Alabama probate judges who refuse to issue marriage licenses to same-sex couples could ultimately be jailed for contempt if they disobey a federal judge's order, a few legal experts said Saturday.

"If the (federal) court issues an order and they refuse to comply with the order, then the court can find them in contempt of court, which could result in a fine or incarceration until they purge themselves of the contempt," former U.S. District Court Judge U.W. Clemon said. "I don't think that's likely to happen," he quickly added.

But Clemon and others say one option would be for the probate judges to get out of the marriage business all together - which at least two say they will do.

U.S. District Court Judge Callie V.S. "Ginny" Granade on Jan. 23 struck down Alabama's laws banning same-sex marriage in a ruling in one same-sex couple's lawsuit in Mobile. The judge ruled that probate judges around the state should begin issuing licenses to same-sex couples on Monday Feb. 9 if an appeals court did not issue a stay.

The 11th Circuit Court of Appeals refused to issue a stay and the U.S. Supreme Court has not acted, setting up potential legal showdowns between gay couples and some of the probate judges who have stated in recent days they won't issue marriage licenses to same-sex couples. It also could set up a showdown and dueling orders between the federal and state courts, one lawyer said.

"It would be a significant clash of judicial power," said Mat Staver, Founder and Chairman of Liberty Counsel which represents five or six Alabama probate judges.

At least five probate judges have said they won't issue marriage licenses to same-sex couples on Monday. Two, in Clarke and Pike counties, say they won't issue any licenses, even to opposite-sex couples. One, in Marengo County, says the forms will be available but she won't sign them. And probate judges in Washington and Covington counties say they won't issue to same-sex couples.

If a same-sex couple comes to an Alabama probate judge Monday and is denied a marriage license, then it would likely result in that couple filing a federal lawsuit against the probate judge, Clemon and others said. Or the couples could ask to intervene in the case in Mobile and seek an order from that judge.

"Given the current state of the law they could probably get an injunction," Clemon said.

Randall C. Marshall, legal director for the ACLU of Alabama, said that Judge Granade had made it clear that the issuance of marriage licenses to same-sex couples is the law of Alabama after her order and that those who refuse will be subject to a court order. She also made it clear that the sanctions could include the probate judges being on the hook for the attorneys' fees of those same-sex couples, he said.

Marshall agreed with Clemon and others that sanctions against a probate judge also could ultimately lead to a civil contempt order and potentially the probate judge being jailed until he or she complies.

Wendy Brooks Crew, a Birmingham attorney who represents April and Ginger Aaron-Brush, who have sued to have their out-of-state same-sex marriage recognized in Alabama, agrees there could be consequences for probate judges who refuse.

"Probate judges have certain duties and obligations as a result of their elected positions and there certainly can be repercussions for their refusal to perform their elected duties," Crew said.

Most probate judges around the state, however, appear ready to comply with Granade's order on Monday and issue marriage licenses to same-sex couples.

"It's certainly going to be a historical day for Alabama," Marshall said.

All Licenses?

For the few probate judges who say they will refuse to issue any licenses, the law is a little unclear, a few lawyers said.

Pike County Probate Judge Wes Allen, who is one of those saying he won't issue any licenses, stated in a news release that state law only says marriage licenses "may" be issued by probate judges.

Those probate judges who say they are not going issue any marriage licenses for either same-sex or opposite-sex couple may be able to do it since it applies to all, Clemon said. "I think that's a viable option," he said.

David Kennedy, an attorney for plaintiffs Cari Searcy and Kim McKeand in Mobile, said the law is ambiguous as to whether probate judges unilaterally can stop issuing licenses. But it is "incredibly foolish" either way, he said. "I think it's doing an incredible disservice to the residents of their county," he said.

"I think it is an open question as to whether a county probate court can completely get out of the marriage business," Kennedy said. "Certainly, if they issue to heterosexual but not same-sex, that will be a direct constitutional violation."

Showdown

If a lawsuit is filed in state court by a same-sex couple to force a probate judge to issue a license the case likely would quickly go to the Alabama Supreme Court. And that potentially would result in an order saying probate judges don't have to issue the licenses to same-sex couples, a few legal experts said.

Alabama Supreme Court Chief Justice Roy Moore has already issued advisory letters stating that probate judge's don't have to issue the licenses and follow Granade's order.

Staver said that like Moore, they are advising probate judges they don't have to issue the licenses. For those probate judges set to shut down the issuance of all marriage licenses "we'll support them either way," he said.

From a legal standpoint, Staver said, a federal judge does not have jurisdiction over the state of Alabama. The federal judge's order in the Southern District of Alabama relates to only one couple, he said.

"Outside that, that order is not binding," Staver said. "I think this judge by pretending to require everyone to issue same sex marriage licenses on Monday is far outside her jurisdiction and authority."

If someone did file a federal lawsuit against a probate judge for not issuing a marriage license the federal judge in that case would first have to agree with Granade's order, Staver said. If that judge did issue an injunction against the probate judge, the question then becomes who would enforce it, he said.

"They are still going to have to rely on the state to enforce the judge's order," Staver said. "Historically court orders are not worth the paper they are written on unless the executive branch enforces them."

Performing marriages

As to the issue of whether probate judges have to perform the marriages once a license is issued, state law does not require them to perform marriages. Judges in more than a dozen Alabama counties have said they will issue license but won't perform same-sex marriages because of their religious beliefs.

And several legal experts said the probate judges don't have to perform the weddings as long as they issue the licenses.

"Performing marriage ceremonies is an option, it is not a required duty," Crew said.

AL.com reporter Brendan Kirby contributed to this report