MONTGOMERY-Alabama Chief Justice Roy Moore on Sunday, February 8th issued an order to all state probate judges to neither issue nor recognize a marriage license for same-sex couples.
The order states, “Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”
The 11th Circuit U.S. Court of Appeals in Atlanta rejected the State of Alabama’s request to issue a stay pending an appeal of the State’s ban on gay marriage proposed by Attorney General Luther Strange. This stay will open the way for same-sex marriage to begin on Monday, February 9th.
Read Alabama Chief Justice Roy Moore’s order below:
STATE OF ALABAMA — JUDICIAL SYSTEM
ADMINISTRATIVE ORDER OF THE
CHIEF JUSTICE OF THE SUPREME COURT
WHEREAS, pursuant to Article VI, Section 149, of the
Constitution of Alabama, the Chief Justice of the Supreme
Court of Alabama is the administrative head of the
judicial system; and
WHEREAS, pursuant to § 12-2-30(b)(7), Ala. Code
1975, the Chief Justice is authorized and empowered to
“take affirmative and appropriate action to correct or
alleviate any condition or situation adversely affecting
the administration of justice within the state”; and
WHEREAS, pursuant to § 12-2-30(b)(8), Ala. Code
1975, the Chief Justice is authorized and empowered to
“take any such other, further or additional action as may
be necessary for the orderly administration of justice
within the state, whether or not enumerated in this
section or elsewhere”; and
WHEREAS, pursuant to Article VI, Section 139(a), of
the Constitution of Alabama, the Probate Judges of
Alabama are part of Alabama’s Unified Judicial System;
and
WHEREAS, pursuant to Article XVI, Section 279, of
the Constitution of Alabama, the Probate Judges of
Alabama are bound by oath to “support the Constitution of
the United States, and the Constitution of the State of
Alabama”; and
WHEREAS, as explained in my Letter and Memorandum to
the Alabama Probate Judges, dated February 3, 2015, and
incorporated fully herein by reference, the Probate
Judges of Alabama are not bound by the orders of January
23, 2015 and January 28, 2015 in the case of Searcy v.
Strange (No. 1:14-208-CG-N) (S.D. Ala.) or by the order
of January 26, 2015 in Strawser v. Strange (No. 1:14-CV-
424-CG-C) (S.D. Ala.); and
WHEREAS, pursuant to Rule 65 of the Federal Rules of
Civil Procedure, the aforementioned orders bind only the
Alabama Attorney General and do not bind the Probate
Judges of Alabama who, as members of the judicial branch,
neither act as agents or employees of the Attorney
General nor in concert or participation with him; and
WHEREAS, the Attorney General possesses no authority
under Alabama law to issue marriage licenses, and
therefore, under the doctrine of Ex parte Young, 209 U.S.
123 (2008), lacks a sufficient connection to the
administration of those laws; and
WHEREAS, the Eleventh Amendment of the United States
Constitution prohibits the Attorney General, as a
defendant in a legal action, from standing as a surrogate
for all state officials; and
WHEREAS, the separation of powers provisions of the
Alabama Constitution, Art. III, §§ 42 and 43, Ala. Const.
1901, do not permit the Attorney General, a member of the
executive branch, to control the duties and
responsibilities of Alabama Probate Judges; and
WHEREAS, the Probate Judges of Alabama fall under
the direct supervision and authority of the Chief Justice
of the Supreme Court as the Administrative Head of the
Judicial Branch; and
WHEREAS, the United States District Court for the
Southern District of Alabama has not issued an order
directed to the Probate Judges of Alabama to issue
marriage licenses that violate Alabama law; and
WHEREAS, the opinions of the United States District
Court for the Southern District of Alabama do not bind
the state courts of Alabama but only serve as persuasive
authority; and
WHEREAS, some Probate Judges have expressed an
intention to cease issuing all marriage licenses, others
an intention to issue only marriage licenses that conform
to Alabama law, and yet others an intention to issue
marriage licenses that violate Alabama law, thus creating
confusion and disarray in the administration of the law;
and
WHEREAS, the Alabama Department of Public Health has
redrafted marriage license forms in contradiction to the
public statements of Governor Bentley to uphold the
Alabama Constitution, and has sent such forms to all
Alabama Probate Judges, creating further inconsistency in
the administration of justice; and
WHEREAS, cases are currently pending before The
United States District Court for the Middle District of
Alabama and the United States District Court for the
Northern District of Alabama that could result in orders
that conflict with those in Searcy and Strawser, thus
creating confusion and uncertainty that would adversely
affect the administration of justice within Alabama; and
WHEREAS, if Probate Judges in Alabama either issue
marriage licenses that are prohibited by Alabama law or
recognize marriages performed in other jurisdictions that
are not legal under Alabama law, the pending cases in the
federal district courts in Alabama outside of the
Southern District could be mooted, thus undermining the
capacity of those courts to act independently of the
Southern District and creating further confusion and
uncertainty as to the administration of justice within
this State; and
WHEREAS Article I, Section 36.03, of the
Constitution of Alabama, entitled “Sanctity of marriage,”
states:
(a) This amendment shall be known and may be
cited as the Sanctity of Marriage Amendment.
(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
(c) Marriage is a sacred covenant, solemnized
between a man and a woman, which, when the
legal capacity and consent of both parties is
present, establishes their relationship as
husband and wife, and which is recognized by
the state as a civil contract.
(d) No marriage license shall be issued in the
State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as
valid any marriage of parties of the same sex
that occurred or was alleged to have occurred
as a result of the law of any jurisdiction
regardless of whether a marriage license was
issued.
(f) The State of Alabama shall not recognize as
valid any common law marriage of parties of the
same sex.
(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.
and
WHEREAS § 30-1-9, Ala. Code 1975, entitled
“Marriage, recognition thereof, between persons of the
same sex prohibited,” states:
(a) This section shall be known and may be
cited as the “Alabama Marriage Protection Act.”
(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 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.
(c) Marriage is a sacred covenant, solemnized
between a man and a woman, which, when the
legal capacity and consent of both parties is
present, establishes their relationship as
husband and wife, and which is recognized by
the state as a civil contract.
(d) No marriage license shall be issued in the
State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as
valid any marriage of parties of the same sex
that occurred or was alleged to have occurred
as a result of the law of any jurisdiction
regardless of whether a marriage license was
issued.
and
WHEREAS, neither the Supreme Court of the United
States nor the Supreme Court of Alabama has ruled on the
constitutionality of either the Sanctity of Marriage
Amendment or the Marriage Protection Act:
NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:
To ensure the orderly administration of justice
within the State of Alabama, to alleviate a situation
adversely affecting the administration of justice within
the State, and to harmonize the administration of justice
between the Alabama judicial branch and the federal
courts in Alabama:
Effective immediately, no Probate Judge of the State
of Alabama nor any agent or employee of any Alabama
Probate Judge shall issue or recognize a marriage license
that is inconsistent with Article 1, Section 36.03, of
the Alabama Constitution or § 30-1-19, Ala. Code 1975.
Should any Probate Judge of this state fail to
follow the Constitution and statutes of Alabama as
stated, it would be the responsibility of the Chief
Executive Officer of the State of Alabama, Governor
Robert Bentley, in whom the Constitution vests “the
supreme executive power of this state,” Art. V, § 113,
Ala. Const. 1901, to ensure the execution of the law.
“The Governor shall take care that the laws be faithfully
executed.” Art. V, § 120, Ala. Const. 1901. “‘If the
governor’s “supreme executive power” means anything, it
means that when the governor makes a determination that
the laws are not being faithfully executed, he can act
using the legal means that are at his disposal.'” Tyson
v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley
v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)).
DONE on this 8th day of February, 2015.
________________________
Roy S. Moore
Chief Justice
