The Alabama Supreme Court this morning dismissed petitions by the Alabama Policy Institute, the Alabama Citizens Action Program and Elmore County's probate judge that had sought a landmark ruling declaring the state's prohibition on gay marriage still stands in defiance of the U.S. Supreme Court.

Today's ruling means same-sex marriage is still intact in Alabama and the petitions challenging it are tossed. The petitions had sought to challenge the U.S. Supreme Court's ruling declaring same-sex marriage legal in the Obergefell case.

While dismissing the petitions Alabama justices, particularly Chief Justice Roy Moore, still expressed their strong disagreement with the U.S. Supreme Court ruling. Moore called it a "lawless act."

Eric Johnston, attorney for API, said the Alabama justices' ruling ends their petitions.

"My initial reading of it is that the (Alabama) justices were bound by Obergefell and they have agreed that Obergefell is controlling and that the opinion from March will not now be in effect," Johnston said. "They (Alabama justices), however, all strongly expressed disagreement with Obergefell but as a matter of the rule of law they had to follow it."

Johnston said that lawyers for the groups and probate judges will be talking but the initial thought is that they can't do anything with that particular case. "It's unfortunate," he said.

API and the others had hoped to get a decision from the Alabama Supreme Court upholding their previous order that told probate judges not to issue the licenses. If that had happened it was then hoped it would lead to an eventual appeal to the U.S. Supreme Court. "What they (Alabama justices) did today is they closed that door," he said.

The Alabama Supreme Court issued a one-page order and 169-page opinion with all nine justices concurring, and seven of them writing specially.

Roy Moore

In a concurring opinion that takes up more than half the opinion Moore wrote that despite the dismissal of the petitions, Moore believes the state's ban on gay marriage is still intact.

"Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case," Moore writes. "That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, ... and the Alabama Marriage Protection Act, SS 30-1-9, Ala. Code 1975, are constitutional," he states.

Moore goes on to criticize at length the U.S. Supreme Court's 5-4 opinion in Obergefell.

"Based upon arguments of "love," "commitment," and "equal dignity" for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country," Moore writes.

"In reality, the Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act," Moore states.

"The (SCOTUS) opinion appeals more to emotion than law, reminding one of the 1974 song "Feelings" by Morris Albert, which begins: "Feelings, nothing more than feelings ....," Moore adds. "Obergefell (the SCOTUS case) is but the latest example of the Court's creation of constitutional rights out of thin air in service of the immorality of the sexual revolution."

Moore also analyzes the arguments made by the four U.S. Supreme Court Justices who voted against the legalization of same-sex marriage.

Moore also writes about the supremacy of U.S. Supreme Court decisions and that it isn't absolute.

"The Supremacy Clause, quite obviously, by this chain of reasoning, does not give the United States Supreme Court or any other agency of the federal government the authority to make its every declaration by that very fact the supreme law of the land," Moore writes. "If the Court's edicts do not arise from powers delegated to the federal government in the Constitution, they are to be treated not as the supreme law of the land but as mere usurpation."

Moore, who graduated from the U.S. Military Academy at West Point in 1969 and served in the U.S. Army as a company commander with the Military Police Corps in Vietnam, wrote about obeying commands.

"Although the United States military depends for its effectiveness on obedience to the chain of command, the principle that a subordinate has a duty to resist illegal orders is also well established. The duty to obey the orders of a superior is absolute "unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."

"The general principle of blind adherence to United States Supreme Court opinions as 'the law of the land' is a dangerous fallacy that is inconsistent with the United States Constitution," Moore also writes.

"In my legal opinion, Obergefell, like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion. Its consequences for our society will be devastating, and its elevation of immorality to a special "right" enforced through civil penalties will be completely destructive of our religious liberty," Moore wrote.

Moore, who had recused himself from voting on the March 3 order and other matters because he had issued earlier orders to probate judges advising them not to issue same-sex licenses, participated in today's order and opinion.

But Moore in today's opinion said he believes he no longer has to recuse himself. "In joining this case to consider the effect of Obergefell, I am not sitting in review of my administrative order, nor have I made any public statement on the effect of Obergefell on this Court's opinion and order of March 3, 2015. My expressed views on the issue of same-sex marriage are also not disqualifying," he writes.

Other justices

Three of the justices, Lyn Stuart, James Allen Main, and Michael Bolin issued a short statement in the opinion.

"Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing," according to that statement. "Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust."

Bolin also issued a concurring opinion. "I do not agree with the majority opinion in Obergefell; however, I do concede that its holding is binding authority on this Court."

"Clearly, the State of Alabama has exercised its sovereign authority to define marriage as being inherently that relationship between a man and a woman by the authority that has exclusively been delegated to the states ...," Bolin wrote.

Bolin stated he would not go as far as to defy the U.S. Supreme Court ruling "because to do so would only placate the heart at the expense of the head; and, should anyone do so, our constitutional republic would begin to cease being a nation of laws and not of men.."

Bolin said that if the Alabama justices did issue an order in defiance of the SCOTUS order it could potentially render the probate judges subject to personal civil lawsuits "for following their religious beliefs."

"And it is arguably not hyperbole to further contemplate that it could place those same licensing officials in the middle of an endgame stand-off with federal marshals and/or federalized national guardsmen on one side, with a contempt order from a federal court in hand, and state law-enforcement officers on the other, with a competing and conflicting state court order in hand," Bolin stated. "We have already had one war with kinsmen fighting kinsmen. We do not need another. Rather, we need to see that review of this wrong decision is done the right way--by constitutional means."

Justice Tom Parker criticized the U.S. Supreme Court decision. "Obergefell is the latest example of judicial despotism. It is a decision not based on law, but on the bare majority's philosophy of life. For the states to honor such a decision as legitimate is to bow our knee to the self-established judicial despots of America."

Justice Greg Shaw

Alabama Supreme Court Justice disagreed with some of Moore's arguments, even suggesting that a judge who can't comply with the decision of a higher court should leave the bench.

"If a judge finds that he or she cannot abide by a controlling decision of a higher court, then that judge should resign from office," Shaw stated. "He or she should not indulge in the pretense that rebelling against a superior court's decision is an accepted judicial response."

"Such conduct does not show respect for or comply with the law; it does not promote public confidence in the integrity or impartiality of the judiciary," Shaw wrote. "Instead, I believe that defiance would bring the judicial office into disrepute."

"Additionally, I find curious this idea put forth by Chief Justice Moore that ''the judges in every state' may personally weigh the correctness of any Supreme Court decision and, if they disagree with it, then they may ignore it. If this were indeed the case, the Constitution would in no way be protected; instead, it would mean that there would be a different Constitution for every judge based on varying legal opinions."

Shaw also made a reference in a footnote that he has not conducted himself "in a manner that calls into question my integrity and impartiality, and I have avoided conduct prejudicial to the administration of justice that would bring the judicial office into disrepute, which are barred by (an ethical canon)."

Shaw may have been referencing Justices Moore and Parker who have been outspoken on the issue of gay marriage.

The Southern Poverty Law Center has filed complaints with the Alabama Judicial Inquiry Commission stating that Moore and Parker had violate judicial canons by their public comments on the issue.

What does ruling mean?

Richard Cohen, president of the Southern Poverty Law Center, said the Alabama Supreme Court's decision Friday means very little. "It is not likely to have any affect in the world other than to cause confusion," he said.

"Justice Moore's opinion is bizarre and disheartening. It is bizarre because it is completely lawless," he said

"The only justice over there who showed integrity is Justice Shaw. He made it clear that even though he disagrees then he was bound to follow it," Cohen said.

Cohen said that Shaw also was right that judges who won't follow a high court should resign. Cohen said he hopes the Judicial Inquiry Commission acts quickly on their complaints and forwards it to the Alabama Court of the Judiciary. "They (Moore and Parker) are a disgrace to the bench. Alabama deserves better," he said.

In a recent interview with AL.com Parker shot back about the SPLC complaint against him. "A judge, as any citizen, has a first amendment right to political speech and it's no more than an attempt by a leftist organization to intimidate someone into silence," he said.

Richard Cohen, president of the Southern Poverty Law Center, said the Alabama Supreme Court's decision Friday means very little. "It is not likely to have any affect in the world other than to cause confusion," he said.

"Justice Moore's opinion is bizarre and disheartening. It is bizarre because it is completely lawless," he said

"The only justice over there who showed integrity is Justice Shaw. He made it clear that even though he disagrees then he was bound to follow it," Cohen said.

Cohen said that Shaw also was right that judges who won't follow a high court should resign. Cohen said he hopes the Judicial Inquiry Commission acts quickly on their complaints and forwards it to the Alabama Court of the Judiciary. "They (Moore and Parker) are a disgrace to the bench. Alabama deserves better," he said.

Randall C. Marshall, legal director for the American Civil Liberties Union of Alabama, said that Justice Shaw's written concurrence seems to be the clearest explanation of what the opinion means. "All motions/petitions that were filed subsequent to the original mandamus order are dismissed, technically leaving in place the original decision. But that decision (according to Justice Shaw) is a dead letter in light of Obergefell and the Strawser injunction which binds all probate court judges in Alabama," he said.

"Clearly the Alabama Supreme Court - or at least a number of the justices - disagree vehemently with the U.S. Supreme Court's decision. But equally as clear, Alabama is bound by that decision and Alabama law prohibiting same-sex marriage is unconstitutional and unenforceable," Marshall said.

"I don't think that we will see any change going forward. The great majority of counties have simply ignored Chief Justice Moore's administrative order and the Alabama Supreme Court's mandamus order," Marshall said. "There are the counties that have ceased issuing any marriage licenses - any of which could still be subject to potential legal action - but there are no counties that are issuing licenses to opposite-sex couples but not to same-sex couples. Any county probate court judge that did so would find himself or herself in front of (federal) Judge Ginny Granade on a contempt motion."

Granade is the federal judge in January 2015 - six months before the U.S. Supreme Court ruling - who had originally declared Alabama's ban on gay marriage unconstitutional.

One legal group, Liberty Counsel, which also represented API and ALCAP, saw Friday's ruling as an affirmation of the Alabama Supreme Court's own March 3, 2015 ruling. While dismissing the groups' petitions, Friday's order did not erase that ruling, according to a Liberty Counsel statement.

"The ruling last year by the Alabama Supreme Court was historic, and is one of the most researched and well-reasoned opinions on marriage to be issued by any court in the country. Today's opinion by the Alabama Supreme Court calling the U.S. Supreme Court's marriage opinion 'illegitimate' will be remembered in history like the 'shot heard around the world,'" said Mat Staver, Founder and Chairman of Liberty Counsel.

"The Alabama Supreme Court has openly rejected the U.S. Supreme Court's 5-4 marriage opinion, labeling it 'illegitimate' and without legal or precedential authority," Staver stated. "This is a clear victory for the rule of law and an historic decision by the Alabama Supreme Court. The Judgement makes permanent the Alabama Supreme Court's order prohibiting probate judges from issuing marriage licenses to same-sex couples. The Alabama Supreme Court has rejected the illegitimate opinion of five lawyers on the U.S. Supreme Court."

Background

Today's order is responding to an order the state supreme court issued last year.

On March 3, 2015 - prior to the U.S. Supreme Court's order - the Alabama Supreme Court had ordered probate judges to halt the issuance of marriage licenses to same-sex couples and ruled that Alabama's ban on gay marriage was still in effect. That ruling came despite a federal judge's ruling in January 2015 that had declared the state ban on gay marriage unconstitutional and opened up licensing.

The Alabama Supreme Court's March 3, 2015 order came as the result of a petition filed by the Alabama Policy Institute and the Alabama Citizens Action Program, two groups that oppose gay marriage. After the U.S. Supreme Court's ruling legalizing same-sex marriage the Alabama justices invited probate judges and groups to submit briefs on what they should now do with the lawsuit.

The two groups, Elmore County Probate Judge John Enslen and Washington County Probate Judge Nick Williams were among those who responded with briefs and petitions to the Alabama Supreme Court.

Enslen declined comment regarding Friday's ruling.

Not everyone is giving up the fight against same-sex marriage in Alabama.

Bessemer attorney Austin Burdick on Feb. 24 filed a federal lawsuit against the five justices on the high court who made up the majority in that ruling.

In their briefs API and ACAP argued there was precedence for rejecting a U.S. Supreme Court mandate believed to be unlawful.

Williams filed a couple of such requests asking the Alabama Supreme Court to defy the U.S. Supreme Court's ruling and give those probate judges who believe issuing the licenses are against their religious beliefs. In another filing Williams sought a declaratory judgment or protective order from the Alabama Supreme Court in light of the recent jailing of a Kentucky clerk for refusing to issue same-sex marriage licenses.

Davis was held on contempt charges but later released under the condition that she not interfere with her workers from issuing the licenses.

Enslen asked the Alabama Supreme Court to issue an order stating Alabama will no longer issue same-sex marriage licenses and asked that the justices issue an order declaring the state will only honor same-sex marriage licenses either issued by the federal government or a state that has a state law allowing gay marriage.

Because the Alabama Supreme Court had taken eight months to respond to the petitions, about a half dozen conservative groups filed a complaint a few weeks ago with the Alabama Judicial Inquiry Commission about the court dragging its feet on responding to the petitions.

This story will be updated.