Many Ala. counties refuse to issue gay-marriage licenses

MONTGOMERY, Ala. — On a day where sadness, confusion and joy blended, same-sex couples went to get marriage licenses Monday after the U.S. Supreme Court denied Alabama's request to stop them.

Some were successful. Others found themselves caught in a legal fight between the federal courts and Alabama Chief Justice Roy Moore, who ordered probate judges Sunday not to issue licenses in defiance of a federal judge's ruling that struck down the state's ban on same-sex marriages.

Judge Alan King of Jefferson County Probate Court in Birmingham issued the first license to two women, making Alabama the 37th state where gays legally can wed. He then proceeded to issue several more licenses.

"I figured that we would be that last ones — I mean, they would drag Alabama kicking and screaming to equality," said Dee Bush, who has been with her partner, Laura Bush, for seven years. They have five children between them.

After receiving her license, she and her partner walked outside to a park where a minister was performing wedding ceremonies to cheers from crowds.

But not all counties went along with King, instead citing Moore's letter, which Gov. Robert Bentley declined Monday to enforce even as he expressed disappointment in the initial federal ruling.

The outspoken social conservative told county judges that a federal judge's decision striking down the state's ban on same-sex marriage was not binding on state courts and had caused confusion in the state.

Probate Judge Al Booth in Autauga County said his office will take applications for same sex marriages but won't issue licenses until he gets clarification.

"I have the man who runs this state's court system telling me not to issue marriage licenses for same-sex couples," Booth said. "I have the federal judiciary telling me I will issue marriage licenses to same-sex couples.

"I want to uphold my oath. But what law do I follow?" he said. "Which constitution do I uphold?"

Probate judges in as many as 44 Alabama counties have said they won't issue marriage licenses to gay couples, according to the Human Rights Campaign. Alabama has 67 counties.

Lawyers for Cari Searcy and Kimberly McKeand, one of the Mobile, Ala., couples who successfully challenged the state's same-sex marriage ban, filed a contempt motion against Mobile County's probate judge, Don Davis, after his office refused to issue licenses to the couple. U.S. District Judge Ginny Granade, who struck down the state's ban in two separate rulings in late January, had not ruled on the motion as of early Monday afternoon.

At least eight counties representing about 2 million people, almost 40% of the state's population, are issuing marriage licenses to same-sex couples, according to the Montgomery-based Southern Poverty Law Center.

Susan Watson, executive director of the ACLU's Alabama chapter, said her group is monitoring the situation.

"I would really think long and hard before defying a federal court order," she said.

Moore's action set up a showdown between the state's chief justice and the federal courts and won swift condemnation from lesbian-gay-bisexual-transgender rights groups. Legal Director Sarah Warbelow of the Human Rights Campaign called Moore's letter "a pathetic last-ditch attempt at judicial fiat."

"Absent further action by the U.S. Supreme Court, the federal ruling striking down Alabama's marriage ban ought to be fully enforced," the statement said.

Moore's six-page letter was issued hours before same-sex marriage was expected to become legal in Alabama.

"No probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975," Moore wrote. The named sections refer, respectively, to the state's 2006 constitutional amendment banning same-sex marriage, and the 1998 law doing so.

Granade struck down both the state's law and the constitutional amendment in two decisions Jan. 23 and Jan. 26, saying they violated same-sex couples' equal protection and due process rights under the 14th Amendment to the U.S. Constitution. Moore's order came as a stay of Granade's decision was set to expire.

In issuing licenses in Birmingham, King said he was abiding by Granade's order. The U.S. Supreme Court refused Monday to extend a hold on that order.

However, Moore has made it clear that he will not give same-sex marriage a smooth path in the state.

In Montgomery, Tori Sisson, a field organizer for the Human Rights Campaign, and Shante Wolfe, an artist, were married shortly after 9 a.m. CT outside the Montgomery County Courthouse Annex. The couple had camped out the night before to be the first same-sex couple here to be wed.

"It's exciting," Sisson said. "It's amazing. We're married."

At least three other same-sex couples — two men and two pairs of women — were married Monday morning here.

"It's really disheartening that he's taking so much energy to make all these statements when no one fought this hard when he got married," Sisson said Sunday.

Sisson's godmother, Karen Watson, married Sisson and Wolfe immediately after they received their license. Watson, whose wife, Audri Scott Williams, stood with her during the ceremony, considered it historic.

"It was like the feeling when Obama came into power," she said. "It was like, 'I get to see this in my lifetime.' "

Probate Judge Steven Reed of Montgomery County said Moore's order surprised him but did not affect his decision to issue licenses.

"For the chief justice to take that position, that was really something beyond the scope of his jurisprudence," Reed said. "For myself, it's doing the right thing. It's doing what I took an oath to do."

Following a flurry of legal victories for gay-marriage advocates in recent years, two-thirds of Americans now live in a state where same-sex marriage is legal. It remains banned in 13 of 50 states.

The Alabama action comes as the U.S. Supreme Court heads toward a potentially historic, nationwide ruling on the divisive social issue. Last month, the high court announced it would hear arguments on whether gay couples have a right to marry everywhere in America, and a decision is expected by late June.

Supporters crowded Monday around the doors of Montgomery's Courthouse Annex. A protester, David Day, appeared behind barricades, holding a sign saying "Jesus is the one who saves."

"There's a lot of people here," Day said. "It's a great way to share a message of Christ."

Most of those present shared the feelings of Courtney McKenny, director of religious education for Montgomery's Unitarian Universalist Church. Moore's order "made me want to be here more," she said.

"It's important to look at this from a legal side, not a biblical side," said McKenny, who holding up a sign that said, "Standing on the Side of Love."

Kelli and Lisa Day of Pike Road, Ala., who have been together 26 years, arrived at the courthouse with their four children, ages 1 to 14.

"We are already committed to each other, and we have a family," said Kelli Day, a lawyer. "It just means legal protection."

In letters sent to Bentley and the state's probate judges in the past two weeks, Moore argued that federal district and appellate courts have no binding authority on state courts. The state's chief justice, known outside Alabama for refusing a federal judge's order to remove a monument of the Ten Commandments from the state judicial building, repeated that argument in his Sunday letter.

"Neither the Supreme Court of the United States nor the Supreme Court of Alabama" has ruled on the constitutionality of Alabama's same-sex marriage bans, Moore said in his letter. The chief justice has not stated directly whether he believes a decision from the nation's high court authorizing same-sex marriage would be binding on the state.

Granade issued a clarification of her rulings a few days after they were issued, saying they applied to all state officials in Alabama.

Richard Cohen, president of the Southern Poverty Law Center, who has filed an ethics complaint against Moore over his public statements on same-sex marriage, accused Moore of "creating a crisis in our state."

"We urge the probate judges to follow the Constitution of the United States and issue marriage licenses when their offices open in the morning," a statement from Cohen said. "Chief Justice Moore has no authority to tell them to do otherwise."

Monday also had a handful of bittersweet moments.

Paul Hard, whose husband, David Fancher, was killed in an automobile accident just a few months after they married in 2011, walked to the Alabama Department of Public Health to correct his husband's death certificate. It listed Fancher as "never married," because of the state's ban on same-sex marriage.

When Hard made his way to the agency's Department of Vital Statistics, staff accepted his application as they would any transaction. State Registrar Cathy Donald came out to tell Hard about the processing of the form and later presented a corrected form to Hard.

"Getting David's death certificate was emotional," Hard said afterward. "Just to finally see the wording on there that at the time of his death he was married, and he was married to me, corrects a hurtful wrong.

"I've had my tears," he said. "I'm definitely done for now. I'm planning to be down with the people celebrating at the courthouse, and wish them the best. This is a good day."

Contributing: Marty Roney, The Montgomery (Ala.) Advertiser; The Associated Press

Source: Freedom to Marry