U.S. Supreme Court

SCOTUS won't block gay marriages in Alabama; Thomas decries 'cavalier attitude' toward states

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The U.S. Supreme Court has refused to block gay marriages in Alabama, putting some probate judges in a quandary.

The U.S. Supreme Court on Monday refused to stay a federal judge’s ruling that overturned the state’s gay-marriage ban. Now the state’s probate judges have to decide how to respond to an order issued Sunday night by Alabama Chief Justice Roy Moore that bars the judges from issuing marriage licenses to same-sex couples. The New York Times and the Los Angeles Times have stories.

Moore’s order contends federal court opinions serve only as “persuasive authority” and don’t bind Alabama state courts.

Some probate judges in Birmingham and Montgomery were issuing same-sex marriage licenses in defiance of Moore’s order, the stories say. But judges in Bibb County were abiding by Moore’s order, the Los Angeles Times says.

Two U.S. Supreme Court justices–Clarence Thomas and Antonin Scalia–said they would have granted Alabama’s stay request. Thomas’ dissent (PDF), joined by Scalia, noted that the U.S. Supreme Court agreed in January to consider the constitutionality of gay-marriage bans. Thomas cited other cases in which stays were issued and said the court should have followed suit in the Alabama case, Strange v. Searcy.

“Rather than treat like applicants alike,” Thomas wrote, “the court looks the other way as yet another federal district judge casts aside state laws without making any effort to preserve the status quo pending the court’s resolution of a constitutional question it left open in United States v. Windsor,” the 2013 Supreme Court decision that struck down a federal law denying federal benefits to married gay couples.

“This acquiescence may well be seen as a signal of the court’s intended resolution of [the gay-marriage] question,” Thomas continued. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this court to pretend that it is.

“Today’s decision represents yet another example of this court’s increasingly cavalier attitude toward the states.”

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