Alabama justices: Until high court rules, we're in charge

Birmingham, Ala. (AP) — The Alabama Supreme Court has made itself an outlier in the judicial march legalizing same-sex marriages in the United States, drawing rebukes from gay rights advocates and evoking comparisons to Alabama's defiance of federal authorities during the civil rights movement.

The court set up a showdown with a Mobile, Alabama, federal judge this week when it ordered officials in the state to stop issuing same-sex marriage licenses pending a U.S. Supreme Court decision later this year on whether gays and lesbians have a fundamental right to marry.

The Alabama ruling contradicts U.S. District Judge Callie "Ginny" Granade, who declared in January that Alabama's constitutional ban on same-sex marriage violates the U.S. Constitution.

"Even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history," said Shannon Minter, legal director of the National Center for Lesbian Rights.

Alabama wasn't the first state where a federal trial or appeals court declared same-sex marriages legal, but the state justices made Alabama the only state to push back in advance of the U.S. Supreme Court settling the matter.

The justices' decision had quick results: By Wednesday afternoon, gay rights advocates said they could not find one of Alabama's 67 counties where a same-sex couple could get a marriage license. Before the ruling, 48 counties had issued licenses in compliance with Granade's earlier declarations.

The Alabama justices don't dispute that the nation's highest court will have the final say. But absent that ruling, the justices reasoned, they remain the ultimate authority on applying the U.S. Constitution to a state law. "State courts may interpret the U.S. Constitution independently from, and even contrary to, federal courts," they wrote in a decision that described "traditional" marriage as "the fundamental unit of society."

Minter, the attorney who represented gay couples who initially challenged Alabama's ban, said the state justices showed "callous disregard" for their rights.

Dean Lanton said he and his partner, Randy Wells, had planned to wed in Birmingham on Aug. 12, the anniversary of their first date, but now might have to get married out of state because of the decision.

"It was a punch in the gut. It was out of the blue," said Lanton, 54. "It's just Alabama politics, deja vu from the 1960s."

University of Alabama law professor Ronald Krotoszynski said the Alabama justices are technically correct in asserting their authority in the case. The U.S. Constitution actually doesn't say whether state courts must adhere to federal court rulings. It simply created U.S. Supreme Court and authorized Congress to create other federal courts as necessary.

But Krotoszynski said the particular circumstances still make the Alabama action surprising, particularly given that the 11th U.S. Circuit of Appeals in Atlanta and the U.S. Supreme Court itself declined Alabama's earlier requests to delay Granade's order until after the high court rules this year.

Many legal observers have interpreted those refusals as the court telegraphing its intention to rule in favor of same-sex marriage advocates.

"Does the (Alabama) court have the power to do this? Yes," the professor said. "Was it wise for the court to exercise its power this way? I'd say no. ... This is just not a standard kind of move in the inter-relationship between state and federal courts."

Same-sex couples will likely appeal up to the U.S. Supreme Court if necessary to block the latest state supreme court ruling, said Ben Cooper, chairman of Equality Alabama. "It's important to understand that this is not nearly the end of this," he said.

Montgomery County Probate Judge Steven Reed, a Democrat who was among the first to comply with Granade's order, said he would likely join an appeal.

John Enslen, Reed's colleague in neighboring Elmore County, however, praised the Alabama justices. He wrote on his Facebook page that he is "saddened for my nation that the word 'marriage' has been hijacked by couples who cannot procreate."

Then there are the county officials who aren't advocating a position — they're just tired of the legal roller coaster.

"It's very frustrating," said Probate Judge Leon Archer in rural Tallapoosa County. "I had done made up my mind we were going to issue the licenses and I thought that was it. And I think that is going to be the ruling of the U.S. Supreme Court in June."

By Jay Reeves and Bill Barrow, Associated Press. Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The Gayly – March 5, 2015 @ 11am.