Alabama Chief Justice Roy Moore issued an order on January 6, 2015 ordering Alabama’s probate judges “not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act.”
In the order, Chief Justice Moore reasoned that the U.S. Supreme Court’s 5-4 ruling in Obergefell v. Hodges that invalidated laws in Michigan, Kentucky, Ohio, and Tennessee did not automatically invalidate the laws and State Constitution of Alabama.
The Sanctity of Marriage Amendment, as found on the Alabama Legislature website, states in part,
“(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
“… (g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.”
The Marriage Protection Act, an Alabama codified law enacted in 1975 is equally specific with regard to same-sex marriage, stating in part,
“Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.”
“Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’ in API,” stated Chief Justice Moore. “Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage license. This disparity affects the administration of justice in this State.”
Chief Justice Moore continued:
“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing order of the Alabama Supreme Court. That issue remains before the entire Court which continues to deliberate on the matter.
“Nevertheless, recent developments of potential relevance since Obergefell may impact this issue. The United States Court of Appeals for the Eight Circuit recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction. While applying Obergefell as precedent, the Eighth Circuit rejected the Nebraska defendants’ suggestion that Obergefell mooted the case. The Eighth Circuit stated: ‘The [Obergefell] Court invalidated the laws in Michigan, Kentucky, Ohio, and Tennessee – not Nebraska.’ Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir. 2015) (emphasis added). In two other cases the Eighth Circuit repeated its statement that Obergefell directly invalidated only the laws of the four states in the Sixth Circuit. See ernigan v. Crane, 796 F.3d 976, 979 (8th Cir. 2015) (“not Arkansas”); Rosenbrahn v. Daugaard, 799 F.3d 918, 922 (8th Cir. 2015) (“not South Dakota”).
Also citing a case in U.S. District Court for the District of Kansas that he says was "even more explicit," Chief Justice Moore further explained that the above cited cases “reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court. ‘A judgement or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.’ Martin v. Wilks, 490 U.S. 755, 762 (1989). ‘[N]o court can make a decree which will bind anyone but a party … no matter how broadly it words its decree.’ Alemite Mfg. Corp. v. Staff, 42 F.3d 832, 832 (2d Cir. 1930). See also Rule 65, Fed R. Civ. P., on the scope of an injunction."
Chief Justice Moore concluded "that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the Untied States Supreme Court in Obergefell" and rendered the following order:
"IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”