Constitutional Law

Alabama chief justice orders probate judges not to marry gay couples; is it 'a George Wallace move'?

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Alabama Chief Justice Roy Moore has ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday when a federal court ruling striking down the state’s ban on gay marriage takes effect.

In the order issued on Sunday night, Moore declares that federal court opinions serve only as “persuasive authority” and don’t bind Alabama state courts. The New York Times and have stories; How Appealing links to additional coverage.

Moore said he has authority over probate judges as administrative head of the judicial branch, while the federal judge who overturned the gay-marriage ban had not issued an order directed at the probate judges.

David Kennedy, the lawyer for the plaintiffs in the federal court case, called Moore’s order “a George Wallace move,” referring to the former governor who stood in a university door in a failed bid to stop integration.

Some probate judges in the state already declared they would not issue marriage licenses to gay couples, or said they would stop performing marriages altogether. One probate judge who spoke with the New York Times indicated he was taking a middle ground. Judge Fred Hamic of Geneva County said he would issue marriage licenses, but would not perform weddings.

“I believe I would be partaking in a sin, and I sin every day, don’t get me wrong,” Hamic told the Times. “This is one sin I do not have to participate in, not that you have to participate in any sin.”

Ben Cooper, chairman of the board of the gay rights group Equality Alabama, said gay couples still planned to seek marriage licenses Monday morning. “If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable,” Cooper told the New York Times.

The Southern Poverty Law Center has said it filed an ethics complaint against Moore based on his prior comments about federal courts not binding state courts. Moore based his pronouncement partly on an Alabama decision on the duty to warn of hazardous conditions that rejected federal standards.

Moore was removed from the state’s top court in 2003 for refusing to obey a federal judge’s order that he remove a Ten Commandments monument he had installed in the courthouse. He was re-elected in 2012.

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