The battle over same-sex marriage in Alabama is not over. Last night, Alabama Supreme Court Chief Justice Roy Moore ordered all probate judges to not issue marriage licenses to same-sex couples. A federal court had previously thrown out Alabama’s ban on same-sex marriage, with Monday being the first day couples could apply for licenses.
Moore’s decision sets up a huge showdown between federal courts and state courts. In the confusion, many probate judges are not issuing marriage licenses to same-sex couples across the state.
The case is turning into a Constitutional battle between state and federal courts. In the US, state law can not supersede federal law. However, there are currently no laws guaranteeing marriage rights to same-sex couples. The federal law prohibiting such marriages, the Defense of Marriage Act, was ruled unconstitutional in 2013. The Supreme Court is expected to rule on the legality of bans at the state level later this year.
Lower level courts have tossed out state bans in 37 states, including Alabama. Most have either given up the fight or appealed to a higher court, but few have caused the stir Alabama has. Chief Justice Roy Moore is at the heart of the controversy, something he has not shied away from in the past. Moore is of course most famous for his refusal to remove a 10 commandments statue from the state courthouse. That incident led to him being removed from office.
Most legal experts believe the Supreme Court will rule in favor of same-sex marriage later this year. It would be difficult to find legal justification of a ban at the state level if the court could not find justification for a ban at the federal level. Moore’s defiance appears frivolous. What remains unanswered is the level of fallout from the Chief Justice’s latest incident.