Although the Supreme Court last week ruled gay marriage bans unconstitutional, the Alabama Supreme Court on Monday effectively ordered probate judges not to issue same-sex marriage licenses for 25 days. The state's Supreme Court picked this amount of time because, technically, there is a 25-day period to file a petition to rehear the U.S. Supreme Court case.
However, regardless of any petition period, Alabama must follow the law as set by the U.S. Supreme Court, the highest in the land. For this reason, the Alabama court's order is confusing.
The Alabama court seems to have linked this 25-day halt to a different case altogether, one filed by the Alabama Policy Institute and Alabama Citizens Action Program. Monday's court order will allow both parties to write opinions to the court in light of the Obergefell v. Hodges decision on gay marriage by the U.S. Supreme Court. But it isn't entirely clear why, from a legal perspective, Alabama's state court believes that allows the state to circumvent the Supreme Court's overturning of gay marriage bans in the meantime.
The order is so confusing, in fact, that even judges at a state level are unsure what to do. "I am not real clear what it's saying," Jefferson County Probate Judge Sherri Friday told AL.com of the state court's order. "It's very unclear."
To further confuse things, the Association of County Commissions of Alabama told probate judges they should "follow the ruling of the U.S. Supreme Court beginning 10 a.m. Monday." Probate judges risk being found in contempt of court if they refuse to issue the same-sex marriage licenses, the American Civil Liberties Union of Alabama said. This puts the judges in an essentially impossible position.
Many probate judges have taken to issuing marriage licenses to gay couples regardless of the state court's order. While some judges are still attempting to weed through the court's complicated order and delaying licenses as a result, others have read the order and are choosing to ignore it.
In Limestone County, probate Judge Charles Woodroof said he was aware of the court's order. "We are issuing licenses [to] anyone who qualifies," he told The News Courier.