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The Supreme Court of Alabama ordered all the state’s probate judges late Tuesday to stop issuing marriage licenses to same-sex couples, the latest salvo in a growing legal battle in Alabama over whether the decisions of federal justices trump those made by state judges.
The clash of federal rights versus state rights is also playing out nationwide as states opposed to same-sex marriage argue that federal courts can't throw out state gay marriage bans. The legal tempest comes months before the U.S. Supreme Court is expected to rule on whether or not gays and lesbians can get married nationwide.
In Alabama, a series of state and federal judges have gone back and forth over the issue, with the U.S. Supreme Court recently refusing to block a U.S. District Court judge’s ruling overturning the state's gay marriage ban — a move that allowed gay nuptials to begin there on Feb. 9.
But the Alabama supreme court’s decision threw the issue into question once more after a challenge was brought by the state and a county probate judge, among others. The court said Alabama wasn't bound by what it called the "new definition" of marriage, though gay marriage has "gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary."
"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the court said. "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."
In its ruling, the state supreme court said all of Alabama’s probate judges, including those listed as "Judge Does" in the legal filings, were "temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion." The probate judges have five days to respond to the order.
The state supreme court said the to-and-fro between the federal and state courts had meant some judges were granting same-sex marriages while others weren't. Yet others weren't performing either gay or opposite-sex marriages. "... uncertainty has become the order of the day. Confusion reigns," the justices wrote.
" ... state courts may interpret the United States Constitution independently from, and even contrary to, federal courts," they said.
Alabama Supreme Court Chief Justice Roy Moore, who has issued opinions saying the probate judges didn't have to heed the federal court rulings to marry gay couples, appeared to be absent from the decision - his name was neither in the concur or dissent portion of the order.
Lawyers who represented same-sex couples seeking the right to marry in Alabama decried the state court's decision.
"It is deeply unfortunate that even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history," Shannon Minter, of the National Center for Lesbian Rights, said in a statement. "The Court's action displays a callous disregard for the impact of this gratuitous decision on same-sex couples and their families, but those families should take heart that this is only a stumble along the way toward equality."
At least 36 states, plus the District of Columbia, allow gay marriage.