Interposition Ordered By Alabama Chief Justice On Same-Sex Marriage

Interposition-- a doctrine rarely seen since the early days of the civil rights movement-- seems to be close to reappearing in Alabama's response to federal court same-sex marriage decisions.  As previously reported, on Jan. 27 Alabama Supreme Court Chief Justice Roy Moore sent a letter to Alabama Governor Robert Bentley urging defiance at least of lower federal court decisions validating same-sex marriage in the state.  With the U.S. Supreme Court's order earlier today refusing to stay a federal district court order in Strange v. Searcy invalidating the state's same-sex marriage ban, same-sex marriages began in some Alabama counties.  But as reported by the New York Times, at least 50 of Alabama's 67 county probate courts were not issuing licenses to same-sex couples.

The confusion stems in part from an Administrative Order issued yesterday by Alabama Chief Justice Moore providing in part:

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....

However, in response Gov. Bentley issued a statement saying in part:

This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

 Earlier today, plaintiffs in the Searcy case filed a motion with an Alabama federal district court asking it to hold in contempt the Probate Court judge in Mobile County who, without explanation, has not opened the court's marriage license division today. [Thanks to Tom Rutledge for the lead on part of this post.]

UPDATE: In a Feb. 9 opinion (full text), the district court refused to hold the Probate Judge in contempt since the injunction did not directly order him to do anything.