With some judges in Alabama refusing to follow a federal ruling that allowed same-sex marriage in the state, the erratic picture of marriage rights in Alabama mimics the map of the US as a whole. Thirty-seven states and Washington DC allow for same-sex marriage while the rest wait for a once-and-for-all federal ruling.
That decision is expected in less than five months, when the supreme court is due to rule on same-sex marriage cases from four states. While this situation is messy, there are some things we do know about same-sex marriage rights in Alabama and the US:
Where can same-sex couples get married in Alabama?
US district court judge Callie Granade struck down the state’s ban on same-sex marriage last month, and a 14-day hold on the order expired on Monday. So under federal law, same-sex couples should be able to get married anywhere in the state. Most courthouses, however, are no longer offering marriage licensing services, while others are refusing to sign licenses for same-sex couples.
In Mobile, Alabama, doors and windows were closed on Monday to people seeking these licenses, including the plaintiffs in the case that resulted in the marriage equality ruling. Granade on Thursday ordered the judge to conform to her earlier ruling.
Alabama governor Robert Bentley has said that he will not take action against probate judges who either obey or refuse to obey the order, ensuring that marriage rights in his state will be inconsistent from county to county until the US supreme court rules or a lower federal court forces the judges to allow the marriages. “When federal law is in conflict with state law, federal law wins out,” US president Barack Obama told Buzzfeed.
So if you are in Alabama and trying to marry somebody who happens to be of the same gender, and want to know where you can, call your local marriage licensing entity or this hotline.
Where does the US supreme court fit into this?
On Monday, just as the first same-sex marriages began in Alabama, the US supreme court said it would not extend a stay on Granade’s decision, ensuring that marriages could take place that day. The court voted 7-2 not to extend the stay. Justice Clarence Thomas wrote a fiery dissent in which he was joined by Antonin Scalia.
Thomas said the court’s decision “represents yet another example of this Court’s increasingly cavalier attitude toward the States”.
Thomas also criticized his fellow justices for not preserving the status quo until it rules on the same-sex marriage cases later this year. “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” said Thomas, who said it is not the “proper” way to act on the court’s constitutional responsibilities. “And, it is indecorous for this court to pretend that it is,” said Thomas.
Does this mean the supreme court is going to make same-sex marriage legal?
Douglas NeJaime, a law professor at UC Irvine School of Law, said that Thomas’s statement is consistent with other decisions that show that there is significant support on the court for a ruling in favor of same-sex marriage.
He said the court indicated its interest in this issue in October when it declined to hear appeals from five states. That decision to not act resulted in a sweeping expansion of same-sex marriage rights in the US.
“I don’t think it [Thomas’s decision] gives us much new information as much as it’s just confirmation of indications we had earlier,” NeJaime said. “Though it’s still a question that the court has to decide and I think it’s premature to draw conclusions simply based on this.”
And, of course, court watchers have gotten their predictions wrong before.
Why wouldn’t they rule that way?
That the court even agreed to take up the issue likely indicates that its four liberal justices have faith that they will be able to find a fifth justice to join them.
The swing vote to watch is justice Anthony Kennedy, who has cast the deciding vote in all of the court’s same-sex couple marriage rights cases. He authored the decision that struck down key parts of the Defense of Marriage Act in June 2013, but in this and other decisions used language that has left the issue open – which is part of the reason why the landscape for marriage rights has changed at an unexpectedly quick rate with the Doma decision.
Richard Levy, a constitutional law professor at the University of Kansas, said he wouldn’t want to give high odds in either direction about how the supreme court will rule on same-sex marriage.
“I think it’s likely to depend on Kennedy and I think Kennedy has sent somewhat mixed signals,” Levy said.
What about the states where same-sex marriage is still not legal?
Oral arguments for the supreme court case are not expected until April, but in the meantime, same-sex marriage rights could still expand to other states.
A decision from the US fifth circuit court of appeals could come down any day. That ruling could affect three of the 13 states where same-sex marriage is still not legal – Texas, Louisiana and Mississippi. Lawsuits in North Dakota, Nebraska and Georgia are waiting for a ruling. In Arkansas, South Dakota and Missouri, courts have ruled to strike down same-sex marriage bans, but the decisions have been stayed pending appeal in higher courts.
And four states – Tennessee, Kentucky, Ohio and Michigan – currently have their cases before the US supreme court and will have to wait for its ruling.
