Alabama judge stakes out defiant stance against same-sex marriages

MOBILE, Ala. - On the day that same-sex unions became legal in Alabama, local officials in dozens of counties on Monday defied a federal judge's decision and refused to issue marriage licenses to gay couples, casting the state into judicial chaos.

Gay couples were able to get licenses in about a dozen places, including Birmingham, Huntsville, and a few other counties where probate judges complied with the judge's decision. The U.S. Supreme Court ruled early Monday that it would deny Alabama's request to put the marriages on hold.

But in the majority of counties, officials said they would refuse to license gay marriages or stop providing licenses altogether, confronting couples - both homosexual and heterosexual - with locked doors and drawn windows.

Many of the state's 68 probate judges mounted their resistance to the federal decision at the urging of the firebrand chief justice of the Alabama Supreme Court, Roy Moore. He is best known for refusing more than a decade ago to comply with a court order to remove a monument to the Ten Commandments from the state Supreme Court's offices.

In Mobile, about 10 gay couples who had expected to be granted licenses first thing in the morning found the marriage license window closed indefinitely.

"We're disgusted with it, but we're dealing with it," said Jim Strawser, 51, who with his partner, John Humphrey, had mounted the successful legal challenge against Alabama's ban on same-sex marriage.

A federal judge in Mobile ruled in their case last month that Alabama must allow gay marriages, striking down its ban and setting the stage for it to become the 37th state, plus the District of Columbia, to permit such unions and the second in the Deep South. The U.S. Supreme Court is scheduled to hear arguments in April over whether there is a constitutional right for gay couples to marry.

Gay rights supporters likened the actions of Moore and the probate judges to those of Alabama leaders who in the 1960s defied orders to desegregate schools.

"History is repeating itself," said Christine Hernandez, an attorney for one of the plaintiff couples in the case.

But some social conservatives cheered the actions of the defiant probate judges. Mat Staver, chief executive of the Liberty Counsel, said that the probate judges are not under the jurisdiction of the federal courts and therefore were not compelled to comply with the federal judge's order to allow same-sex marriages.

"I think the probate judges acted appropriately," said Staver, whose group is representing at least eight of the judges.

Their actions show that pockets of deep resistance to gay marriage remain despite the gains made by advocates, who have seen support for their cause spike nationally. Backing for same-sex marriage in Alabama stood at 32 percent in 2012, a smaller proportion than in all but two states, according to the Williams Institute, a think tank that studies gay issues.

About 40 percent of the state lives in counties that went forward with the same-sex unions, according to the Southern Poverty Law Center. Couples who ran into difficulties in their own counties were free to marry anywhere in the state.

In Mobile, the decision by probate judge Don Davis not to open the marriage license windows incensed the dozens of gay couples and supporters who had gathered there in hopes of celebrating a milestone moment.

Alabama Gov. Robert Bentley said Monday that he would not punish probate judges in the state who do or do not issue marriage licenses.

"This issue has created confusion with conflicting direction for Probate Judges in Alabama," Bentley said in a statement. "Probate judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue."

Some legal scholars said the probate judges are unlikely to prevail and faulted Moore.

Moore "may sincerely believe state law takes precedence over federal law," said Ronald Krotoszynski, a professor at the University of Alabama School of Law. "And if that's so, it's unfortunate because it's plainly wrong."

The U.S. Supreme Court rejected Alabama's request to stay the same-sex marriages until the justices rule later this year on whether there is a constitutional right to gay unions. Two justices, Clarence Thomas and Antonin Scalia, dissented, saying they would have granted the stay.

"I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question," Thomas wrote.