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Amid Controversy, Same-Sex Marriage Is Legal in Ala.

By Mark Wilson, Esq. on February 09, 2015 | Last updated on March 21, 2019

Alabama was the source of a good bit of controversy surrounding same-sex marriage last week, after a federal judge declared the state's law prohibiting same-sex marriage unconstitutional. Right after that, however, the Alabama Supreme Court's Chief Justice Roy Moore issued his own order telling state judges and employees not to recognize same-sex marriages or issue licenses.

Moore's conflicting order led to questions about who trumps whom when it comes to federal trial courts and state supreme courts, but the U.S. Supreme Court put the issue to rest by refusing to review the case.

What's going on down in Alabama?

Same-Sex Marriage Is Constitutional -- Maybe

On January 23, a federal trial judge in Alabama struck down Alabama's same-sex marriage ban as unconstitutional. The state refused to allow one of the women in the case to adopt the other woman's son because it didn't recognize their marriage as valid.

Citing to recent same-sex marriage decisions, including the U.S. Supreme Court's 2013 ruling in U.S. v. Windsor, Judge Callie V.S. Granade concluded that Alabama's law violated the Equal Protection Clause of the U.S. Constitution and ordered the state to no longer enforce the ban.

Granade's order set the stage for Alabama to become the 37th state to permit same-sex marriage -- except that, on February 3, Alabama Supreme Court Chief Justice Roy Moore issued a memo to state probate court judges (who are in charge of marriages) indicating they weren't bound by the federal court decision, which Moore said was contrary to state law. On February 8, he ordered probate judges and state employees not to recognize same-sex marriages. Legal scholars tend to agree that Moore's opinion doesn't override a federal judge's opinion.

Moore is no stranger to making controversial decisions. He was removed as chief justice in 2003 when he refused to obey a federal court order to remove a Ten Commandments monument from outside the courthouse, but Alabama voters returned him to office in 2012.

The Supremes Decide Not to Weigh In

The U.S. Supreme Court implicitly affirmed Granade's order on Monday, when it refused to grant an emergency petition by Alabama's attorney general to stay Granade's decision, which would have suspended the issuing of marriage licenses in the state. Justices Thomas and Scalia dissented, arguing that the state law should have been stayed to allow a federal appellate court to weigh in. The dissent also took time to criticize the Court's recent practice of not staying a federal appeals court's order when it finds a state law unconstitutional.

With the U.S. Supreme Court out of the picture, Alabama counties began issuing marriage licenses -- well, most of them, anyway. According to The New York Times, some Alabama courts protested the decision by not conducting any marriages at all.

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