Some counties in Alabama began issuing marriage licenses to same-sex couples after the U.S. Supreme Court refused to intervene Monday.
The U.S. Supreme Court's decision was an "indecorous" move that seems to preordain the court's decision later this year on whether the Constitution provides a right for such marriages, Justice Clarence Thomas wrote in dissent. Joined by Justice Antonin Scalia, Thomas said Monday's action was in keeping with its recent actions, but at odds with its traditions.
The high court refused to delay a federal judge's Jan. 23 ruling that struck down Alabama's gay-marriage ban. Alabama Supreme Court Chief Justice Roy Moore told officials late Sunday to defy the court order as it took effect.
The legal confusion led to mixed outcomes as couples arrived at courthouses in Alabama.
The U.S. Supreme Court has agreed to hear cases from Michigan, Ohio, Tennessee and Kentucky, where marriage restrictions were upheld. The cases will be argued in April and decided by the end of June.
Thomas said the court should have retained the status quo in states until then.
"This 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," Thomas wrote, referring to the court's 2013 decision striking down part of the federal Defense of Marriage Act.
That decision did not provide an answer as to whether states may define marriage as only between a man and a woman.
"This acquiescence may well be seen as a signal of the Court's intended resolution of that question. This is not the proper way to discharge our ... responsibilities. And, it is indecorous for this Court to pretend that it is," Thomas wrote.
"Today's decision represents yet another example of this Court's increasingly cavalier attitude toward the states," he added.
The majority of the court did not give a reason for denying the stay, and it should not be interpreted to mean there was a 7-2 vote to deny Alabama's request.
Some justices may have thought Alabama should receive a stay, but did not join Thomas' dissent. All that is clear from Monday's action is that a majority of the nine justices turned down the request, and only Thomas and Scalia gave reasons for their actions.
Thomas said a trend was developing in which the court allowed lower court decisions to proceed without proper oversight.
"In this case," Thomas wrote, "the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months."
That did make Alabama's request for a stay different from the others.
The U.S. Court of Appeals for the 11th Circuit, which covers Florida, Alabama and Georgia, denied the stays even though the appeals court has not considered the merits of district judge decisions striking the bans in Florida and Alabama.
When the Supreme Court agreed to let gay marriages proceed in Florida, it had not agreed to take the cases from other states and decide the constitutional questions.
Thomas said that in "respectfully" dissenting from the decision denying the stay.
"I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question," he wrote.
Since October, the Supreme Court has repeatedly refused to hear appeals from lower court rulings allowing same-sex marriages. Largely as a consequence of those rulings, the number of states with same-sex marriage expanded to 37 from 19, along with the District of Columbia, in just four months.
Gay marriage arrived in the Deep South state to mixture of joy, calls for defiance and confusion, as some probate judges indicated they were uncertain whether to issue the licenses or not after the directive of Moore, the state Supreme Court chief justice.
In Jefferson and Montgomery counties, home to Birmingham and the state capital, respectively, judges allowed same-sex couples to wed. At least seven of Alabama's 67 counties dispensed marriage licenses to gay couples.
About 200 couples were able to get them in Huntsville, at least 100 in Jefferson County and large numbers in Montgomery County, said Amanda Snipes, campaign manager for Southerners for the Freedom to Marry.
Others were turned away: Probate judges in at least 27 of Alabama's 67 counties weren't issuing marriage licenses to gays and lesbians, according to Susan Watson, executive director of the American Civil Liberties of Alabama, which supports same-sex marriage.
At the Montgomery County Probate Court, a crowd of about 50 lined up to cheer a score of couples who had arrived for licenses. As each pair emerged, they were handed carnations and daisies.
Across the street, which was blocked off by police, protesters held a sign that said "He who sins is a slave of sin. Whose slave are you?"
The state had sent out revised versions of its forms last week, with the words "bride" and "groom" replaced by "Spouse 1" and "Spouse 2." But Monday's proceedings were cast into confusion after Moore late Sunday tried to stop the weddings.
The Republican, 67, who in an earlier term in the elected position defied a federal judge's order to remove a Ten Commandments monument from a public building, said dissent among probate judges had produced unacceptable "confusion and disarray" that he was empowered to halt.
Watson, the ACLU director, said counties were responding by not issuing marriage licenses, only accepting applications or turning away same-sex couples. Shelby County, a Birmingham suburb, decided not to issue licenses to any couples, gay or straight, because of the conflicting orders. In rural Washington County, Probate Judge Nick Williams said he wouldn't allow gays to wed.
In Mobile County, the state's second-most-populous, the marriage license office was closed, and lawyers filed a motion asking U.S. District Judge Callie Granade to hold the probate judge, Don Davis, in contempt. She refused, saying that Davis was not a party to the litigation.
In Florence, in the northwest corner of the state, Judge James Hall of Probate Court explained to Beth Ridley and Rose Roysden that he would not issue a license, saying, "I'm caught up in the middle of this." The couple, their eyes brimming with tears, said they would drive to Birmingham and marry there.
In Birmingham, one of the gay-marriage licenses went to Dee and Laura Bush, who said they have been together for seven years and have five kids between them.
"I figured that we would be the last ones -- I mean, they would drag Alabama kicking and screaming to equality," said Laura Bush.
Gov. Robert Bentley said he was disappointed that the courts had overturned his state's ban of gay marriage, but added that he would not take action against any probate judge who issues a license to a same-sex couple.
The governor noted that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil-rights marchers were attacked and beaten in Selma, Ala.
"I don't want Alabama to be seen as it was 50 years when a federal law was defied. I'm not going to do that," Bentley said. "I'm trying to move this state forward."
In January, Granade, appointed by President George W. Bush, determined that Alabama's statutory and constitutional bans on gay marriage were unconstitutional, but she put her order on hold to allow the state time to appeal her ruling.
Alabama's probate judges have spent the past two weeks wrestling with how to handle the change. The Alabama Probate Judges Association initially said Granade's decision didn't require them to issue licenses for gay couples, only to be contradicted by the judge.
Moore pressed local officials to engage in a showdown with U.S. authorities.
On Feb. 3, he sent a 27-page memorandum to probate judges, telling them that they didn't have to recognize same-sex couples. On Sunday, he issued his order "to ensure the orderly administration of justice."
After the Ten Commandments dispute, Moore ran unsuccessfully for governor in 2006 and 2010. In 2012, he was elected to return to the high court. There has been speculation he might make a third run for governor.
In an interview Monday, Moore, a Baptist who has called marriage "a divine institution ordained by God," was unapologetic.
"Eighty-one percent of the voters adopted the Alabama Sanctity of Marriage Amendment in the Alabama Constitution. I think they want leaders that will stand up against an unlawful intrusion of their sovereignty, and that's what we're seeing."
He asked what would stop judges from redefining marriage in other ways, including potentially allowing polygamy.
"But this is not what this case is about," he said. "This case is about the federal court's violation of their own rules."
He noted that the defendant in the case before Granade is not the probate judges, but Alabama's attorney general, Luther Strange, who has no control over marriage licenses. When that issue was raised last month, Granade issued a clarification that her ruling applied to state officials in general.
In his order to probate judges, Moore cited the state constitutional amendment prohibiting gay marriage and said that he, as chief administrator of the state courts, has authority over the probate courts. In this and other cases, he has argued that the state courts are not bound by the federal court's order.
Strange, the attorney general, said in a statement, "In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court's anticipated ruling on the legality of same-sex marriage."
Strange made it clear he would not get involved in whether probate judges should follow Moore's order.
The state probate judges association has urged officials to act in accordance with the U.S. Supreme Court ruling.
Information for this article was contributed by Robert Barnes, Sandhya Somashekhar and staff members of The Washington Post; by Margaret Newkirk, Greg Stohr, Andrew Harris and Darrell Preston of Bloomberg News; by Alan Blinder, Richard Perez-Pena, Richard Fausset, Kalyn Wolfe and staff members of The New York Times; by Kim Chandler and Jay Reeves of The Associated Press; and by Michael Muskal, Timothy M. Phelps and Matthew Teague of the Los Angeles Times.
A Section on 02/10/2015