MOBILE, Ala. — A federal judge on Tuesday said she will consider whether to require a local official to issue marriage licenses to gay couples, a day after dozens of counties refused to comply with a ruling that legalized same-sex marriage in Alabama.
U.S. District Judge Callie V.S. Granade, who last month struck down the state’s same-sex marriage ban, set a hearing on the new matter for Thursday in Mobile. Lawyers for about a dozen couples have asked Granade to clarify that her previous ruling applies to the probate judge in Mobile County, where couples were turned away when they sought marriage licenses Monday.
Gay rights advocates hope a favorable decision by Granade, who was appointed by President George W. Bush, will force other probate judges around the state to fall in line. More than 40 of these judges refused this week to give licenses to gay couples. The advocates are also looking for Granade’s ruling to serve as a repudiation of Roy Moore, the chief justice of the state supreme court who had called on local officials to ignore the federal ruling making gay marriage legal.
“We need Judge Granade to give some specific instructions to our local probate judge to clear up the misunderstanding,” said Heather Fann, a lawyer for several of the couples.
After Granade struck down Alabama’s prohibition on same-sex marriage last month, she put her ruling on hold until Monday to give supporters of the ban a chance to appeal. Early Monday, the U.S. Supreme Court announced it would not block the marriages, clearing the way for Alabama to join 36 other states and the District of Columbia in allowing gay unions. The high court is slated to hear arguments in April over whether there is a constitutional right for gay couples to marry nationwide.
Hundreds of gay couples were able to get licenses in several pockets of the state, ranging from the urban areas of Birmingham, Montgomery and Huntsville to the smaller community of Etowah, Moore’s home county, gay rights groups said. But they said at least 200 couples have been turned away in a majority of counties, where probate judges either shuttered their marriage license windows or specifically rejected same-sex couples.
The stalemate eased somewhat on Tuesday, with probate judges in about 10 counties who had refused to issue licenses changing course and opening their doors to everyone. Among those places was Elmore County, just outside the capital Montgomery.
John Enslen, the probate judge there, said he decided not to issue marriage licenses on Monday after receiving a letter late Sunday from Moore, who had written to all probate judges ordering them not to issue marriage licenses to gay couples despite the federal ruling.
Enslen said he changed his mind later in the day Monday after reading the U.S. Supreme Court opinion, leading him to believe that same-sex marriage will probably become legal across the nation. “I’ve always believed in the rule of law, and I was going to follow my sworn oath to uphold the Constitution of the United States,” he said.
But he wasn’t happy about it. Enslen said he opposes same-sex marriage; and while he will issue licenses, he will stop performing wedding ceremonies for anyone, heterosexual or homosexual. He said he has officiated at more than 300 weddings a year since taking office in 2013 and will miss that part of his job. “I very much enjoyed doing heterosexual marriages . . . but the joy is lost,” he said.
Although Enslen is willing to issue licenses to same-sex couples, none came seeking one Monday or Tuesday, he said.
In Mobile, scene of the most high-profile confrontation on Monday, crowds gathered for a second day on Tuesday to press the probate judge, Don Davis, to open the marriage license window. About 30 minutes after the scheduled opening, the chief of staff for Davis came out to tell the group that the window would remain closed until a court clears up what Davis has called conflicting opinions from the state and federal judiciary. Davis has sought clarification from the Alabama Supreme Court.
“For now, we’re going to maintain the status quo,” the aide, Mark Erwin, told the crowd.
That provoked an angry outburst from John Humphrey, one of the plaintiffs whose case prompted Granade to strike down Alabama’s same-sex marriage ban.
“How long are you going to spend all this taxpayer money to pay people to sit back there and do nothing?” Humphrey demanded.
Erwin declined to answer.
Milton Persinger, 47, and Robert Povilat, 60, remained silent. The two had come early Monday in hopes of being the very first couple married in Mobile County. They returned Tuesday to take the two chairs that had been set up for them by well-wishers who wanted them to achieve that milestone.
The delay was particularly painful for Povilat, whose previous long-term relationship — 11 years — ended with his partner’s death. The two were unable to marry. “I’m in love again,” he said, putting his arm around Persinger. “I don’t ever want to be told ‘no’ again.”
Ronald Krotoszynski, a professor at the University of Alabama School of Law, said there could be “a lot of political upsides” for some of the probate judges who have balked at giving marriage licenses to gay couples. These judges are elected locally and may worry about backlash from voters opposing same-sex marriages.
“It’s a function of them being political actors,” he said. “And again, most of them are not lawyers as well.”
Mark Berman in Washington contributed to this report.