Confusion continues in Alabama as most judges refused to issue marriage licenses to same-sex couples following yesterday’s ruling by the US Supreme Court denying a stay of US District Court judge Callie Granade’s ruling on January 23, 2015 that the state’s ban on same sex marriage was unconstitutional and that marriage licenses must be issued starting yesterday. About a dozen of the 67 county probate judges issued licenses, another dozen denied licenses to just same-sex couples, while about 40 stopped issuing all licenses.

Some of the balking judges simply did not open their offices while others opened them for all business other than issuing marriage licenses. Of course, couples could go another county where licenses were being issued. The people who brought the original lawsuit filed a contempt motion against the judge who closed his office yesterday but this motion was denied yesterday by judge Granade, who said that no evidence had been produced that the judge had actually denied them a license.

I have to make a correction to yesterday’s post on this topic. I said that the US Supreme Court had ruled 7-2 to deny a stay. Actually, it simply denied the request for a stay without comment and all that it implies is that it had five votes to do so. The two who signed a dissent (Thomas and Scalia) clearly disagree so that leaves two justices whose stand we do not know.

In his dissent, Thomas made a good point.

Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.
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In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

In other words, he said that once the US Supreme court agrees to hear a case, it is the usual practice to maintain the status quo until it is resolved, so as to not have to retroactively undo decisions. As such, it should have stayed judge Granade’s decision, since it changed the status quo. He said that the fact that the court did not do so on this issue sends a signal that the court would likely agree with judge Granade’s ruling and does not expect it to be reversed. This is a hopeful sign but we should be cautious about being too optimistic with such a conservative court.

The chief justice of the state Supreme Court Roy Moore remains defiant in his opposition. This judicial standoff where state court judges defy a federal judge’s order is quite astonishing. The governor of Alabama has said that he is not going to act against those judges who issue licenses or those who deny it. If the US Supreme Court eventually rules that these bans are unconstitutional, and some judges continue to deny issuing licenses, then we could be faced with a nasty situation.