When Alabama Chief Justice Roy Moore forbade probate judges throughout the state from issuing marriage licenses to same-sex couples, gay rights advocates held their collective breath. If heeded, Moore’s order would have effectively outlawed same-sex marriage in Alabama, since only probate judges are authorized to issue licenses in that state. But would these judges actually listen to Moore? Or would they ignore the chief justice’s attempt to go rogue and continue to follow federal law?
On Thursday, the Montgomery Advertiser arrived at the conclusion that most judges were simply ignoring Moore. Out of 67 county probate courts, just three had changed their practice following Moore’s order, refusing marriage licenses to all couples, gay or straight. Meanwhile, a significant majority of probate judges kept issuing licenses to all comers. One such judge, Sharon Michalic, explained that “it was my understanding the order that was issued by the US Supreme Court back in June was binding”—reflecting a far better understanding of the Supremacy Clause than her boss.
But the Advertiser also uncovered something pretty troubling: Roughly a dozen probate courts have been quietly pulling a Kim Davis for months, turning away all couples to avoid having to license the gay ones. Their argument is simple: Alabama law states that probate judges “may” grant marriage licenses—not that they “must” issue them. Thus, anti-gay judges argue, they’re under no legal obligation to hand out licenses in the first place.
That might be a correct statutory interpretation of Alabama law. But it poses serious constitutional issues about the government’s ability to deny couples access to a fundamental right. I asked Greg Lipper, an attorney for Americans United for the Separation of Church and State, whether he thought the judge’s stonewalling would pass muster. Short answer: absolutely not.
“As Obergefell made clear,” Lipper told me, “marriage is both a Due Process and an Equal Protection right. This means that governmental bodies cannot both require a license to get married but then refuse to issue that license. As with the conduct by Kim Davis, the probate judges who are refusing to issue licenses are likely violating the Due Process Clause (depriving people of the right to marry), Equal Protection Clause (doing so in order avoid issuing licenses to same-sex couples), and Establishment Clause (withholding a critical governmental service on religious grounds).”
Why, then, haven’t these anti-gay probate judges been hauled into federal court like Kim Davis? Because nobody has challenged them in court. Lipper and Americans United are currently searching for a plaintiff to challenge the probate judge’s tactics. Until they find one, significant swathes of Alabama will still be untouched by Obergefell.
