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Lambda Legal to Alabama probate judges: Ignore Chief Justice Roy Moore

NEW YORK -- Lambda Legal today sent an open letter to the president of the Alabama Probate Judges Association and probate judges of counties that are not issuing licenses to same-sex couples urging them to disregard Alabama Chief Justice Roy Moore’s legally incorrect and unfounded Administrative Order and instead issue marriage licenses to same-sex couples and different-sex couples alike, after the U.S. Supreme Court rejected the state’s request for a stay.

Excerpt of the open letter (with citations omitted):

“The source of a chief justice’s authority to issue such administrative orders is the Alabama Supreme Court itself, and the Alabama Supreme Court has made explicitly clear that the actions taken by Chief Justice Moore on February 8th are not within his authority acting alone. James, a case involving Chief Justice Moore himself (then a Circuit Judge), dealt in part with the authority of the Chief Justice to control the conduct of a circuit judge. In that case, the Alabama Supreme Court made clear that the conduct of a circuit judge 'cannot be regulated by the Chief Justice, "standing alone.’” The Court further held that 'action by the Chief Justice is not synonymous with action by the "Court’” and that it is a basic 'principle of practice and procedure, no appellate pronouncement becomes binding on inferior courts unless it has the concurrence of a majority of the Judges or Justices qualified to decide the cause.' Accordingly, Chief Justice Moore does not have the authority to issue the Administrative Order issued on February 8, 2015.”

“The law is clear - all Chief Justice Moore has done is create chaos and his order is clearly out of bounds,” said Greg Nevins, counsel at Lambda Legal. "The Supreme Court has entertained the state’s request for a stay and rejected it. Same-sex couples and different-sex couples all enjoy the fundamental right to marry, and probate judges should not be interfering with that right by refusing to issue marriage licenses to those constitutionally entitled to obtain them.”

On Jan. 23 and 26, 2015, an Alabama federal district court ruled that the Constitution required both the issuance of marriage licenses to same-sex couples and the recognition of lawful, out-of-state marriages by same-sex couples. The court then enjoined the enforcement of Alabama’s marriage ban and stayed its injunction until Feb. 9, 2015, with the explicit proviso that the stay “will be lifted” on that date if not extended by a higher court.

On Feb. 8, Alabama Supreme Court Chief Justice Roy S. Moore issued an Administrative Order purporting to prohibit probate judges in Alabama from issuing marriage licenses to same-sex couples.

On Feb. 9, 2015, the U.S. Supreme Court denied a further stay of the district court’s injunction and the injunction thereby became effective immediately, requiring the issuance of licenses and the recognition of marriages entered into lawfully in other jurisdictions. Yet, despite the clear order from the federal district court and the unequivocal action of the United States Supreme Court, numerous probate judges still continue to enforce Alabama’s discriminatory marriage ban. These probate judges rely in part on Alabama Supreme Court Chief Justice Roy Moore’s Administrative Order of February 8, 2015, which is contrary to the law as set forth by the Alabama Constitution and precedent from the Alabama Supreme Court.

Read the full letter HERE.

Greg Nevins, Counsel, Omar Gonzalez-Pagan, Staff Attorney, and Eric Lesh, Fair Courts Project Director at Lambda Legal are handling the matter for Lambda Legal. David Gespass, of Gespass & Johnson in Birmingham, is joining forces with Lambda Legal in this effort.