Federal Judge Sets Hearing in Alabama on Same-Sex Marriage

MOBILE, Ala. — A day after a federal ruling legalizing same-sex marriage took effect in Alabama, a federal judge set a hearing that could determine whether resistant local probate judges must grant licenses to gay couples. At the same time, some officials who had refused to issue the licenses, in compliance with a state judicial ruling, reversed course.

The probate judges are caught between conflicting signals from the state and federal judiciaries. State law does not require these judges to be lawyers, yet they are being called on to consider constitutional matters involving the interplay of federal and state authority. Generally they deal with matters like adoptions, guardianships and name changes.

Judge Greg Norris of Probate Court in Monroe County, president of the Alabama Probate Judges Association, was one of the judges who changed course. On Tuesday, he sent an email to his colleagues in other counties, explaining his position, but not, he said, urging them to do the same.

Judge Norris said he would not personally perform same-sex marriages. “The law says I may perform them, and I just don’t want to do it,” he said. “I’m going to follow the law to the best of my ability.”

Another probate judge who changed positions, John Enslen of Elmore County, explained in a Facebook post that if the federal court ordered judges to issue marriage licenses to same-sex couples, any judge who refused might have to pay damages and lawyers’ fees to aggrieved same-sex couples.

The confusion began Monday, the effective date of a ruling by Judge Callie V. S. Granade of Federal District Court in Mobile that Alabama’s ban on same-sex marriage is unconstitutional. On Monday morning, the United States Supreme Court turned down a request by state officials to stay that ruling, pending appeals.

But on Sunday night, Alabama’s chief justice, Roy S. Moore, had ordered probate judges not to grant marriage licenses to same-sex couples. Many judges obeyed that order and refused to issue marriage licenses to gay couples on Monday.

Lawyers who challenged the state’s ban, and many legal scholars, argue that the law is clear that a federal court order trumps the direction of Chief Justice Moore.

By Tuesday afternoon, more probate judges were issuing licenses; those refusing were in 44 of Alabama’s 67 counties, down from 54 on Monday, according to a tally kept by the Human Rights Campaign, a gay rights group.

Among those resisting was Judge Don Davis of Probate Court here in Mobile County, the second-most populous county in the state. This made him the primary target of same-sex marriage advocates who asked Judge Granade to order him and his aides to issue the licenses. A hearing is scheduled for Thursday. Advocates hope that an order against Judge Davis would apply to other refusing judges.

On Monday, dozens of would-be spouses and their supporters lined up at the Mobile County Courthouse seeking licenses. But on Tuesday, just six same-sex couples gathered. The marriage license window was still closed.

“There won’t be anything going on,” Mark C. Erwin, the Probate Court chief of staff, told the couples. “Obviously you can stay, but we must maintain the status quo.”

That angered John Humphrey, who had arrived to marry his partner, James Strawser; they are plaintiffs in one of the suits that produced Judge Granade’s ruling.

“How long do they expect taxpayers to sit behind these closed shields until ordered by the federal judge to make this happen?” he shouted, to applause from the others waiting.

President Obama, in an interview with BuzzFeed News on Tuesday, predicted that the Supreme Court would recognize that same-sex marriage should be legal in all 50 states.

“My sense is that the Supreme Court is about to make a shift, one that I welcome, which is to recognize that — having hit a critical mass of states that have recognized same-sex marriage — it doesn’t make sense for us to now have this patchwork system,” Mr. Obama said.

On Monday, lawyers for Judge Davis petitioned the Supreme Court of Alabama for guidance regarding “the scope and the effectiveness” of Chief Justice Moore’s administrative order. It showed what a difficult position Judge Davis — and all of the probate judges in Alabama — had been put in.

The filing said Chief Justice Moore’s order had been called into question by the United States Supreme Court’s action, and that it was likely the federal judge, Judge Granade, would “shortly exert personal jurisdiction” over the matter.

In Calhoun County, in the northeast quadrant of the state, Judge Alice K. Martin was following Chief Justice Moore’s order and declining to issue marriage licenses to same-sex couples. In a phone interview, Judge Martin said that her employees were giving same-sex couples applications for licenses, but that they were not processing them.

“My reading of the order that was issued by Justice Moore is that it is directed to probate judges and their agents or employees, and it is a direct order to us,” she said. “That is something I’m going to follow until something tells me otherwise.”

But in a sign of how delicate the situation is, Judge Martin declined to elaborate on her decision. “I think it’d be inappropriate for me to comment on this, because it’s undecided,” she said.

Judge Martin also declined to share her personal opinion on same-sex marriage, and said it did not play into her decision. She said her office had been prepared to issue same-sex marriage licenses until Chief Justice Moore’s order.

Judge Steven L. Reed of Montgomery County Probate Court, the first black elected to that position, said his decision to issue marriage licenses seemed “clear cut” based on Judge Granade’s order. But Judge Reed, a Democrat, spoke of how the civil rights era gave him a “heightened respect for federal rulings.”

He said he was also wary of Chief Justice Moore’s arguments about federal overreach. To Judge Reed, these were “codes” and “dog whistles” reminiscent of segregationist arguments tapping a vein of thought here that “goes back to the Civil War.”

Judge Enslen of Elmore County, who reversed course on the licenses, said in an interview that granting licenses was not even a judicial function. Therefore, he argued, Chief Justice Moore did not have any power over it.

But the most persuasive element in changing his mind, he said, was the Supreme Court’s decision, by 7 to 2, not to temporarily block Judge Granade’s decision legalizing same-sex marriage in the state. Judge Enslen, a lawyer for more than 40 years and a Republican, said he disagreed with the Supreme Court’s action but had to be guided by it.

“Those seven justices went out of their way to slap Alabama,” he said, sending a message that they saw little chance of Judge Granade’s decision being reversed.

“We’ve got the highest federal court siding with the District Court,” he said. “The ballgame’s over.”

A version of this article appears in print on February 11, 2015, on page A15 of the New York edition with the headline: Federal Judge Sets Hearing in Alabama on Same-Sex Marriage.