A federal judge has put a temporary hold on her decision that overturned Alabama’s gay marriage ban, but indicated she will soon answer a key question: Must state probate judges issue marriage licenses to same-sex couples when the stay is lifted?
U.S. District Judge Callie V. S. Granade on Jan. 25 refused the Alabama attorney general’s request to put her ruling on hold until the U.S. Supreme Court takes up the issue of gay marriage later this year. However, Granade did issue a 14-day stay to give the state time to ask the 11th U.S. Circuit Court of Appeals for a lengthier delay.
Alabama Attorney General Luther Strange called the delay a “step in the right direction” because it will allow the state time to prepare appellate arguments and perhaps settle questions about the effect of the ruling. Advocates of gay marriage rights expressed disappointment but were confident they would ultimately prevail.
“While we’re disappointed that committed, loving gay and lesbian couples in Alabama will not be able to marry (Monday), we’re hopeful the final legal barriers will be overcome quite soon,” Human Rights Campaign Alabama director Ashley Jackson said.
Some hoping to get married swiftly expressed disappointment over the two-week hold.
Tori Sisson and Shante Wolfe of Tuskegee were prepared to camp outside the Montgomery courthouse all night Sunday in hopes of securing a marriage license first thing Monday from a judge who indicated he would be issuing them absent a stay.
“It’s aggravating. The judge ruled and everybody got so excited and now, this,” Sisson said.
The stay will expire Feb. 9 unless the court extends it.
Granade said within that time that she will issue a separate order clarifying the effect of her ruling on those seeking and issuing marriage licenses across Alabama.
Lawyers for the Mobile couple that brought the original suit requested the clarification after the Alabama Probate Judges’ Association advised judges that they should not issue licenses to same-sex couples.
The group maintained that ruling declaring the ban unconstitutional only applies to the parties in that case, and that it doesn’t require judges to issue marriage licenses to other same-sex couples.
“As probate judges, our duty is to issue marriage licenses in accordance with Alabama law and that means we cannot legally issue marriage licenses to same sex couples,” Monroe County Probate Judge Greg Norris said.
Some judges disagreed with that view and indicated they were prepared to issue licenses on Monday.
David Kennedy, an attorney for the plaintiffs in the case, said the judges’ association needed to “embrace reality” that the ban had been struck down.
Granade had ruled on Jan. 23 that Alabama’s statutory and constitutional bans on gay marriage were in violation of the U.S. Constitution. That ruling was the latest in a string of victories for same-sex marriage advocates around the Deep South. Still, the judge’s order reverberated in a state considered one of the Bible Belt’s most socially conservative, drawing praise and disbelief from some and scorn from others.
The ruling striking down the marriage ban came out of a case filed by Cari Searcy and Kim McKeand of Mobile. The couple said the ban prevented Alabama from recognizing their 2008 California marriage and Searcy as a parent to the son they had together. McKeand gave birth to the child in 2005, but the court’s rejected Searcy’s adoption petition because the couple was not legally married.
Strange’s office had sought to put Granade’s order on hold until the U.S. Supreme Court rules. The state argued there would be widespread confusion if couple’s got married, but the marriages were later ruled invalid.
Granade said it was inappropriate, in her view, to continue to delay.
“As long as a stay is in place, same-sex couples and their families remain in a state of limbo with respect to adoption, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance and many other rights associated with marriage,” she wrote.