MOBILE, Alabama — The same federal judge who struck down Alabama’s same-sex marriage ban last month has ordered a probate judge to begin issuing marriage licenses to gay and lesbian couples. The action, marriage equality advocates hope, will settle days of confusion across the state over whether same-sex couples can receive marriage licenses in all of Alabama’s 67 counties.
“Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage,” wrote U.S. District Judge Callie V.S. Granade, a President George W. Bush appointee, in an eight-page order Thursday. Last month, Granade struck down Alabama’s same-sex marriage ban in a ruling that took effect on Monday.
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“If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage,” Granade continued. “This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.”
The order came just hours after a brief federal hearing over whether Davis, the probate judge of Mobile County, was required to issue marriage licenses to same-sex couples. Though the U.S. Supreme Court on Monday cleared Granade’s January ruling in favor of marriage equality to take effect, Davis, along with a majority of probate judges in the state, continued to refuse marriage licenses requests from same-sex couples.
That’s because late Sunday, Alabama’s top judicial officer, state Supreme Court Chief Justice Roy Moore, sent out a letter ordering probate judges to continue acting in accordance with Alabama’s ban. Because no probate judge was listed as a defendant in the lawsuits that led to Alabama’s ban being overturned, Moore argued, Granade’s January ruling was not binding on any of those judges who issued marriage licenses.
Michael Druhan, the attorney representing Judge Davis, argued in Thursday’s hearing that his client was like a man standing on a land mine in Vietnam — one move either way, and he could blow up.
“What we ask for is guidance on how he should act,” Druhan said of Davis. “It seems to us at this point, that he’s got two different court systems he’s dealing with.”
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Meanwhile, Randall Marshall, legal director at the American Civil Liberties Union of Alabama, argued that both state and federal law compelled probate judges in general, and Judge Davis in particular, to grant marriage licenses to all couples.
“It’s not [Roy Moore’s] order that compels probate judges,” Marshall said. “It’s the U.S. Constitution.”
Moore overstepped his authority as administrative head of probate judges with his directive Sunday, Marshall claimed.
“He didn’t order the probate judges, for example, to utilize the new Alabama Department of Public Health forms … that would have been an administrative order,” Marshall said. What Moore did was issue “a substantive order about what the law is,” he said — something the Alabama Constitution doesn’t allow.
Plaintiffs and their attorneys were optimistic outside the U.S. District Court for the Southern District of Alabama Thursday. Marshay Safford said she felt “confident, overwhelmed and positive” following the hearing. However, marriage equality opponents who attended Thursday’s hearing hardly seemed ready to back down.
“The U.S. is not in charge of deciding what marriage is,” said Dean Young, a former congressional candidate and ally of Roy Moore’s. “Marriage is one man and one woman, no matter what the U.S. says.”
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Thirty-two percent of Alabamians support same-sex marriage, according to a new public opinion data poll released this week — well below the national average. But marriage equality advocates were still confident they’d overcome those attitudes
“It’s not up to what they think anymore,” said Toni Quinones, who was camped outside the closed probate office in Mobile — one of several counties that shut down its marriage license department altogether this week out of confusion. Quinones is planning to be maid of honor when Safford, one of the plaintiffs, marries her same-sex partner.
“This is all just a standoff,” continued Quinones. “It’s going to happen. They’re going to get married. I will stand here with them while they get married. There’s no doubt about about that.”
“That’s why she’s our maid,” Safford said.
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.