Forget about Kim Davis. Gay couples in Alabama are still locked in a battle that ended for everyone else with the Obergefell decision. Like many states, Alabama had a ban on gay marriage, called the Alabama Marriage Protection Act. In January 2015, a federal judge ruled the state’s ban on same-sex marriage was unconstitutional. It violated the Equal Protection and Due Process of couples wanting to marry.
In March of 2015, the ban was upheld—for now.
Alabama Will Not Abide By the Law
Shortly after the federal judge struck down the ban in Alabama, the U.S. Supreme Court made gay marriage legal with the Obergefell case. Alabama Chief Justice Roy Moore didn’t get the memo. He also didn’t get the memo about the Supreme Court being the highest court in the country.
The Court decides on cases. Those decisions apply to every state in the Union. Moore contends the Obergefell case doesn’t apply to Alabama. According to him, the ruling from state’s Supreme Court and the federal Court are conflicting.
Here’s his rationale:
- The Alabama’s same-sex marriage ban case is still pending. In other words, the Supreme Court hasn’t made a decision regarding Alabama yet.
- Obergefell only applies to states in the Sixth Circuit. These states include Ohio, Tennessee, Kentucky, and Michigan. Alabama is exempt from this ruling.
In January 2016, Moore issued an order to probate judges to stop distributing marriage licenses to same-sex couples. This has divided many probate judges in the state. Some are following Moore’s ruling and not issuing marriage licenses to same-sex couples. Others aren’t issuing any marriage licenses. Some are defying the order and issuing the licenses to same sex couples.
Moore can’t have it both ways. He can’t claim that the Supreme Court needs to rule on same-sex marriage when the federal government has spoken. State’s rights came out on the losing end of the same-sex marriage fight.
In the March ruling, the Alabama Supreme Court claimed it had the same right to interpret the U.S. Constitution as the federal Supreme Court. The Alabama Supreme Court went on to rule that the ban didn’t violate the couples’ due process and equal protection rights.
The Alabama Supreme Court claimed traditional marriage laws don’t discriminate based on gender. Men and women have an equal right to marry. They have the right to marry the opposite sex. The Court went on to base same-sex marriage on redefining what marriage is.
At that time, Moore wasn’t on the bench. He interpreted the difference between the Supreme Courts based on precedent. The U.S. Supreme Court issued its final injunction after the Alabama Supreme Court’s ruling. Thus, Obergefell wasn’t a precedent in that ruling. He claims decisions are only binding from the federal court if the decision is made prior to any state laws.
Obergefell is binding—for all states. It doesn’t matter if the Court ruled before or after state’s law was enacted.
What Happens to Couples Wanting to Get Married in Alabama?
Alabama’s probate judges aren’t the only ones stuck in the middle. Alabama couples wanting to get married in the state have two options. First, they can go to the counties currently issuing marriage licenses. Another option is to sue the probate judge refusing to issue the marriage license. If successful, a judge would order the probate judge to issue the marriage license. It’s similar to what happened in Kentucky with Kim Davis.
Alabamans still have the choice to get married outside of the state, if they want.
Moore Seeks Clarification, but Already Has It
After the U.S. Supreme Court decision, the state Supreme Court asked for clarification to determine how to proceed. The Court hasn’t given any clarification. However, no further clarification is required. The state’s ban is no more. Moore can’t claim state’s rights when every state must follow the law of the land.
Even if there was a conflict between the state and the U.S. Constitution, the states follow the Supreme Court’s decisions. Unfortunately for many straight and gay couples wanting to get married, Moore hasn’t gotten the memo yet. Obergefell applied to every state, not just the ones in the Sixth Circuit.