Via press release from Liberty Counsel:
Liberty Counsel is representing Nick Williams and other Alabama probate judges who refuse to issue same-sex marriage licenses. U.S. District Judge Callie Granade has set Monday as the day when she said the state should begin issuing these licenses. At this time, no Alabama probate judge is bound by Judge Granade’s order. This sole federal judge does not have jurisdiction to order all state probate judges to issue marriage licenses to same-sex couples. In addition, Alabama code does not mandate that a judge of probate perform marriage for anyone. No two people seeking a marriage ceremony have the right to demand that the ceremony be performed by a particular judge at a particular time and place. Any number of accommodations can be made that would give couples (whether same-sex or opposite-sex) access to a judge, while also protecting an individual judge’s rights of conscience and free speech. Alabama Supreme Court Chief Justice Roy Moore has explained, in a letter and memorandum, the illegality and illegitimacy of current federal cases purporting to strike down marriage.
AL.com today reports that these probate judges may face criminal sanctions.
Alabama probate judges who refuse to issue marriage licenses to same-sex couples could ultimately be jailed for contempt if they disobey a federal judge’s order, a few legal experts said Saturday. “If the (federal) court issues an order and they refuse to comply with the order, then the court can find them in contempt of court, which could result in a fine or incarceration until they purge themselves of the contempt,” former U.S. District Court Judge U.W. Clemon said. “I don’t think that’s likely to happen,” he quickly added. If a same-sex couple comes to an Alabama probate judge Monday and is denied a marriage license, then it would likely result in that couple filing a federal lawsuit against the probate judge, Clemon and others said. Or the couples could ask to intervene in the case in Mobile and seek an order from that judge. “Given the current state of the law they could probably get an injunction,” Clemon said.
At least two judges have already declared that they will not issue licenses to any couple in order legally turn away same-sex couples. At least three others plan to only turn away gay couples.
At least five probate judges have said they won’t issue marriage licenses to same-sex couples on Monday. Two, in Clarke and Pike counties, say they won’t issue any licenses, even to opposite-sex couples. One, in Marengo County, says the forms will be available but she won’t sign them. And probate judges in Washington and Covington counties say they won’t issue to same-sex couples. Randall C. Marshall, legal director for the ACLU of Alabama, said that Judge Granade had made it clear that the issuance of marriage licenses to same-sex couples is the law of Alabama after her order and that those who refuse will be subject to a court order. She also made it clear that the sanctions could include the probate judges being on the hook for the attorneys’ fees of those same-sex couples, he said.
Alabama has 67 counties and a population of 4.9 million. Clarke and Pike counties have a combined population of about 68,000. Marengo, Washington, and Covington counties have a combined population of about 75,000. If these five counties are the only ones not issuing licenses on Monday morning, that will mean that same-sex marriage licenses will be available to more than 95% of Alabama’s population.