Here’s How Alabama Became the 37th State to Allow Same-Sex Marriage

Ethan Miller/Getty Images

Ethan Miller/Getty Images

The Supreme Court of the United States is heading toward a final ruling on same-sex marriage at the national level later this year. It’s been a long legislative journey to get here, with state courts taking on the issue across the U.S., appeals following appeals, and in some cases rulings at the state level being superseded by circuit court appeal decisions. This year, finally a more universal and decisive ruling will be given. But, until the ruling is made, Alabama, where appeals were put on hold given the upcoming ruling from SCOTUS, has not been taking the current ruling lying down — or at least some have not.

What did Alabama do in response and was it legal?

In Alabama, controversy arose after Alabama Supreme Court Chief Justice Roy S. Moore told probate judges not to issue same-sex marriage licenses, despite the ruling from U.S. District Court Judge Callie V. Granade this year that struck down the marriage ban within the state.

Justice Moore issued an order saying “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 … of the Alabama Constitution.” He went on to suggest that if probate judges issued licenses in spite of his directions, the Governor of the state of Alabama, Robert Bentley (R), would be within his power to punish said judges. Granade countered this, saying it was the legal duty of probate judges to issue these licenses.

Some probates chose not to give out licenses to any but heterosexual couples, while others refused to give out licenses at all until something was decided on their responsibilities. The legality of the matter was dependent on point of view. Some would argue that it’s not within Moore’s authority to make that sort of order and suggest punishment would follow. Others argue that Granade could only suggest probates follow the appealed decision to allow same-sex marriage, not order it. Joseph Smith, judicial politics expert with the University of Alabama, told The New York Times that Moore likely sees it as a legitimate role. “My guess is that is actually the way Roy Moore sincerely understands the federal-state relationship,” he said. “He’s also an elected official, and he knows who his constituency is.”

How did the Supreme Court handle this, and does it hint anything for the upcoming ruling?

Given how messy this could have been for the state of Alabama and couples within — especially given the issues it could bring up in other states as well — the Supreme Court stepped in and ordered that marriages of same-sex couples be allowed to continue unhindered. The court stepped in at the request of the Alabama Attorney General Luther Strange, who requested they intervene on a “federal injunction preventing him from enforcing several provisions of Alabama law defining marriage as a legal union of one man and one woman pending our consideration.” SCOTUS refused to allow the stay, forcing the state to issue licenses.

This begs the question from some: Is this a sign that Justices on the Supreme Court are leaning toward a pro-marriage ruling? It’s entirely possible it doesn’t tell us very much about what will happen in the upcoming ruling.

It may simply be a matter of simplifying current legal complexities across states until the court reaches a decision, given the fact that other states have sought to freeze the effects of a ruling until the court weighs in and have been forced to acknowledge marriages instead. That being said, not allowing the stay does suggest there is no strong feeling from the court that same-sex marriage will be ruled against. The dissent written by Justice Clarence Thomas (joined by Justice Antonin Scalia) strongly opposed the court’s not allowing Alabama its stay, saying the decision showed an “increasingly cavalier attitude toward the States,” and suggests that there will be strong conservative voices in the discussion in coming months.

Yet Thomas also targeted the majority ruling, saying “In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months … this acquiescence may well be seen as a signal of the court’s intended resolution of the question.” Time will tell with more certainty, but if a strongly pro-same-sex marriage message can’t be taken, it does seem that it leans more that way than the other.

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