Roy Moore orders ban on same-sex marriage licenses

Alabama Chief Justice Roy Moore Sunday evening ordered the state's probate judges to not issue marriage licenses to same-sex couples.

The outspoken social conservative told judges in a six-page letter that a federal judge's decision striking down the state's ban on same-sex marriage was not binding on state courts, and that it had caused "confusion" in the state.

Moore's action, which could set up a showdown between the state's chief justice and the federal courts, won swift condemnation from LGBT rights groups. HRC Legal Director Sarah Warbelow called Moore's letter "a pathetic last-ditch attempt at judicial fiat" in a statement Sunday evening.

Issued hours before same-sex marriage was expected to become legal in Alabama, the letter says "no probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975." The named sections refer, respectively, to the state's 2006 constitutional amendment banning same-sex marriage, and the 1998 law doing so.

U.S. District Judge Ginny Granade struck down both the law and the constitutional amendment in two decisions on Jan. 23 and Jan. 26, saying they violated same-sex couples' equal protection and due process rights under the 14th Amendment to the U.S. Constitution. Moore's order comes as a stay of Granade's decision was set to expire. Early Monday, the U.S. Supreme Court denied the stay.

Alabama will become the 37th state in the union to recognize same-sex marriage. However, Moore has made it clear he will not give same-sex marriage a smooth path in the state.

In letters sent to Gov. Robert Bentley and the state's probate judges over the past two weeks, the chief justice argued that federal district and appellate courts had no binding authority on state courts. Moore repeated that argument in his Sunday letter.

In addition, Moore claimed that the fact some probate judges had decided to stop issuing same-sex marriage licenses was a sign of the "confusion" that Granade's order was creating. The chief justice also said that new marriage licenses issued by the Alabama Department of Public Health last week were in "contradiction to the public statements of Governor Bentley to uphold the Alabama Constitution."

Moore also said that "neither the Supreme Court of the United States nor the Supreme Court of Alabama" had ruled on the constitutionality of Alabama's same-sex marriage bans. The chief justice has not stated directly whether he believes a decision from the nation's high court authorizing same-sex marriage would be binding on the state.

How the order will be enforced is unclear. The chief justice's letter said that Gov. Robert Bentley should use "the legal means that are at his disposal" to carry the instructions in the letter out. Jennifer Ardis, a spokeswoman for the governor, said Sunday evening Bentley's office would have a comment on Moore's letter on Monday.

Granade issued a clarification of her rulings a few days after they were issued, saying it applied to all state officials in Alabama.

Moore has tangled with federal courts in the past. In 2003, Moore, serving his first term as the state's chief justice, refused an order from U.S. District Judge Myron Thompson to remove a monument of the Ten Commandments from the Alabama Judicial Building. Moore's defiance led to his removal as chief justice later that year.

SPLC President Richard Cohen, who has filed an ethics complaint against Moore over his public statements on same-sex marriage, accused Moore of "creating a crisis in our state."

"We urge the probate judges to follow the Constitution of the United States and issue marriage licenses when their offices open in the morning," a statement from Cohen said. "Chief Justice Moore has no authority to tell them to do otherwise."

Some LGBT couples were moving ahead with marriage plans Sunday evening. Tori Sisson, a field organizer for the Human Rights Campaign who camped out with her fiance, Shante Wolfe, Sunday evening to be the first couple to get a marriage license in Montgomery, said Moore's letter "doesn't change our plans."

"It's really disheartening that he's taking so much energy to make all these statements, when no one fought this hard when he got married," she said.