The situation in Alabama is a tad confusing, owing to the uncertainty regarding who has to listen to whom when it comes to allowing same-sex marriages to proceed in the state.
Much of the chaos stems from the fact that three different judicial authorities — a federal judge, a state Supreme Court justice and the U.S. Supreme Court — have all said different things. Meanwhile, the Alabama attorney general on Monday told probate judges that he cannot tell them what to do in response to the confusion and suggested they seek help elsewhere.
Here is a basic summary of where things stand:
1) A federal judge said that same-sex marriages could begin in Alabama by Monday unless the U.S. Supreme Court stepped in.
2) Roy Moore, chief justice of the Alabama Supreme Court, said Sunday night that probate judges do not have to issue marriage licenses to gay couples.
3) The U.S. Supreme Court said it would allow marriages to proceed in Alabama.
Adding to the confusion here is the way Alabama’s judiciary is structured. All judges and justices in the state of Alabama are elected by their court’s jurisdiction; the only exception is municipal court judges, who are appointed by the government of their municipality. The U.S. Supreme Court decision issued Monday allowing marriages to proceed came in response to a request from Luther Strange, the Alabama attorney general.
Yet in his order Sunday, Alabama Chief Justice Moore said the probate judges in Alabama who issue marriage licenses don’t report to Strange, a member of Alabama’s executive branch. Instead, he wrote that they “fall under the direct supervision and authority” of Moore, who is head of the state’s judiciary branch.
Strange acknowledged the strange setup Monday. He issued a statement criticizing the U.S. Supreme Court’s decision — a decision that bore his name — even as he admitted that he still did not oversee the state’s marriage process.
“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates,” Strange said. “The Chief Justice has explained in a public memorandum that probate judges do not report to me. I advise probate judges to talk to their attorneys and associations about how to respond to the ruling.”
He also told state agencies with questions about the case to direct their questions to a third Alabama official: Gov. Robert Bentley (R), who had said he wanted same-sex marriage delayed until after the U.S. Supreme Court considers the larger issue of gay marriage this spring.
Still, even as he was noting that his office did not actually have direct involvement in the anticipated flurry of marriage activity Monday, Strange said he was not happy with the decision.
“I regret the Supreme Court’s decision not to stay the federal district court’s ruling until the high court finally settles the issue this summer,” he said. “In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.”