex couples in Mobile sought to correct that deficiency on Monday by amending their complaint to include Davis as a defendant.

With Davis as a defendant in the lawsuit, Judge Granade on Thursday was able to exert jurisdiction over him and order him to begin issuing marriage licenses.

The legal gymnastics were necessary in part because the federal appeals court, the 11th US Circuit Court of Appeals, has not yet ruled on the merits of Judge Granade’s decision. Such a ruling would establish binding precedent throughout all three federal districts in Alabama.

Granade’s decision last month invalidated Alabama’s marriage law and a state constitutional amendment that defined marriage as “inherently a unique relationship between a man and a woman.”

Granade concluded that Alabama’s marriage definition violated a fundamental right under the US Constitution for same-sex couples to marry. She also ruled that it violated their constitutional right to equal treatment.

Alabama officials had asked both the appeals court and the US Supreme Court to stay the decision until the merits of the case should be litigated – or at least until the US Supreme Court decides four pending same-sex marriage cases raising the same issues.

Both the appeals court and the Supreme Court declined to issue a stay.

Judge Granade’s injunction only applies to Davis. It is possible that other same-sex couples will have to file lawsuits naming other probate judges as defendants to force them to issue licenses to same-sex couples.

It also possible that state officials may recognize that Judge Granade’s decision is based on an interpretation of the US Constitution, which binds all public officials – state, local and national. In that sense, probate judges may voluntarily comply with the principles expressed in Granade’s decision.

“Today’s ruling by Judge Granade provides clear direction to Judge Davis and other probate judges and will help ensure that all same-sex couples in Alabama, regardless of where they live, have the freedom to marry,” said Shannon Minter, legal director of the National Center for Lesbian Rights, in a statement.

According to the gay rights organization Human Rights Campaign, on Thursday afternoon prior to the ruling, 23 county probate judges were issuing marriages licenses to all couples, 18 were only issuing licenses to heterosexual couples, and 26 – including Mobile – were refusing to issue any licenses.

Granade’s order should, at a minimum, reduce that last number from 26 to 25.