Alabama Supreme Court Chief Justice Roy Moore issued an administrative order this morning declaring that the state’s ban on issuing marriage licenses to same-sex couples will remain in effect until an order from a higher court specifically requires them to lift it.
As Moore argued, since the Supreme Court’s Obergefell ruling only considered bans on same-sex marriage from four states — Kentucky, Michigan, Ohio and Tennessee — it doesn’t apply to Alabama. A federal court has to go through each of the other states with bans on same-sex marriage one by one and instruct each of them that their bans are invalid.
Moore’s actions have already caused at least one county, Mobile, to stop issuing marriage licenses altogether out of confusion as to whether it is mandatory or illegal for them to issue marriage licenses to same-sex couples alongside straight couples. However, at least one other probate judge has indicated that he thinks Moore is being petty and desperate, and that his order doesn’t have a legal leg to stand on:
— Steven L Reed (@stevenlouisreed) January 6, 2016
It’s hard to imagine that Moore thinks this will end in any way other than embarrassment for him. He’s tried to massively resist marriage equality in his state a few times already, and he’s come up empty every time. Gays and lesbians have been getting married in Alabama for nearly a full year now, so even if he can throw a temporary wrench in his state’s works for now, it’s not like he can un-marry all of the couples that are currently enjoying full marriage rights.
According to Buzzfeed‘s Chris Geidner, however, a federal court already issued an injunction earlier this year — which it reiterated in a clarification following the Obergefell ruling — that amounted to the very kind of court order Moore says is required in order to overturn Alabama’s ban on same-sex marriage. As Geidner explained:
There was no mention in Moore’s order of the federal case overseen by U.S. District Court Judge Callie Granade that has challenged the Alabama ban. In that case, Granade in May 2015 issued a preliminary injunction striking down the amendment and act referenced by Moore in his administrative order. The order applied to all probate judges in the state because it was the result of a class action lawsuit that included all probate judges as the defendant class but was put on hold pending the outcome of the Supreme Court’s Obergefell case.
After the Obergefell decision was issued, Granade issued a clarification order on July 1, 2015, noting that “the preliminary injunction is now in effect and binding on all members of the Defendant Class.”
So it isn’t even clear what Moore is waiting for in this case. Short, perhaps, of the National Guard.