Federal judge in Alabama orders gay-marriage licenses be issued

By Matthew Teague and Michael Muskal

Los Angeles Times/Sacramento Bee

02/12/2015 3:01 PM

A federal judge on Thursday ruled that a Mobile probate judge must issue marriage licenses to same-sex couples, a decision that advocates hope will set a precedent across Alabama.

After listening to about 30 minutes of arguments from each side, U.S. District Judge Callie Granade called a recess then quickly issued her ruling backing same-sex couples who had been denied licenses by probate judges. Some of the judges had followed an order by Alabama Chief Justice Roy Moore not to issue the licenses despite federal rulings that gay marriage should be allowed.

Four same-sex couples had sought action against Mobile Probate Judge Don Davis, who had refused to issue them marriage licenses.

“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 judge wrote.

“I am overjoyed. We are no longer second-class citizens,” said Robert Povilat, who was expecting to quickly seek a marriage license.

“I am speechless. I’ve never been happier in my life,” said husband-to-be Milton Persinger.

Couples packed the probate court hallway, and applauded their lawyers as they entered.

Heather Fann, Birmingham-based attorney for several couples, said she hoped the ruling would be clear elsewhere in the state.

“We hope and expect that the remaining probate judges across the state of Alabama will understand the import of this decision,” she said.

Alabama has been in a state of confused matrimony for much of this week.

The U.S. Supreme Court, in a ruling Monday with two dissents, refused to grant a stay that would have temporarily blocked same-sex marriages. A day earlier, Alabama’s Chief Justice Moore ordered the state’s probate judges not to issue marriage licenses to same-sex couples.

Probate judges in 22 of the state’s 67 counties have been issuing marriage licenses and hundreds of same-sex weddings have been performed. But in 45 counties, judges have refused to issue the licenses to gays or have shut down their marriage license operations in keeping with Moore’s order.

Randall Marshall, lead attorney for the American Civil Liberties Union, representing several gay couples, opened his argument by quoting a press release issued by the defendant Judge Davis.

“He says he wants ‘guidance from the court,”' about how exactly to issue marriage licenses to same-sex couples, said Marshall, adding that the ACLU and the plaintiffs want the same thing.

Moore was not required to appear in court and Marshall said the jurist had “created a chaotic interference.”

Michael Druhan, the lead attorney representing Davis, said the probate judge only wanted a clear direction. The lawyers compared Davis to a soldier in a Vietnamese rice paddy who has stepped on a land mine.

“If he stands there a sniper is going to shoot him in the head, and if he moves the mine is going to blow him to pieces,” Druhan said.

Judge Granade last month overturned the state’s ban on same-sex nuptials as violating the U.S. Constitution but stayed her ruling until Monday to give the state time to prepare. The U.S. Supreme Court is scheduled to deal with the issue of same-sex marriage this term.

Moore on Thursday insisted he would continue to resist efforts to implement same-sex marriage in his state, even if the U.S. Supreme Court, as expected, rules in favor of gay marriage later this year.

“If it’s an unlawful mandate you can refuse to mandate it. You can dissent to the United States Supreme Court,” Moore said in a testy interview with CNN’s Chris Cuomo on “New Day.”

“I will follow the law as I interpret it,” he said.

Moore is personally opposed to gay marriage and argues that the federal courts cannot overturn the popular will expressed in a 2006 vote in Alabama to limit marriage to a man and woman. The amendment passed with 81 percent of the vote.

“That’s not the federal law. What you’re confusing is law with the opinion of a justice,” Moore told Cuomo. “What one lone federal judge says is not law.”

Moore also characterized the federal judge’s ruling that overturned the state’s ban as an “attempt by the federal court to control the state,” which he called a “federal intrusion into state sovereignty.”

Both arguments have been rejected by the federal courts in the past. For example, many parts of the South unsuccessfully argued that states’ rights should trump federal civil rights actions during the 1960s. States’ rights were also a principal point of contention leading to the Civil War.

Moore has made a career of challenging federal court mandates. He came to prominence as an Etowah County judge in the 1990s when he refused to remove a 18-by-24-inch plaque of the Ten Commandments from his courtroom wall.

After riding conservative support to win a seat on the state Supreme Court, he had a 4-foot-tall, nearly 3-ton monument to the Ten Commandments installed in the high court’s rotunda in the middle of the night.

That prompted lawsuits over the separation of church and state. A federal judge ordered Moore to have the monument removed, and the U.S. Supreme Court refused to hear his appeal. Moore was removed from office by an ethics panel two years later, in 2003, for defying the federal court order.

But he remained popular among Alabama conservatives and won a six-year term on the court in the 2012 election, defeating two Republican challengers.

Thursday’s decision is expected to cascade to other counties where judges have been reticent.

“It has been frustrating because we’ve done everything right, but the door is still closed,” said attorney Christine Herandez, who was representing a group of same-sex couples at the hearing. She told the Los Angeles Times that she visited the Mobile County probate office and “the door is literally closed.”

Many Alabamians don’t appear to mind. The nonpartisan Public Religion Research Institute polled the nation about gay marriage last year. In most of the country, 54 percent were in favor and 38 percent opposed. But in Alabama, those numbers were more than reversed: 38 percent in favor, 59 percent opposed.