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Alabama: Federal judge compels renegade probate judge to issue marriage licenses

(Editor's note: This story has been rewritten to reflect judge's order and fresh quotes. The headline also changed. The URL remains the same, though. Additionally, SDGLN has learned that the first marriages have begun in Mobile.)

MOBILE, Alabama — U.S. District Judge Callie V.S. Granade heard oral arguments today in an emergency motion filed by four same-sex couples who were denied marriage licenses on Monday when marriage equality began in the state. Judge Granade told the packed courtroom that she would issue her decision as soon as possible. Less than an hour later, she ordered a renegade probate judge to issue marriage licenses to straight and same-sex couples.

Late Monday, the four same-sex couples filed the motion asking Judge Granade to instruct renegade Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples as Judge Granade previously ordered in her decision striking down the state’s marriage equality ban.

“Probate Judge Don Davis is hereby enjoined from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage,” Judge Granade wrote in her order released Thursday afternoon. “This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.”

The Alabama couples are James Strawser and John Humphrey, who previously obtained a ruling from Judge Granade declaring that Alabama’s exclusion of same-sex couples from marriage is unconstitutional, Meredith Miller and Anna Lisa Carmichael, Robert Povilat and Milton Persinger, and Kristy Simmons and Marshay Safford. The couples are represented by the National Center for Lesbian Rights (NCLR), Birmingham attorney Heather Fann, and the ACLU of Alabama.

Responding to the judge's order this afternoon, two legal directors issued statements:

Said NCLR Legal Director Shannon Minter: “Today’s ruling by Judge Granade provides clear direction to Judge Davis and other probate judges and will help ensure that all same-sex couples in Alabama, regardless of whether they live, have the freedom to marry.”

Added Randall Marshall, Legal Director of the ACLU of Alabama: “Judge Granade’s ruling confirms that the U.S. Constitution requires Alabama probate judges to issue marriage licenses to all qualified couples, gay and straight. We hope state and local officials will recognize that their first obligation is to comply with our federal Constitution and will move quickly to follow the court’s ruling so that all couples in Alabama will be able to share in the dignity and protection that marriage provides.”

During today's hearing, attorneys for the plaintiffs stressed that gay marriage was supposed to begin Feb. 9, but as of Thursday there were many counties where gay and lesbian couples -- and in a number of places, even straight couples -- could not get married.

ACLU lawyer Randall Marshall told the judge that Alabama Supreme Court Chief Justice Roy Moore's administrative order to probate judges "has no validity" and should be ignored. He later urged the judge to issue a broad order clearly stating that her ruling applies to all probate judges.

David Kennedy, also an attorney for the plaintiffs, argued that Moore's contention that only a ruling on the merits by the U.S. Supreme Court can overturn a state law is flat-out wrong. He said an appeals court and the high court both denied requests to extend the stay past Feb. 9.

Mike Druhan, an attorney for Mobile County Probate Judge Don Davis who is not issuing ANY marriage licenses, said his client has no position on the issue and simply was seeking guidance on what to do. Moore's administrative order set off a state of confusion, since he is essentially the boss of the state's probate judges.

In January, Judge Granade held that Alabama’s laws excluding same-sex couples from marriage are unconstitutional and may no longer be enforced. Judge Granade’s order was set to go into effect on February 9, permitting same-sex couples across the state to marry.

While some Alabama counties began issuing marriage licenses to same-sex couple on that day, others—including Mobile County—did not, citing an “administrative order” by Alabama Supreme Court Chief Justice Roy Moore, instructing probate judges not to comply with Judge Granade’s order.

“It is time for the judicial chaos that Chief Justice Roy Moore has caused to end,” HRC Legal Director Sarah Warbelow said. “Both the law and Judge Granade’s action today are crystal clear: refusing to follow the law has consequences. All probate judges should do their duties as public servants and begin to issue licenses to committed, loving same-sex couples immediately.”

Learn more about the Strawser v. Strange case by clicking HERE.