Renewed gay marriage ban in Ala. debated
"I absolutely agree with his reasoning behind why [Moore] is doing what he's doing," said Nick Williams, probate judge in rural Washington County and a former Southern Baptist pastor. Moore "has every right to issue administrative orders when the court system seems to be in chaos."
Moore issued an order Jan. 6 stating Alabama's 68 probate judges "have a ministerial duty not to issue any marriage license contrary to" the state's ban on same-sex marriage.
In his order, Moore implied the U.S. Supreme Court's Obergefell v. Hodges ruling in June, which declared same-sex marriage bans unconstitutional, applied only to Michigan, Kentucky, Ohio and Tennessee -- the jurisdiction where the case originated. Moore cited federal court rulings since Obergefell finding the case did not "directly invalidate" same-sex marriage bans in Nebraska and Kansas.
"An elementary principle of federal jurisdiction," Moore wrote, is that "a judgment only binds the parties to the case before the court." Alabama's Supreme Court has yet to decide whether it will apply the U.S. Supreme Court's reasoning to Alabama, he wrote.
In the meantime, Moore stated, probate judges should not authorize same-sex marriages. The halt, he said, is designed to bring temporary resolution to "the apparent conflict between the decision of the Alabama Supreme Court" in March 2015 to uphold a state gay marriage ban "and the decision of the United States Supreme Court in Obergefell."
Moore issued a similar order in February 2015, contradicting a federal judge's ruling the previous month that Alabama's same-sex marriage ban was unconstitutional.
Williams, who has not issued a marriage license to anyone since the Obergefell ruling, told Baptist Press marriage "is a states' rights issue" and "federal courts are overstepping their boundaries" in declaring same-sex marriage legal nationwide.
In September, Williams, along with Elmore County Probate Judge John Enslen, filed an "emergency petition for declaratory judgment and/or protective order" asking Alabama's high court to "prevent the imprisonment and ruin of their state's probate judges who maintain fidelity to their oath of office and their faith" by refusing to issue same-sex marriage licenses.
The following month, former Alabama Baptist State Convention President John Killian coauthored an op-ed article on AL.com asking Alabama's Supreme Court to rule on Williams' petition.
Killian, pastor of Maytown (Ala.) Baptist Church, co-wrote with Eunie Smith of the Eagle Forum of Alabama, "Alabamians elected justices to the Alabama Supreme Court with confidence that they would judge rightly in the fear of God, in step with the Constitution of the United States and the Alabama Constitution, and representative of the traditional values that Alabamians cherish. We anxiously await their decision.
"Duty to God, the preservation of our constitutional republic, and the future of families and children require no less than a prompt and resolute decision in this case," Killian and Smith continued. "The Alabama Supreme Court should act immediately to protect the sincerely held religious beliefs of our citizens and the sanctity of the institution of marriage -- as adopted by 81% of Alabama voters. They should not leave the citizens of Alabama to wonder, 'Where is the Supreme Court of Alabama?'"
Moore referenced the op-ed by Killian and Smith in his order. Killian was not able to reply to BP's request for comment before its publication deadline because he was out of the country.
Opposing Moore in a Jan. 6 statement were Alabama's two chief federal prosecutors. U.S. Attorneys Joyce White Vance of the Northern District of Alabama and Kenyen Brown of the Southern District of Alabama expressed "grave concerns" about Moore's order.
"Government officials are free to disagree with the law, but not to disobey it," Vance and Brown said according to NPR. "This issue has been decided by the highest court in the land and Alabama must follow the law."
AL.com reported Jan. 6 that probate offices in at least three counties were "refusing to distribute marriage licenses to same-sex couples in [the] wake of" Moore's order. The Associated Press reported Jan. 7 that at least one of those offices had begun reissuing same-sex marriage licenses along with an additional county probate office that initially was undecided on how to proceed.