A pair of citizens groups in Alabama on Wednesday asked the state Supreme Court to order Alabama's probate judges to stop issuing issue marriage licenses to same-sex duos.
It's just the latest move in an escalating fight in Alabama over a lone federal judge's order that the state recognize same-sex marriage, overruling voters who approved an amendment to the state constitution defining the institution as the union of one man and one woman.
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The probate judges already have been ordered by Alabama Supreme Court Chief Justice Roy Moore to follow the state constitution and ignore the federal judge's ruling. Some have chosen, however, to follow the federal ruling and disobey Moore's administrative instruction.
Moore has told WND he's not backing down, and the U.S. Supreme Court has declined so far to step in directly, declining a request from the state to extend a stay in the case. The high court is scheduled to listen to arguments on the very issue in a few weeks.
The petition for a writ of mandamus – a request to force the probate judges to follow state instructions in the dispute – was filed by the Alabama Policy Institute and the Alabama Citizens Action Program.
According to the submission on Wednesday, "Chief Justice Roy S. Moore of the Supreme Court of Alabama entered an administrative order ruling that neither the Searcy nor the Strawser injunction is binding on any Alabama probate judge, and prohibiting any probate judge from issuing or recognizing a marriage license which violates the Marriage Amendment or the Marriage Act."
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The petition notes that several probate judges, including Alan King, Tommy Ragnald, Steve Reed and possibly others, have issued licenses.
The writ, the petition says, should command the judges not to issue the licenses because they "do not have discretion" to do it.
The petition states that the federal court injunctions don't apply to the probate judges, because they weren't part of the case and, therefore, are not subject to the order.
And, the petition argues, the defendant in the federal case was the state's attorney general, a member of the executive branch who is not authorized to issue marriage licenses. The judges are part of the judiciary, and the state constitution allows that the "executive shall never exercise the legislative or judicial powers."
The federal judge, Callie Granade, admitted the petition's point in a ruling earlier this week, the petition said.
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"Judge Granade herself was ultimately forced to concede this point in her order denying the Searcy plaintiffs' motion to hold Judge of Probate Don Davis in contempt for violating the Searcy injunction … the plaintiffs claimed that Judge Davis violated the Searcy injunction by not opening the marriage license division."
However, in denying the motion, Judge Granade "acknowledged that Judge Davis was not a party to the case, and was not ordered to do anything by the Searcy injunction."
Granade ruled: "Plaintiffs have offered no authority by which this court can hold Davis in contempt or order any of the relief sought."
The filing, from the nonprofit legal group Liberty Counsel was based on Moore's unusual weekend order.
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"Effective immediately," Moore ordered, "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 ... the Alabama Constitution."
Mat Staver, founder and chairman of Liberty Counsel, said many Alabama probate judges are "acting lawlessly."
"Alabama probate judges do not have discretion to issue marriage licenses to same-sex couples," he said. "Neither the Searcy nor the Strawser injunction requires Alabama probate judges to issue marriage licenses to same-sex couples.
Judge Roy Moore
"The only remedy to this lawlessness is mandamus relief, an order from the Alabama Supreme Court to command probate judges to perform their ministerial duty not to issue marriage licenses to same-sex couples," Staver concluded.
It was on Monday that WND reported Granade's conclusion that she couldn't find a probate judge in contempt for not granting same-sex marriage licenses.
"Judge Davis's obligation to follow the Constitution does not arise from this court's order," Granade said. "The clarification order noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law. However, no such action is before the court at this time."
While Granade ordered the state to change its constitution, Moore pushed back, pointing out that according to court precedent, state courts are not bound by the interpretations of a lower federal court.
He said Granade's Jan. 23 order is without constitutional basis and told his state's probate judges – the only ones who can issue marriage licenses – to follow the state constitution.
Moore told WND on Monday he's not backing away from the state court vs. federal court fight over marriage, because he believes constitutionally the residents of states are allowed to define the institution.
Granade's office refused comment.
The high court decision Monday not to extend a stay in Granade's order brought a dissent from Justice Clarence Thomas: "In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question."
WND reported when Moore said his probate judges should "uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability, So Help You God!"
He said his arguments focus heavily on dual sovereignty – the concept of a number of sovereign states coalescing to create a sovereign nation. The arguments include spelling out who has the responsibility for making what decisions.
"The right to enter into the institution of marriage, namely a union between one man and one woman, is established in history and law as a fundamental right. Although not enumerated in the Constitution, that right is retained by the people under the Ninth Amendment: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,'" he wrote.
Explained Moore: "The freedom to marry is an 'unalienable right.' The Declaration of Independence states: 'We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness …' Even Judge Granade's order, quoting Loving v. Virginia, 388 U.S. 1,11(1967), acknowledges that 'the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men' and women.' No court or other human authority should pretend to redefine that right. Such an enterprise would disregard the Bill of Rights contained in the United States Constitution as well as the Organic Law of our country," Moore said.
He continued: "Marriage has long been recognized as a divine institution ordained of God. According to the United States Supreme Court, the basic foundation of marriage and family upon which our country rests is 'the union for life of one man and one woman in the holy estate of matrimony.'"
