By Brandon Moseley
Alabama Political Reporter
On Monday, February 9, the Probate Judges of Alabama were forced by events to make the decision on whether or not to write marriage licenses for same sex couples. Citing a recent decision by US District Court Judge Callie Granade in Mobile, some Probate Judges offices issued marriage licenses to same-sex couples. Jefferson and Montgomery Counties were among the Probate Judges offices that issued the first same-sex marriage licenses in the history of the State of Alabama.
Most Alabama Probate Judges cited a direct order from Alabama Chief Justice Roy Moore (R) ordering them not to write marriage licenses to same-sex couples.
According to the Human Rights Campaign (HRC), as many as 53 of Alabama’s 67 Counties are refusing to issue the controversial same-sex marriage licenses. The HRC listed: Autauga, Baldwin, Barbour, Bibb, Blount, Butler, Calhoun, Cherokee, Choctaw, Clarke, Cleburne, Colbert, Conecuh, Coosa, Covington, Cullman, Dale, Dallas, DeKalb, Elmore, Escambia, Franklin, Geneva, Greene, Hale, Henry, Houston, Jackson, Lamar, Lauderdale, Lawrence, Lee, Limestone, Marion, Marshall, Mobile, Monroe, Morgan, Perry, Pickens, Pike, Randolph, Russell, Shelby, St. Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa, Walker, Washington, Wilcox, and Winston as counties that are, “Refusing to issue licenses to loving, committed same-sex couples.”
Alabama Governor Robert Bentley (R) wrote in a statement, “This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue. We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”
On Sunday, February 9, Alabama Chief Justice Roy Moore wrote, “The Probate Judges of Alabama fall under the direct supervision and authority of the Chief Justice of the Supreme Court as the Administrative Head of the Judicial Branch; and WHEREAS, the United States District Court for the Southern District of Alabama has not issued an order directed to the Probate Judges of Alabama to issue marriage licenses that violate Alabama law; and WHEREAS, the opinions of the United States District Court for the Southern District of Alabama do not bind the state courts of Alabama but only serve as persuasive authority,”….. “Neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act: NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT: To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama: Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama 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.”
Through the centuries most Christian Churches, like the Jews in the Old Testament, have viewed any homosexual act as a sin. In the Catholic Church, a homosexual act was viewed as a “mortal sin” i.e. an act like murder, rape, blasphemy, adultery, etc., so heinous, that to commit it even once could jeopardize one’s soul for eternity, unless repentance was asked for and given. States like Alabama adopted some of these Christian principles when the laws were written. Sodomy laws were written by the state in an attempt to limit conduct lawmakers deemed “immoral.”
In 2003, the US Supreme Court ruled 6 to 3 in “Lawrence versus Texas” that laws criminalizing homosexual conduct were unconstitutional. The Texas ruling effectively invalidated 13 other state anti-sodomy laws including Alabama’s. The ruling suddenly turned practicing homosexuals from being persons considered to be engaged in criminal conduct to a minority group like Blacks, Jews, Asians, or the disabled.
That ruling twelve years ago paved the way for subsequent rulings, including Judge Callie Granade’s, which claim that laws defining marriage as being exclusively between one man and one woman are discriminatory and unconstitutional.
Strict constructionists, like Chief Justice Moore, argue that the Constitution should be read like the writers at the time would have interpreted it. They argue that in the 1860s when the 14th amendment was written almost no one would have viewed homosexuals as an oppressed minority people and the writers of the 14th amendment, most of them practicing Christians, would never have intended for it to be interpreted it that way. Other jurists argue instead that the Constitution is an “evolving document” that should be read and interpreted in the eyes of modern thought.
Proponents of gay marriage argue that they are on the side of history and compare their battle to the Civil Rights movement of the ’50s and ’60s. Opponents scoff at that comparison and argue instead that issues like gay marriage and abortion should be decided by voters and state legislatures and not dictated by unelected federal judges passing arbitrary judgments from on high based on their evolving personal opinions. Chief Justice Moore denounced the controversial Granade ruling as, “judicial tyranny” in an open letter to Gov. Bentley.
The US Supreme Court will take up the issue of gay marriage in June; but Monday’s 7 to 2 ruling rejecting Alabama’s request to stay the Granade decision until that time does not appear to be a good sign for proponents of traditional marriage.