Is Same-Sex Marriage Legal in Alabama?

By Christopher Coble, Esq. on January 07, 2016 | Last updated on March 21, 2019

Six months after the Supreme Court granted same-sex couples the constitutional right to marry, whether same-sex couples in Alabama can get marriage licenses remains an open question. That's because Alabama Supreme Court Chief Justice Roy. S. Moore, either unconvinced by the United States Supreme Court's ruling or unaware of the supremacy clause, has, for the third time, ordered probate judges in the state to cease issuing marriage licenses to same-sex couples.

Is his order valid? And will Alabama probate judges follow it?

I Fought the Court and the Court Won

We've been down this road before with Chief Justice Moore. Back in January of 2015, a federal court struck down Alabama's same-sex marriage ban as unconstitutional. Days later, Moore issued his own edict, telling probate judges they weren't bound by the federal court decision (they were) and to not recognize same-sex marriages. In response, a federal judge reiterated the unconstitutionality of the ban and again ordered Alabama judges to issue marriage licenses to same-sex couples.

Then, in March of 2015, Justice Moore got the rest of the Alabama Supreme Court to join his quixotic quest and the court as a whole issued an opinion ordering probate judges to again cease issuing same-sex marriage licenses. Then, a few months later in June, the highest court in the land decided Obergefell v. Hodges, granting same-sex couples nationwide the right to marry. And that should have been the end of it.

I Fought the Court (Again)

But Alabama has a long and proud history of defying federal civil rights law, so here we are. Moore's order yesterday cited a conflict between federal and state court rulings, writing, "[t]his disparity affects the administration of justice in this state." His solution was to order all probate judges to follow the Alabama Supreme Court decision.

In response, the probate court in Mobile County stopped issuing marriage licenses to any and all couples, while a judge in Montgomery County called the order a "sad" and "pathetic" "charade" and promised to ignore it.

And the Court Will Win (Again)

The law is pretty clear on how conflicts between state and federal courts are to be resolved. Article VI, Section 2, of the U.S. Constitution states the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land." That means that rulings from federal courts, including and most especially the Supreme Court, prevail over any conflicting or inconsistent state court rulings.

This may seem like nothing more than political posturing from a religiously conservative judge, the order has real world impacts for same-sex couples. Instead of simply exercising their constitutional right to marry, same-sex couples in Alabama will likely need to file a federal lawsuit to force state probate judges to recognize that right, delaying what should be for everyone their happiest day.

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