Being a probate judge in Alabama today is a tough job, at least until the Supreme Court eventually weighs in on the legality of same-sex marriage.
Probate judges are trapped between whether to follow a federal judge's order to begin issuing marriage licenses to same-sex couples and an order from Alabama Chief Justice Roy Moore to defy the federal ruling and refuse to issue the licenses,
The Wall Street Journal reports.
Alabama probate judges have been wavering — on Monday, 54 of the state's 67 counties had refused to issue the licenses, but by Wednesday, only 43 remained steadfast, waiting to see how the state-federal court battle eventually will play out, the state
Human Rights Campaign reports.
A hearing is scheduled on Thursday before U.S. District Judge Callie Granade in Mobile on whether to force state judges to comply with her earlier ruling legalizing same-sex marriage in Alabama.
Same-sex marriage advocates have asked Granade to order Judge Don Davis of Mobile County probate court to issue licenses, and hope that if she issues such an order, it will apply to all of the state's probate judges,
The New York Times reports.
Moore, who was removed from office after he refused an order to remove a Ten Commandments monument from the state court building in 2003, but was later re-elected, said in his letter to probate judges, "I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them. I would advise them that the issuance of such licenses would be in defiance of the laws and Constitution of Alabama," the Journal notes.
Moore has said he will accept a Supreme Court ruling but not lesser federal court rulings, and told the Journal that "lower federal court rulings aren't controlling precedents in our state court system."
President Barack Obama weighed in on the question, saying: "My sense is that the Supreme Court is about to make a shift, one that I welcome, which is to recognize that, having hit a critical mass of states that have recognized same-sex marriage, it doesn't make sense for us to now have this patchwork system,"
BuzzFeed News reported.
To date, 37 states allow gay marriages.
The Supreme Court declined to stay Granade's ruling and Elmore County Judge John Enslen told the Times: "Those seven justices went out of their way to slap Alabama. We've got the highest federal court siding with the District Court. The ballgame's over."
The Supreme Court is expected to issue a ruling settling the matter once and for all, likely by June,
the Times reports.
Judge Clarence Thomas said in a dissent that the Supreme Court "looks the other way as yet another federal district judge casts aside state laws," and added, "this acquiescence may well be seen as a signal of the court's intended resolution of that question.
"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."
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