MONTGOMERY, Ala. — Alabama began issuing marriage licenses to same-sex couples Monday after the U.S. Supreme Court denied the state’s request to extend a hold on a federal judge’s earlier ruling.

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.

“It is great that we were able to be part of history,” 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 a letter from Alabama Chief Justice Roy Moore, who ordered the state’s probate judges Sunday not to issue marriage licenses to gay couples.

The outspoken social conservative told judges that a federal judge’s decision striking down the state’s ban on same-sex marriage was not binding on state courts and that it 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 at least a half dozen other counties have said they won’t issue marriage licenses to gay couples: Covington County, whose county seat is Andalusia; Elmore County and Wetumpka; Marengo County and Linden; Morgan County and Decatur; Pike County and Troy; and Washington County and Chatom.

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, and couples that have been waiting decades to access equal marriage under the law should not have to wait a single day longer,” 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.

U.S. District Judge Ginny 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 8:45 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.

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 Gov. Robert 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.

In addition, Moore claimed that some probate judges’ decision to stop issuing same-sex marriage licenses was a sign of the “confusion” that Granade’s order was creating. The chief justice also said that new marriage licenses issued by the Alabama Department of Public Health last week were in “contradiction to the public statements of Governor Bentley to uphold the Alabama Constitution.”

Moore’s letter suggested that Bentley would be responsible for enforcement of the chief justice’s order.

The governor said Monday that he will not take any action against probate judges who issue same-sex marriage licenses.

“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 Montgomery-based 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.”

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

Source: Freedom to Marry

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