Day one of gay marriage in Alabama did not exactly go smoothly.

Monday began with a 7-2 decision by the U.S. Supreme Court to let a federal judge's order striking down the same-sex marriage ban take effect and ended with many probate judges vowing to fight or professing confusion.

When the dust settled, most probate offices had not issued licenses to gay couples, although the few that did represented most of the high-population counties. By AL.com's count, at least nine counties issued licenses.

Carl Tobias, a University of Richmond School of Law professor who has tracked same-sex marriage litigation across the country, said he does not believe any other state has resisted the federal court system as aggressively as Alabama. He said the closest analogy probably is Florida, where clerks across the state initially insisted that a judge's order striking down that state's ban applied only in one county.

"It never really culminated in this situation," he said, referring to Monday's wild day in Alabama. "The day came, and they were ready and everything went OK."

Ronald Krotoszynski, a professor at the University of Alabama School of Law, contrasted Alabama with Southern states under the jurisdiction of the Fourth U.S. Circuit Court of Appeals. When that appellate court ruled in favor of gay marriage, he noted, it involved only the state of Virginia.

"Yet, subsequent to that decision and order, every state in the Fourth Circuit, which encompasses the Carolinas, Maryland, Virginia, and West Virginia, has given full force and effect to the Fourth Circuit's constitutional ruling," he wrote in an email.

Tobias said other state attorneys general and governors have used every means available to contest rulings in the court system, ,but he added that none of them had a figure of the stature of Alabama Supreme Court Chief Justice Roy Moore who advocated simply ignoring federal court rulings.

Moore on Sunday ordered probate judges in all 67 counties not to issue marriage licenses to same-sex couples.

Many of them listened - some enthusiastically. Washington County Probate Judge Nick Williams, for instance, said: "I'm not worried about following the U.S. constitution."

Most metro counties comply



Most of the major metro counties - Mobile County being a major exception - handed out licenses to any couple who wanted them. And there were plenty of them, in large measure because so many probate offices in surrounding counties were not issuing them.

In Madison County, for instance, 65 gay couples obtained licenses, with

In Birmingham, the

In Montgomery County, in addition to the couples who purchased marriage licenses, Paul Hard put on his wedding ring and

Many probate judges tried to navigate a middle ground between Moore and the U.S. Supreme Court, telling the public that they temporarily have halted granting licenses to anyone while they reviewed the conflicting orders.

In Baldwin County, Probate Judge Tim Russell said he is morally opposed to gay marriage and no longer would perform wedding ceremonies. He also was not granting licenses on Monday but was accepting applications.

And then there is Mobile County, where Probate Judge Don Davis said nothing for most of the day but kept the marriage license windows closed. That prompted lawyers for plaintiffs Kim McKeand and Cari Searcy to ask Granade to hold him in contempt, which she declined to do, and to file a new lawsuit on behalf of 15 people who tried unsuccessfully to obtain marriage licenses Monday.

Attorneys Christine Hernandez and David Kennedy said they would seek an immediate order forcing Davis to comply. In addition to Davis, the new lawsuit also names Moore as a defendant - and Hernandez said she plans to drive to Montgomery to personally serve the chief justice, unless Davis starts issuing marriage licenses first thing in the morning.

The new lawsuit includes a request for an emergency order commanding Davis to comply with Granade's order striking down the same-sex marriage ban. It also seeks sanctions.

It is unclear whether Granade will rule on that today, whether she will convene a hearing or whether she will give the defendants a chance to submit written arguments.

Getting out of the marriage biz?



The decision by a number of probate judges to get out the marriage license business altogether raises another intriguing question - can a federal court force local officials to issue marriage licenses?

The basis of Granade's order had nothing to with a constitutional right to marriage. Instead, it cited the 14th Amendment's Equal Protection Clause - the state cannot treat one group of citizens differently from another.

Have probate judges found a loophole around that - treating everyone the same by issuing licenses to no one?

Krotoszynski, the University of Alabama law professor, pointed to a 1964 case in which the Supreme Court ordered Prince Edward County in Virginia to reopen public schools it had closed rather than comply with a desegregation order. Justice Hugo Black, an Alabama native, noted states have wide latitude in operating public schools.

"But the record in the present case could not be clearer that Prince Edward's public schools were closed, and private schools operated in their place with state and county assistance, for one reason and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school," he wrote. "Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional."

Krotoszynski suggested that the same logic would apply to probate judges deciding to stop issuing marriage licenses rather than grant them to gays.

Tobias, the Richmond law professor, agreed. "I think they're pretty similar," he said.

If some probate judges refuse to issue marriage licenses, couples could always drive to a county that does. Or, as one of the lawyers in the Mobile case pointed out, they could claim all of the rights and privileges of marriage by holding themselves out as married under the state common-law marriage system.

"I like the workaround," Tobias said. "But it's impractical."