The Alabama Supreme Court (The Associated Press)

The Alabama Supreme Court this week became the first state high court in the nation to challenge a federal court order allowing same-sex marriage, legal experts say.

Alabama Supreme Court justices on Tuesday ordered a halt to gay marriage licensing in the state.

A majority of probate judges had begun issuing the licenses in February after U.S. District Court Judge Callie V.S. Granade struck down the state's ban on same-sex marriage and later ordered Mobile's probate judge to issue licenses.

For some, the move by Alabama justices means a step back for a state trying to distance itself from a historical image of intolerance while also recruiting new industry.

"It certainly seems to be the most extreme example of a state court refusing to follow the orders of a federal court regarding marriage equality," said Stratton Pollitzer, deputy director and co-founder of Equality Florida. "It looks pretty ridiculous to the rest of the country."

For others, the Alabama Supreme Court's order is a necessary step in defending states' rights to determine the definition of marriage.

"Not only are we the first state to do that, our motto is 'we dare defend our rights'," Alabama Supreme Court Chief Justice Roy Moore said in an interview with AL.com.

"I can't explain why more than 20 other states have bowed down to unlawful federal authority but Alabama is not one of them," Moore said. "A federal judge has no authority to overturn a state constitutional amendment in the face of a state court's opinion on the same matter."

Moore abstained from voting on the Alabama Supreme Court's order this week because he said he didn't want the appearance of impropriety because of his previous public stances against gay marriage.

Moore also had issued an advisory order the day before Granade's order went into effect Feb. 9 telling probate judges not to issue licenses to same-sex couples.

Moore said he has seen some media refer to the fact that 37 states have legalized same-sex marriage. He said that's wrong.

Only three states have adopted same-sex marriage by referendum of the people, several state legislatures passed laws allowing it, and seven or eight state supreme courts and federal district orders in about 20 states have been issued to toss out bans and allow it.

State courts don't have to follow lower federal court - district and circuit - rulings, Moore said. "While their rulings may be persuasive authority, they are not controlling," he said.

Moore argues no federal court - not even the U.S. Supreme Court - has the authority to re-invent the definition of words, such as "family" and "marriage," for a state. "Those policies are domestic and left to the states," he said, citing several cases.

As for Judge Granade's ruling in Mobile, her ruling only covers those parties involved, Moore said. At the time her ruling was issued no probate judge was a party to that case. Also, when Granade later issued the order telling Mobile Probate Judge Don Davis to issue the marriage licenses it only covered those couples that were parties to the lawsuit, he said.

Mat Staver, an attorney for Liberty Counsel, agreed. He said the couples before Davis got their marriage licenses and Judge Granade can't order him to continue issuing licenses.

Liberty Counsel is the national legal group that represented the two groups - the Alabama Policy Council and Alabama Citizens Action Program - that petitioned the Alabama Supreme Court to issue Tuesday's order halting gay marriage licensing.

"I agree the Alabama Supreme Court has been more aggressive and they're the only one who has gotten it right," Staver said. "We've done a lot of research on the laws and they're dead-on in their decision."

One professor, however, said the Alabama Supreme Court's order was carefully crafted to avoid a direct confrontation with the federal ruling.

"While it appears that six and perhaps seven members of the Alabama Supreme Court agree with Chief Justice Moore's debatable view that the state courts are on equal footing with the lower federal courts when interpreting the U.S. Constitution, it is interesting to note that in the actual order portion of its decision, the state's highest court did not openly confront Judge Granade's ruling from a federal district court," said Jess Brown, Professor of Political Science and Justice Studies at Athens State University.

Judge Granade's order was directed to Attorney General Luther Strange and to the probate judge of Mobile County, but did not explicitly name the other Alabama probate judges, Brown said. "The order from Alabama's Supreme Court did not order the Probate Judge of Mobile County or AG Strange to undertake any actions contrary to the order issued by Judge Granade."

It would seem that if the Alabama Supreme Court felt confident in its argument of legal equivalency with Judge Granade, then it would have applied the ruling to Mobile's probate judge and to Strange, Brown said. "It will be interesting to see how the state's highest court will respond if Judge Granade expands or clarifies her order to cover all of the state's probate judges."

A group of civil rights organizations late Friday asked Granade to expand her order to include all 67 counties.

Groups that support gay marriage bans see Alabama's Supreme Court as leading the charge against federal orders.

"We applaud the Alabama Supreme Court for taking the courageous step of standing up to a blatant overreach by a federal judge and instead choosing to uphold the rule of law and the state's constitutional amendment protecting time-honored marriage," Tim Wildmon, President of American Family Association, stated in a press release.

"For far too long, we have seen errant federal judges unilaterally take the law into their own hands and strike down duly passed marriage protection provisions," Wildmon stated. "The Alabama Supreme Court has shown that it does not take kindly to one federal judge upending state law and overruling the voice of thousands of Alabama voters. We hope and pray that other courts will follow suit and uphold the law, rather than cave to orders to ignore it."

Other states

Staver said the Texas Supreme Court is now being asked to do the same thing in an almost exact scenario as to what happened in Alabama.

A federal district court judge ruled that Texas' ban on same-sex marriage is unconstitutional. Now, the Texas attorney general is asking that state's supreme court to issue an order halting the issuance of licenses.

In a number of states, attorney generals, governors, and legislators have filed legal responses and spoke out against the federal court orders.

But state courts have avoided legal collisions with federal judges on the issue out of comity - or respect - for the other, experts say.

Alabama's defiance of a federal order on gay marriage within its own state is new, said Carl Tobias, a professor at the University of Richmond School of Law who has followed the issue. "That hasn't happened anywhere else," said

For example, Tobias said, state judges in Arkansas and Kansas seemed to defer to the federal rulings rather than setting up a conflict between the two systems.

"The Alabama Supreme Court threw down the gauntlet this week and has challenged the lower federal courts to make their same-sex marriage rulings stick," said University of Alabama Law School Professor Ron Krotoszynski.

Although he agrees federal lower court decisions don't bind state courts, one reason most state courts around the nation may not have issued opposing rulings is because they don't want to put their state officials in a Catch-22, Krotoszynski said.

"I don't think North Carolina and West Virginia are any less conservative but they have not put their state officials in the same bind as Alabama has put its (probate judges)," Krotoszynski said.

The collision between federal and state court rulings in Alabama has set up a potential Catch-22 for judges, particularly Mobile Probate Judge Don Davis, Krotoszynski said.

If Davis was to refuse a marriage license to a same-sex couple that couple could sue, Krotoszynski said. Judge Granade could then get the case and she would likely order Davis to issue a license, he said.

Couples in other federal districts in the state would have to sue their local probate judges - one already has in Blount County - and wait for a decision. That decision would not likely be issued before a U.S. Supreme Court ruling expected in June that could settle the issue for the nation.

Krotoszynski questioned what would have happened in the civil rights movement in the 1960s if Alabama state courts had issued orders to disregard lower federal court orders on integration of schools, parks, or other facilities.

Pollitzer said that after a federal court in Florida ruled that state's ban on same-sex marriage unconstitutional, the state's attorney general - just as Attorney General Luther Strange did in Alabama - appealed to both the U.S. 11th Circuit and U.S. Supreme courts for orders staying the decisions.

And in both instances the 11th Circuit and U.S. Supreme Court denied Florida and Alabama's stay requests, he said.

"Florida accepted that but Alabama hasn't," Pollitzer said.

Alabama risks being labeled again as being intolerant to others who are different, which encourages young people to move away and makes it difficult to train and retain top talent, Pollitzer said.

"Right now marriage equality is the barometer for tolerance," Pollitzer said. "Singling yourself out as one of the most intolerant states in the country is not good for the economy."

Jen Jones, former communications director for Equality North Carolina, said GOP lawmakers in that state "grandstanded" in opposition to a federal court order on gay marriage. But North Carolina's Democratic attorney general did not appeal after the U.S. Supreme Court did not agree to review it, she said.

"Our state supreme court has not gotten involved in it at all," Jones said.

Alabama has set itself apart in issuing its order in spite of the federal court ruling, Jones said. "I don't think we have seen this in any other state, much less in the South."

While Alabama has been the most defiant, legal experts say the U.S. Supreme Court seems to be headed towards a ruling in June that will make same-sex marriage available in all states.

"Certainly Alabama stands alone in the degree to which it is resisting," said Randall Marshall, legal director for the ACLU of Alabama which has been involved in bringing federal lawsuits challenging the state's ban on same-sex marriage.

"Marriage equality is coming to Alabama and these current antics are a bump in the road to marriage equality and we're going to get there and we're not going to stop until we do."