Tammy Brown

Probate Judge Tammy Brown is seen in this 2014 file photo.

Confusion reigned Monday as county probate judges across Alabama were divided over whether to issue marriage licenses to same-sex couples after Chief Justice Roy Moore filed an order Sunday to halt the practice.

Some probate judges said they will stop issuing marriage licenses, others will only issue marriage licenses to heterosexual couples and others will issue licenses to all couples. Probate judges in a half dozen counties said they wouldn’t issue marriage licenses to same-sex couples including Covington, Elmore, Marengo, Morgan, Pike and Washington counties.

Cullman County Probate Judge Tammy Brown joined Autauga County in choosing not to issue marriage licenses but accepted applications Monday. Last week, Brown told The Cullman Times she didn’t have a choice in the matter and was “obligated to uphold the constitution.”

Brown said Monday that Moore’s administrative ruling advising probate judges to ignore the federal court ruling led her to seek clarification on the matter.

“No one can give you a definite answer,” she said. “Do I go against the federal ruling or the state law?”

Brown said until she can get a clear legal answer, her office will accept marriage applications for anyone who wants one. However, there’s no timeline when her office will begin issuing licenses. She said she hopes to start back issuing marriage licenses as soon as possible.

Brannon P. Denning, Cumberland School of Law’s associate dean and constitutional law professor, said there should be no confusion over what the law is now going forward.

“Elected officials are sworn to uphold the U.S. Constitution despite conflicting state constitutions,” Denning said. “We have a ruling from a federal district judge, the 11th Circuit let it stand and now the U.S. Supreme Court has ruled it will not block it. It’s pretty clear. The federal ruling is binding for state officials.”

The U.S. Supreme Court will hear oral arguments in April and is expected to issue a ruling by June regarding whether gay couples nationwide have a fundamental right to marry and whether states can ban such unions. Denning said he feels confident the high court will rule in favor of allowing same-sex marriages.

“The states (not allowing it) are going to have a very hard time articulating why they’ve banned it,” Denning said of the upcoming Supreme Court ruling. “Courts have ruled in the past that tradition and moral disapproval are not sufficient.”

In his order Sunday, Moore argued U.S. District Judge Callie V.S. Granade’s Jan. 23 ruling striking down the state’s Sanctity of Marriage Act did not apply to Alabama probate judges but rather the Alabama Attorney General Luther Strange since he was party to the suits.

He said probate judges who issue marriage licenses to same-sex couples could void pending cases in U.S. District Courts for the Northern and Middle Districts of Alabama, “thus undermining the capacity of those courts to act independently of the Southern District and creating further confusion and uncertainty as to the administration of justice within the state.”

Additionally, Moore’s order saidGov. Robert Bentley can “act using the legal means that are at his disposal” should a probate judge ignore his order and issue marriage licenses to same-sex couples. Probate judges fall under the judiciary.

Susan Watson, executive director of the ACLU of Alabama, said Monday that Moore had no authority to trump a federal court’s decision.

“By issuing his ‘order,’ he has done nothing but create confusion among the different probate offices across the state,” Watson said in a statement. “We respectfully ask probate offices to adhere to the federal ruling. In fact, they have sworn to uphold the U.S. Constitution which trumps state law in this matter.”

Watson said the ACLU had received several complaints about counties not issuing marriage licenses, and in spite of Moore’s order, Monday was still a victorious day.

Bentley said state officials should “follow the rule of law in Alabama and allow the issue of same sex marriage to be worked out through the proper legal channels” in a statement Monday.

“This issue has created confusion with conflicting direction for probate judges in Alabama, “Bentley said. “Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against probate judges, which would only serve to further complicate this issue.”

He also said he was disappointed “a single federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman.”

Alabama Attorney General Luther Strange joined Bentley in voicing disappointment with the U.S. Supreme Court’s decision to not intervene in his statement Monday,

“In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage,” Strange said.

He advised probate judges to talk to their attorneys and associations about how to respond to the ruling. He also encouraged any state agencies with questions about the ruling in Searcy and Strawser cases to contact the Bentley’s Office.

* Tiffeny Owens can be reached by email at towens@cullmantimes.com or by phone at 256-734-2131.

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