Same-sex marriage in Alabama

Same-sex marriage has been legal in the U.S. state of Alabama since June 26, 2015, after the U.S. Supreme Court's ruling in Obergefell v. Hodges, though not all counties participated, taking advantage of an exemption dating from the Civil Rights Era that allowed counties to avoid performing interracial marriages. On August 29, 2019, the state changed its marriage law, replacing the option of counties issuing marriage licenses and performing ceremonies with the requirement of counties issuing and recording marriage certificates. All counties complied, including with interracial and same-sex couples.

After Obergefell v. Hodges, several Alabama counties initially would not issue marriage licenses to any couples in order to avoid issuing them to same-sex couples. A year after the Supreme Court ruling, only twelve counties would either issue licenses to no one or only to opposite-sex couples. By 2017, this number had dropped to only eight counties, with all eight refusing to issue licenses to anyone. In May 2019, the Alabama Legislature passed a bill replacing marriage licenses with marriage certificates in order to keep probate judges from violating their consciences and so that the remaining counties would resume marrying couples. These final eight counties began issuing marriage certificates to all couples on August 29, 2019.

Before the Supreme Court's decision in Obergefell v. Hodges on June 26, 2015 which held that the United States Constitution requires every state to recognize and license same-sex marriage, the legal status of same-sex marriage in Alabama had been the subject of a long legal battle.[1] On January 23, 2015, Judge Callie V.S. Granade[lower-alpha 1] of the United States District Court for the Southern District of Alabama[lower-alpha 2] ruled in Searcy v. Strange that Alabama's refusal to license and recognize same-sex marriages is unconstitutional. She ordered the state Attorney General to stop enforcing those bans. The Alabama Probate Judges Association issued a statement on January 24 that said "There is nothing in the judge's order [in Searcy] that requires probate judges in Alabama to issue marriage licenses to same-sex couples".[3] Federal court orders took effect on February 9, 2015, and 47 of the state's 67 counties began issuing marriage licenses to same-sex couples that day or shortly thereafter, despite an order from Alabama Supreme Court Chief Justice Roy Moore not to do so. The other counties either issued licenses only to opposite-sex couples or stopped issuing marriage licenses altogether. In both cases, a U.S. District Court had found the state's ban on same-sex marriage unconstitutional. The Eleventh Circuit Court of Appeals and the U.S. Supreme Court had declined state officials' requests for a stay. On March 3, 2015, the Alabama Supreme Court, ruling in a different case, ordered the state's probate judges to stop issuing marriage licenses to same-sex couples, and they promptly complied, though a number of them refused to issue any marriage licenses at all. At least 545 same-sex couples married between February 9 and March 3, 2015. Advocates for same-sex marriage rights responded with renewed efforts in federal court, and on May 21, 2015, a federal court ruled that all probate judges were obliged not to refuse to issue marriage licenses on the basis of the applicants being of the same sex, but stayed its ruling pending action by the U.S. Supreme Court.

Previously, the state banned the licensing of same-sex marriages and the recognition of such marriages from other jurisdictions by executive order in 1996, by statute in 1998, and by constitutional amendment in June 2006.

Restrictions

Executive order

On August 29, 1996, Governor Fob James issued Executive Order 24 banning same-sex marriage and recognition of same-sex marriages performed in other states or foreign countries.[4][5]

Statute

On April 9, 1998, the Alabama State House voted 79–12 in favor of a ban on same-sex marriage and recognition of same-sex marriages performed in other states or foreign countries. On April 13, 1998, the Alabama State Senate approved the bill in a 30–0 vote.[6] Governor Fob James signed it into law.

Constitution

On March 8, 2006, the Alabama State House voted 85–7 in favor of Amendment 774, a constitutional amendment to the Constitution of Alabama which bans same-sex marriage and a "union replicating marriage of or between persons of the same sex" in the state. On March 11, 2006, the Alabama State Senate approved the bill in a 30–0 vote.[7] On June 6, 2006, Alabama voters endorsed adding the amendment to the state's Constitution with 81% voting in favor.[8]

Lawsuits

Aaron-Brush v. Bentley

A plaintiff couple filed suit on June 10, 2014, seeking recognition of their out-of-state marriage.[9] The due date for motions was set at July 31, 2015, to allow for action by the U.S. Supreme Court in other cases.

Hard v. Strange

On February 13, 2014, the Southern Poverty Law Center filed suit in U.S. District Court for the Middle District of Alabama on behalf of Paul Hard challenging the state's ban on same-sex marriage, both in its statutes and Constitution. Hard and his late husband, David Fancher, Alabama natives, wed in Massachusetts on May 20, 2011. Fancher died in an accident on August 1. The suit, originally Hard v. Bentley, named the Governor as principal defendant, as well as several other government officials.[10] Hard asked for a corrected death certificate and recognition as Fancher's surviving spouse, entitled to a share of the proceeds of a wrongful death suit filed by the administrator of Fancher's estate.[11][12] Fancher's mother, who opposed Hard's claims and was supported by Alabama Supreme Court Chief Justice Roy Moore's Foundation for Moral Law, asked the district court for a ruling on her motion for summary judgement on February 5, 2015. On February 9, the Alabama Department of Public Health provided Hard a corrected death certificate.[13] On March 10, the court removed the Governor as a defendant and stayed proceedings pending action by the U.S. Supreme Court in same-sex marriage cases then scheduled for review.[14]

On July 1, 2015, Hard asked the court to lift its stay and release the wrongful death proceeds, citing the U.S. Supreme Court decision in Obergefell.[15] The court did so on July 15. Pat Fancher appealed the District Court's ruling against her. On April 20, 2016, the Eleventh Circuit Court of Appeals affirmed the decision of the District Court and ruled for Hard.[16]

Searcy v. Strange

Plaintiffs Cari Searcy and Kimberly McKeand filed a lawsuit, originally Searcy v. Bentley, on May 7, 2014, seeking recognition of their out-of-state marriage and second-parent adoption for their minor son.[17] In mid-June, attorneys for the same-sex couple filed a motion for summary judgment; the state defendants filed a motion to dismiss.[18] On January 23, 2015, Judge Callie V.S. Granade[lower-alpha 3] of the United States District Court for the Southern District of Alabama[lower-alpha 4] ruled that Alabama's refusal to license and recognize same-sex marriages is unconstitutional. She ordered the state Attorney General to stop enforcing those bans. The plaintiffs' attorneys hoped the state would comply, though other LGBT rights advocates anticipated further litigation. Legislative leaders denounced the ruling of "a single unelected and unaccountable federal judge" or saw the ruling as evidence that "traditional values espoused by Alabamians have begun to erode even in our conservative state."[20] Attorney General Luther Strange immediately asked for a stay of her ruling.[21] On January 25, the plaintiffs asked the court to clarify its order, describing the Probate Judges "like George Wallace at the schoolhouse door staring defiantly upon this Court's order". They cited at length a 1970 ruling involving the same group of government officials that had ended enforcement of Alabama's anti-miscegenation statute, United States v. Brittain, which extended a ruling from one interracial couple who sought a marriage license and "requir[ed] the Attorney General of the State of Alabama to advise the Judges of Probate of the several counties of Alabama" to cease enforcement of an invalid law.[22] On January 25, Judge Granade stayed her ruling for 14 days to allow Strange to seek a longer stay from the Eleventh Circuit Court of Appeals.[23]

On January 26, Attorney General Strange filed notice of appeal in the Eleventh Circuit,[24] and asked for a stay of the district court's ruling pending appeal.[25] The Governor and the Probate Judges Association filed amicus briefs in support of his request.

On January 28, Judge Granade clarified her order, quoting at length from Judge Robert Hinkle's warning in the Florida case Brenner v. Scott that those who fail to comply will bear the costs of additional suits that will produce the same result and, still quoting Hinkle: "There should be no debate ... on the question of whether a [state official] may follow the ruling, even for marriage-license applicants who are not parties to this case."[26]

Strawser v. Strange

On January 27, 2015, Judge Granade ruled in favor of a male couple seeking the right to marry in Alabama. She stayed her ruling temporarily, setting the stay to expire on February 9 with her stay in Searcy.[27] A male couple, James N. Strawser and John E. Humphrey, had filed their suit in September 2014 without assistance of counsel after being denied a marriage license at the Mobile County Courthouse in July. At a half-hour hearing before Judge Granade on December 18, 2014, each of them testified and Strawser questioned their only other witness, Bishop David M. Carnrike, a minister of the United Gospel Holiness Church of America and presiding bishop of the Staff of Life Church Conference, who had married them on August 16. James W. Davis of the Attorney General's office cross-examined all three.[28] On January 29, the National Center for Lesbian Rights took on the plaintiffs' representation.

Reaction to Searcy and Strawser rulings

The Alabama Probate Judges Association issued a statement on January 24 that said "There is nothing in the judge's order [in Searcy] that requires probate judges in Alabama to issue marriage licenses to same-sex couples".[3] The next day, the editorial board of AL.com[lower-alpha 5] called on the Governor and state legislators to end their opposition to same-sex marriage.[30] On January 27, the Chief Justice of the Alabama Supreme Court, Roy Moore, released a letter addressed to Governor Robert J. Bentley, in which he said that:[31]

Our State Constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States. Nothing in the United States Constitution grants to the Federal Government the authority to desecrate the institution of marriage.

He welcomed the recent letter from the Probate Judges Association and warned any judge who might issue a marriage license to a same-sex couple that "the issuance of such licenses would be in defiance of the laws and Constitution of Alabama." Saying that his court was not bound by U.S. District Court rulings, he wrote to the Governor: "Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issue without constitutional authority." The Governor responded that: "The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As Governor, I must uphold the Constitution. I am disappointed in Friday's ruling, and I will continue to oppose this ruling. The Federal Government must not infringe on the rights of states."[32]

Once Judge Granade clarified her order on January 28, the Probate Judges Association acknowledged that her order in Searcy, if lifted, requires them to issue marriage licenses to same-sex couples and said it would encourage its members to comply.[33][34]

On February 3, the Eleventh Circuit rejected Strange's request to extend Judge Granade's stay and consolidated the appeals in Searcy and Strawser.[35] Strange immediately asked Justice Clarence Thomas, Circuit Judge for the Eleventh Circuit, to extend the stay.[36] On February 4, the Eleventh Circuit suspended proceedings in the appeal pending action by the U.S. Supreme Court in same-sex marriage cases it had accepted for review.

On February 5, the Alabama Department of Public Health provided the state's probate courts with a revised marriage license application form that replaced the terms bride and groom with spouse and spouse.[37]

Moore sent an order to probate judges and state employees late on February 8, the day before Granade's order was set to take effect, threatening legal action by the Governor against anyone who complied with her order.[38][39]

Granade's orders take effect

Granade's orders in Searcy and Strawser took effect on February 9. Just as state offices were opening that morning, the U.S. Supreme Court declined the state's request for a stay, with Justices Antonin Scalia and Clarence Thomas dissenting.[40] Nine counties issued marriage licenses to same-sex couples that day (Chilton, Coffee, Crenshaw, Etowah, Fayette, Jefferson, Lowndes, Madison and Montgomery).[41] The first couple to marry were Tori Sisson and Shanté Wolfe in Montgomery.[42] The Searcy plaintiffs re-filed the adoption petition that had been the basis of their lawsuit on February 9 as well.[43]

That morning, Attorney General Strange issued a statement in response to the Supreme Court's action disclaiming responsibility for the issuing of marriage licenses and advising probate judges to consult their own legal counsel.[44] That afternoon, Governor Robert J. Bentley announced he agreed with Moore's statement and Thomas' dissent, but would take no action against any probate judge based on the issuance of marriage licenses to same-sex couples.[45] Also that afternoon, the Searcy plaintiffs asked the district court to hold Don Davis, Probate Judge for Mobile County, in contempt for failing to open his marriage license division that day.[46] The court denied that motion later that day because Davis was not a party to the Searcy lawsuit.[47]

Republican U.S. Senator Jeff Sessions commented on February 9: "I think it's an unhealthy trend that judges feel that they're somehow reflecting popular opinion when first of all, it's not popular opinion, and secondly, who are they to be ruling on cases based on how they feel."[48]

Further proceedings in Strawser

Ending the first day of legal same-sex marriage in Alabama, the Strawser plaintiffs, whose pro se suit had originally named only the Attorney General as defendant after they had been denied a marriage license in Mobile County, amended their suit to add Davis as a defendant and add three other same-sex couples seeking marriage licenses from Mobile County as plaintiffs. They also asked for a temporary restraining order or injunction preventing the defendants from enforcing Alabama's same-sex marriage ban and, for the first time in this case, sought attorney's fees.[49] The court added the new parties the next day and scheduled a hearing on the injunction for February 12.[50] After the hearing, Granade issued an injunction against Davis, ordering the probate judge to issue marriage licenses to same-sex couples,[51] and Mobile County issued marriage licenses to same-sex couples that afternoon.[52] On February 16, Jefferson County Probate Judge Alan King, one of the four probate judges named in the Alabama Policy Institute lawsuit in state court, asked the district court to allow him to intervene as a defendant in Strawser. He told the court that in that other suit the Alabama Policy Institute and the Alabama Citizens Action Program "acting in concert with and on behalf of the State of Alabama, are improperly attempting to seek further stay of this Court's prior Orders" from the Alabama Supreme Court.[53] On February 17, the Strawser plaintiffs asked the district court to enforce its order by requiring Attorney General Strange to prevent the private parties' suit in the Alabama Supreme Court from proceeding, contending that Strange has the authority to have the suit dismissed and that the court's order extends through the Attorney General to such private parties who seek to frustrate the court's order.[54] Judge King made a similar motion.[55] In response, Strange argued that he lacked such authority over private parties, that the plaintiffs had already received the relief for which they brought suit in the first place, and that the court's order did not require any action on the part of probate judges not named as defendants in Strawser.[56]

On February 20, Judge Granade denied King's request to intervene because he "does not seem to have an interest in the subject matter of this action".[57] She also denied the plaintiffs' request that she order Strange to have the litigation initiated by private parties in the Alabama Supreme Court dismissed. She said the plaintiffs had not demonstrated they required further relief nor shown a link between the relief plaintiffs in this case had already received and the state court suit, whatever its outcome.[58]

More proceedings in Strawser

On March 6, Davis asked the federal court to stay its order in Strawser, arguing that he had fulfilled its specific requirements by issuing licenses to the plaintiffs and that he could only comply with the Alabama Supreme Court's order if this court did add more plaintiff same-sex couples and require him to issue them marriage licenses. He noted that he had taken no public position on the underlying legal question of the constitutionality of Alabama's denial of marriage rights to same-sex couples and described his "unprecedented, historic and yet difficult position" when subject to conflicting orders from the federal and state courts.[59] Judge Granade immediately asked the plaintiffs to reply to Davis' request by March 13.[60]

Later on March 6, just as Davis had anticipated, the Strawser plaintiffs asked Judge Granade to add plaintiffs and defendants to Strawser and to certify the suit as a class action. They named three more couples as plaintiffs "individually and on behalf of other similarly situated persons". Those couples had each been denied marriage licenses in two counties. They added Tim Russell, Probate Judge of Baldwin County, "as representative of a Defendant Class of similarly situated probate judges in the State of Alabama" along with Davis. As counsel for the plaintiffs, they said the National Center for Lesbian Rights was now joined by the Southern Poverty Law Center, Americans United for Separation of Church and State, and the American Civil Liberties Union of Alabama.[61][62] The court gave Judge Davis until March 17 to respond.

On March 13, Madison County Circuit Judge Karen Hall granted a divorce to a lesbian couple who wed in Iowa in November 2012. They had requested the divorce on February 9 after having been denied a divorce by the same judge a year earlier.[63]

On March 16, Judge Granade denied Davis's request that she stay her order in Strawser,[64] and the next day gave him until March 23 to respond to the plaintiffs' request to add parties and certify the case as a class action.[65] He responded that same day, and on March 18 Judge Granade accepted the additional parties to the suit. To Strange's objection that the lawsuit was too far advanced, she wrote that "the licenses [obtained by the plaintiffs] are of little value if they are not recognized as valid in Alabama".[66] On April 23, she denied the Attorney General's motion to dismiss. She found that Strange was an appropriate defendant in that he has defended the state's ban in court and, in a different case, said he "maintains enforcement authority" over their application by all levels of government in the state, and because the plaintiffs seek the rights of marriage, not just marriage licenses.[67]

On May 21, Judge Granade certified the case as a class action and ordered all probate judges and those who act in concert with them to license same-sex marriages on an equal basis with different-sex marriages, notwithstanding any provision of the state constitution or statutes, or any ruling of the Alabama Supreme Court. She suspended implementation of her injunction pending action by the U.S. Supreme Court.[68]

Final injunction in Strawser

On June 7, 2016, Judge Callie Granade issued a permanent injunction barring any state official from enforcing laws that fail to recognize same-sex couples' right to marry.[69][70]

Hedgepeth v. Davis

Late on February 9, the attorneys in Searcy filed a new lawsuit, Hedgepeth v. Davis, on behalf of eight couples denied marriage licenses in Mobile County on February 9. They named as defendants Davis and two of his staff, Governor Bentley, Attorney General Strange, and Chief Justice Moore. They sought an emergency injunction and sanctions.[71] Davis asked the Alabama Supreme Court for further instruction in light of the U.S. Supreme Court's action and the contempt motion filed in Searcy, which had already been dismissed,[72] a request the court rejected on February 11, calling it a request for an advisory opinion which the court is only authorized to give to the Governor or Legislature.[73] The district court denied the Hedgepeth plaintiffs immediate relief for procedural reasons, but invited their attorneys to participate in the February 12 hearing in Strawser.[74] After Mobile County began issuing marriage licenses to same-sex couples, the plaintiifs agreed to remove county officials as defendants, leaving only Strange and Moore. On March 24, having obtained marriage licenses, they asked that their suit be dismissed.

Alabama Policy Institute lawsuit

On February 11, 2015, two conservative groups, the Alabama Policy Institute and the Alabama Citizens Action Program, filed a lawsuit asking the Alabama Supreme Court to order the state's probate judges to deny marriage licenses to same-sex couples.[75][lower-alpha 6] The suit targeted all the state's probate judges, but identified only four of them by name. On February 13, Equality Alabama filed an amicus brief asking the Alabama Supreme Court to dismiss the Alabama Policy Institute's lawsuit. It argued that the plaintiffs had not demonstrated a specific injury they had suffered and were seeking improperly to assume the role of state officials.[76] The Court gave the four named defendants until February 18 to file briefs, allowing the plaintiffs until 10 am February 23 to respond. One defendant, Judge Davis, argued that the lawsuit assumed no probate judge was subject to Granade's orders and could not apply to him now that he was a defendant in Strawser.[77] Judges Alan King and Tommy Ragland offered arguments much like those of Equality Alabama.[78] On March 3, the court ruled in a 7 to 1 decision that the plaintiffs had standing and that Alabama's ban on same-sex marriage does not violate the U.S. Constitution. It ordered all probate judges to conform to Alabama law and deny marriage licenses to same-sex couples.[79] The court asked Judge Davis, since he was subject to Granade's orders, to explain by March 5 whether he was required to issue licenses to same-sex couples in addition to those he had already issued to the Strawser plaintiffs as required by the federal court. On that date, Davis asked the court for additional 10 days to respond.[80] On March 11, the court rejected Davis' request for an extension and ordered him not to issue any additional marriage licenses to same-sex couples.[81]

Following the Alabama Supreme Court's order of March 3, Judge Davis kept Mobile County's marriage license bureau closed.[82] On March 18, Probate Judge Steven Reed of Montgomery County asked the court to amend its order so that it becomes ineffective if the U.S. Supreme Court rules that a state ban on same-sex marriage is unconstitutional.[83] The court denied his request on March 23 without comment.[84]

Searcy v. Davis

On February 24, 2015, Cari Searcy asked the District Court for an injunction against Probate Judge Don Davis who had issued an initial adoption decree as ordered in Searcy v. Strange but added language stating "that this Decree is qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it."[85] On March 24, she told the court that Davis had removed the language in question and asked the court to dismiss her suit.[86]

U.S. Supreme Court ruling

On June 26, the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples is unconstitutional. Alabama Attorney General Luther Strange wrote in a news release: "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court's ruling is now the law of the land."[87] Some probate judges began issuing marriage license that day, including those in Birmingham and Mobile, while others denied licenses to same-sex couples or issued no licenses to anyone.[87] On June 27, 2015, the Alabama ACLU asked the state's association of probate judges to instruct its members to comply with the ruling.[87] As of June 29, 2015, at least 32 of the state's 67 counties were issuing marriage licenses to same-sex couples, and at least 22 of the counties were either refusing to do so or were refusing to issue marriage licenses to anybody.[88] Also on June 29, the Association of County Commissions, an organization that provides liability insurance to judges, recommended that judges follow the ruling of the U.S. Supreme Court.[89]

After the release of the Obergefell decision, Justice Moore stated that the decision was subject to reconsideration for 25 days and until then not binding, while the Alabama Supreme Court was, within that time frame, asking for briefs with respect to its own order in the Alabama Policy Institute lawsuit that clerks not issue marriage licenses.[90] He later issued a clarification: "In no way does the [Alabama Supreme Court's] order instruct probate judges of this State as to whether or not they should comply with the U.S. Supreme Court's ruling in Obergefell".[90] On July 1, the Strawser plaintiffs asked Judge Granade to clarify the status of her order,[91] and the same day she did so, issuing an order that said her preliminary injunction was now in effect and applied to all the state's probate judges.[92]

Counties issuing or refusing to issue licenses, February–March 2015

Counties issuing marriage licenses on about February 18, 2015, approximately the date of maximum availability
  Counties that issued marriage licenses to all couples
  Counties that issued marriage licenses to opposite-sex couples only
  Counties that had stopped issuing marriage licenses
Question marks indicate conflicting reports. Exes mark counties that had issued licenses sometime in the week before this date.

By February 18, 2015, 47 of Alabama's 67 counties had started issuing (or announced they would issue if asked) same-sex marriage licenses, as follows:[93][94]

Counties that issued same-sex marriage licenses

47 counties, 82% of residents (2 others had stopped by this date)

Autauga, Baldwin, Barbour, Blount, Bullock, Butler, Calhoun, Cherokee, Chilton, Coffee, Colbert, Conecuh, Coosa, Crenshaw, Cullman, Dale, Dallas, DeKalb, Etowah, Fayette, Franklin, Greene, Hale, Henry, Jackson, Jefferson, Lamar, Lauderdale, Lawrence, Lee, Limestone, Lowndes, Macon, Madison, Mobile, Monroe, Montgomery, Morgan, Perry, Russell, St. Clair, Sumter, Talladega, Tallapoosa,[95] Tuscaloosa, Wilcox, Winston

Counties that issued marriage licenses to opposite-sex couples only

11 counties, 10% of residents

Chambers, Clay (would not issue unless ordered to directly),[96] Cleburne (would not issue unless ordered to directly),[97] Covington, Elmore (issued, then stopped),[98] Escambia (issued, then stopped),[94] Marengo, Marion (scheduled, changed mind),[99] Pickens, Shelby (would not issue unless ordered to directly, Washington (awaited U.S. Supreme Court)[100]

Counties that had stopped issuing all marriage licenses

9 counties, 8% of residents

Bibb (no decision could be made while judge out sick),[101] Choctaw,[102] Clarke, Geneva,[103] Houston,[104] Marshall (scheduled, changed mind),[105] Pike, Randolph, Walker

Some general reports indicated that Choctaw and Houston counties might be issuing licenses to opposite-sex couples only,[93] but local reports in Houston were that it had instead stopped all licensing.[104][106][107] Pickens had been scheduled to start issuing same-sex licenses on February 16, but it was neither reported to have actually started issuing licenses, nor included among the counties (such as Marion and Marshall) that had similarly scheduled but reversed their decision.

Counties stop issuing marriage licenses to same-sex couples

Counties issuing marriage licenses on about March 4, after the state Supreme Court decision.

On March 3, 2015, the Alabama Supreme Court ordered all probate judges in the state to stop issuing marriage licenses to same-sex couples.[108] By the afternoon of the next day, all or nearly all counties[lower-alpha 7] stopped issuing such licenses. Autauga, Macon, Mobile,[111] and Talladega stopped issuing licenses to all couples. Choctaw and Geneva, which had earlier issued no licenses, started issuing licenses to opposite-sex couples, while Bibb, Clarke, Houston, Marshall, Pike, Randolph, and Walker continued in not issuing licenses to any couples.[93]

After Obergefell v. Hodges

Legislation

On September 16, 2015, the Alabama House of Representatives voted by 53 votes to 36 in favor of a bill which sought to do away with state-issued marriage licenses. Supporters argued the bill would protect probate judges who oppose issuing marriage licenses to same-sex couples. However, the bill failed as it needed a two-thirds majority (it received 59.6%). The Alabama Senate had previously approved the legislation.[112]

On March 15, 2016, the Alabama Senate approved a similar bill, in a 23-3 vote.[113][114] This time, a two-thirds majority was not needed. The bill, however, died without a vote in the House.

A similar bill also failed in 2017. On January 16, 2018, the Alabama Senate approved another bill. It was passed 19-1. Senator Phil Williams was the sole senator to vote against it.[115] The bill also died at the end of the legislative term, as the House had not voted on it.

In May 2019, the Alabama Legislature passed a bill replacing marriage licenses and ceremonies with marriage certificates in order to keep probate judges from violating their consciences by presiding over ceremonies of same-sex couples. The bill requires that every county issue marriage certificates, replacing the wording that probate judges "may" issue marriage licenses. State Senator Greg Albritton, who pushed for this new bill, said he saw this as a necessary compromise between the two sides of the issue.[116] All counties in the state, including the final eight holdouts, began issuing and recording marriage certificates to all couples who meet the requirements to wed on August 29, 2019.

Roy Moore's order

On January 6, 2016, Alabama Chief Justice Roy Moore again ordered Alabama's probate judges to stop issuing marriage licenses to same-sex couples. Moore said the 2015 United States Supreme Court decision differs with earlier opinions by the Alabama Supreme Court, and the Alabama Supreme Court needs to clarify the situation. Moore added that the decision did not invalidate the state's constitutional amendment, and that the decision only invalidated the bans in the states which were parties in the case (Kentucky, Michigan, Ohio and Tennessee).[117] However, only five probate courts were known to have followed Moore's order (Elmore, Madison, Marengo, Mobile and Walker).[118] Three of those counties (Madison, Mobile and Walker) resumed issuing marriage licenses to same-sex couples a few days later.[119][120][121] His statement had no effect and all Alabama counties continued either issuing marriage licenses to all couples or not issue licenses at all. In May 2016, Moore was charged with ethics charges by the state Judicial Inquiry Commission for the ruling.[122] On 30 September, Moore was found guilty and suspended for the remainder of his term.[123]

Alabama Supreme Court's order

On March 4, 2016, the Alabama Supreme Court issued an order dismissing a case brought forward by the Alabama Policy Institute, the Alabama Citizens Action Program and the Elmore County Probate Judge,[124] although in terms that left it unclear whether the court was acknowledging Obergefell as the law. The intended effect of the opinion was unclear: although it appears to acknowledge the invalidity of Alabama judicial decisions post-Obergefell that attempted to challenge that decision, it does not expressly acknowledge Obergefell as the law and instead argues that Obergefell is invalid.[125] "All motions/petitions that were filed subsequent to the original mandamus order are dismissed, technically leaving in place the original decision. But that decision (according to Justice Shaw) is a dead letter in light of Obergefell and the Strawser injunction which binds all probate court judges in Alabama," noted the legal director for the American Civil Liberties Union of Alabama.[125] The founder of evangelical Christian litigation group Liberty Counsel agreed that "The Judgement makes permanent the Alabama Supreme Court's order prohibiting probate judges from issuing marriage licenses to same-sex couples," adding that "The Alabama Supreme Court has rejected the illegitimate opinion of five lawyers on the U.S. Supreme Court."[125]

While the intended effects of this order are unclear, the court's judges issued a number of concurrences. Judge Greg Shaw's concurrence was cited as commenting that the Alabama Supreme Court was bound to abide by the judgments of the U.S. Supreme Court, and noting that judges that failed to recognize that should resign.[125]

Final holdouts

Counties that issued marriage licenses to all couples (blue) and counties that issued licenses to no couple (purple) prior to August 29, 2019

As of October 2, 2015, at least eight counties were not issuing any marriage licenses, with no indication if or when they might resume: Autauga, Choctaw, Clarke, Cleburne, Covington, Geneva, Pike and Washington.[126] Chambers and Bibb counties confirmed on August 21 and September 4 that they were not issuing any licenses.[126] By June 26, 2016, Chambers had begun issuing marriage licenses to all couples.[127]

Elmore, Madison, Marengo, Mobile and Walker stopped issuing marriage licenses on January 6, 2016 following Roy Moore's order (see above). However, Madison, Mobile and Walker began reissuing marriage licenses to all couples a few days later.[119][120]

Following Judge Granade's final injunction in the case of Strawser v. Strange in June 2016, probate courts from both Clarke and Washington reiterated that they would not issue marriage licenses to either same-sex or different-sex couples.[69]

A few days ahead of the first anniversary of the Obergefell v. Hodges decision, the American Civil Liberties Union of Alabama found that 12 Alabamian counties were still not granting marriage licenses to same-sex couples. 11 of these counties issued no marriage licenses at all, either to opposite-sex or to same-sex couples: Autauga, Bibb, Choctaw, Clarke, Cleburne, Covington, Elmore, Geneva, Marengo, Pike and Washington. Coosa County continued to deny marriage licenses specifically to same-sex couples, citing "technical difficulties" but admitting that it had no plans to remedy the situation.[127]

By October 2016, the counties of Bibb, Coosa and Marengo had begun issuing licenses to couples regardless of gender, while the other nine counties continued to refuse to issue any licenses.[128] At least six counties which were issuing marriage licenses nevertheless refused to preside over any marriage ceremonies.[128]

In June 2017, Ballotpedia confirmed that Choctaw County had begun issuing marriage licenses to all couples. Two years after the Obergefell v. Hodges decision, eight Alabamian counties still refused to issue marriage licenses to any same-sex or opposite-sex couples: Autauga, Clarke, Cleburne, Covington, Elmore, Geneva, Pike and Washington.[129] By June 2018, the same eight counties were still not issuing marriage licenses.[130] The situation was unchanged as of May 2019.

All 8 remaining counties began issuing marriage certificates on August 29, 2019, following a change in state law replacing marriage licenses and ceremonies with marriage certificates in order to keep probate judges from violating their consciences by presiding over ceremonies of same-sex couples.[116]

Marriage statistics

According to the Alabama Department of Public Health, at least 545 same-sex couples obtained marriage licenses and wed between February 9 and March 3, 2015.[131]

By the end of 2015, 1,622 same-sex marriages had occurred in the state of Alabama. These marriages accounted for about 4% of all marriages performed in the state that year.[132]

936 and 715 same-sex couples married in Alabama in 2016 and 2017, respectively, with Jefferson, Montgomery, Madison, Mobile and Baldwin counties being the most popular.[130]

2018 estimates from the United States Census Bureau showed that there were about 9,000 same-sex households in Alabama. 61% involved married couples.[133]

Public opinion

Public opinion for same-sex marriage in Alabama

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
Public Religion Research Institute	April 5-December 23, 2017	1,100	?	41%	51%	8%
American Values Atlas/Public Religion Research Institute	May 18, 2016-January 10, 2017	1,485	?	41%	48%	11%
American Values Atlas/Public Religion Research Institute	April 29, 2015-January 7, 2016	1,308	?	33%	60%	7%
New York Times/CBS News/YouGov	September 20 – October 1, 2014	692 likely voters	± 2.6%	28%	60%	12%
Mobile Register-University of South Alabama	March 2004	421 residents	?	?	80%	?

See also

• LGBT rights in Alabama
• Status of same-sex marriage
• Timeline of same-sex marriage in the United States

Notes

1. Judge Granade is the granddaughter of Judge Richard Rives who, in 1956, wrote the opinion in Browder v. Gayle that found racial segregation of Montgomery's bus system unconstitutional.[2]
2. The United States District Court for the Southern District of Alabama covers the following 13 counties: Baldwin, Choctaw, Clarke, Conecuh, Dallas, Escambia, Hale, Marengo, Mobile, Monroe, Perry, Washington, and Wilcox.
3. Judge Granade is the granddaughter of Judge Richard Rives who, in 1956, wrote the opinion in Browder v. Gayle that found racial segregation of Montgomery's bus system unconstitutional.[19]
4. The United States District Court for the Southern District of Alabama covers the following 13 counties: Baldwin, Choctaw, Clarke, Conecuh, Dallas, Escambia, Hale, Marengo, Mobile, Monroe, Perry, Washington, and Wilcox.
5. AL.com is jointly published by three newspapers: the Birmingham News, Huntsville Times, and Mobile's Press-Register.[29]
6. The case has been referred to as Ex parte State ex rel. Alabama Policy Institute and Alabama Citizens Action Program v. King and State v. King.
7. One source reports that of March 4, Macon County was still issuing licenses.[109] It is possible that this was true in the morning, and that Macon had stopped issuing all licenses by the afternoon, as other sources reported.[110]

References

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3. Gray, Jeremy (January 25, 2015). "Alabama probate judge association: 'We cannot issue marriage licenses to same-sex couples'". AL.com. Retrieved January 25, 2015.
4. "Governor Declares Same-Sex Marriages Illegal in Alabama". AP. August 30, 1996. Retrieved June 29, 2014.
5. James, Fob (August 29, 1996), Alabama Executive Order 24, Alabama Department of Archives and History, retrieved September 8, 2017
6. "Same-sex marriages banned in Alabama". Tuscaloosa News. April 27, 1998. Retrieved January 24, 2015.
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8. Baptist Press: Michael Foust, "Ala. becomes 20th state to pass marriage amendment," June 7, 2006, accessed July 5, 2011
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30. "Our view: It is time to afford Alabama's gay men and women their equal and unalienable rights". AL.com. January 25, 2015. Retrieved January 26, 2015.
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38. "Alabama Chief Justice Roy Moore orders judges not to issue same-sex marriage licenses". AL.com. February 8, 2015. Retrieved February 8, 2015.
39. "Roy Moore Order to Alabama Probate Judges". Scribd.com. Retrieved February 8, 2015.
40. Geidner, Chris (February 9, 2015). "U.S. Supreme Court Denies Stay In Alabama Same-Sex Marriage Case". BuzzFeed News. Retrieved February 9, 2015.
41. Somashekhar, Sandhya (February 9, 2015). "Judicial defiance in Alabama: Same-sex marriages begin, but most counties refuse". Washington Post. Retrieved February 16, 2015.
42. Karlan, Sarah (February 9, 2015). "The Love Story Behind Alabama's First Legally Married Same-Sex Couple". BuzzFeed News. Retrieved February 10, 2015.
43. Kirby, Brendan (February 9, 2015). "No marriages in Mobile on Monday; probate judge seeks 'clarification' from Alabama high court". AL.com. Retrieved February 9, 2015.
44. "Statement in Response". Office of the Attorney General. Retrieved February 9, 2015.
45. "Governor Bentley Issues Statement on Issuance of Same Sex Marriage Licenses". Office of the Governor. Retrieved February 9, 2015.
46. "Motion for Contempt". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 9, 2015.
47. "Order denying plaintiffs' motion". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 9, 2015.
48. Lesniewski, Niels (February 9, 2015). "Sessions Blasts 'Activist Judiciary' on Gay Marriage in Alabama". Roll Call. Retrieved February 10, 2015.
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50. "Order". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 10, 2015.
51. "Order". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 12, 2015.
52. Toner, Casey (February 12, 2015). "Gay marriage begins in Mobile (finally)". AL.com. Retrieved February 12, 2015.
53. "Jefferson County Probate Judge Alan King's motion to intervene". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 16, 2015.
54. "Plaintiffs' Emergency Motion for Enforcement of Injunction". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 17, 2015.
55. "Proposed Intervenor King's Motion for Preliminary Injunction". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 17, 2015.
56. "Attorney General's Opposition to Plaintiffs Motion for Enforcement". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 17, 2015.
57. "Order Denying Jefferson County Probate Judge Alan King's motion to intervene". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 20, 2015.
58. "Order denying Plaintiffs' motion for enforcement of injunction". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 20, 2015.
59. "Don Davis Emergency Motion for Stay". Scribd.com. U.S. District Court for Southern Alabama. Retrieved March 7, 2015.
60. "Order: Plaintiffs to file response to motion for stay by Friday, March 13, 2015". Scribd.com. U.S. District Court for Southern Alabama. Retrieved March 7, 2015.
61. "Second Motion to Amend Complaint". Scribd.com. U.S. District Court for Southern Alabama. Retrieved March 7, 2015.
62. Geidner, Chris (March 6, 2015). "LGBT Legal Groups Seeks Statewide Ruling In Alabama's Federal Court Marriage Case". BuzzFeed News. Retrieved March 7, 2015.
63. "With Gay Marriage on Hold, Alabama Judge OKs Lesbian Divorce". New York Times. Associated Press. March 13, 2015. Retrieved March 13, 2015.
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66. "Order". Scribd.com. U.S. District Court for Southern Alabama. March 28, 2015. Retrieved March 18, 2015.
67. "Order". Scribd.com. U.S. District Court for Southern Alabama. April 24, 2015. Retrieved April 24, 2015.
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69. Quynh, Jacqueline (June 9, 2016). "Another Victory for Same Sex Couple in Federal Lawsuit". WKRG.
70. Brooks, Karen (June 9, 2016). "Judge issues final order upholding Alabama same-sex marriage". Reuters.
71. "Complaint and request for immediate injunctive relief". U.S. District Court for Southern Alabama. Retrieved February 9, 2015.
72. Tillman, Zoe (February 10, 2015). "Clash Over Alabama Gay Marriage Licenses Heads to Court". National Law Journal. Retrieved February 10, 2015.
73. "Order Ex Parte Don Davis". Alabama Judicial System. Retrieved February 11, 2015.
74. "Order". Scribd.com. U.S. District Court for Southern Alabama. Retrieved February 10, 2015.
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76. "Brief of Amicus Curiae Equality Alabama" (PDF). Retrieved February 13, 2015.
77. "Response of Judge Don Davis". Scribd.com. Alabama Supreme Court. Retrieved February 18, 2015.
78. "Respondents King and Ragland's Joint Answer". Alabama Supreme Court. Retrieved February 18, 2015.
79. Robertson, Campbell (March 3, 2015). "Alabama Court Orders a Halt to Same-Sex Marriage Licenses". New York Times. Retrieved March 4, 2015.
80. "ODavis Brief in support of motion to extend deadline". Scribd.com. Alabama Supreme Court. Retrieved March 7, 2015.
81. "Order enjoining Davis". Scribd.com. Alabama Supreme Court. Retrieved March 11, 2015.
82. Geidner, Chris (March 17, 2015). "Alabama Probate Judge Faces Conflicting Commands In Same-Sex Marriage Cases". BuzzFeed News. Retrieved March 17, 2015.
83. "Application for Rehearing". Scribd.com. Alabama Supreme Court. March 18, 2015. Retrieved March 18, 2015.
84. "Order denying Judge Reed's application for rehearing". Scribd.com. Alabama Supreme Court. Retrieved March 23, 2015.
85. "Complaint and Request for Preliminary and Permanent Injunctive Relief". Scribd.com. U.S> District Court for Southern Alabama. Retrieved February 25, 2015.
86. "Motion to Dismiss". Scribd.com. U.S. District Court for Southern Alabama. Retrieved March 25, 2015.
87. Arian Campo-Flores (June 27, 2015). "Alabama Probate Judges Begin Issuing Licenses for Same-Sex Marriages". Wall Street Journal. Retrieved June 29, 2015.
88. At least 22 Alabama counties will not issue same-sex marriage licenses
89. Townsend, Haley. "Alabama Supreme Court order creates confusion over same-sex marriage licenses". WIAT.
90. "Alabama chief justice walks back remarks on same-sex marriage". The Hill. June 29, 2015. Retrieved June 29, 2015.
91. "Plaintiffs' Motion for Clarification as to Preliminary Injunction Order". Equality Case Files. Retrieved July 1, 2015.
92. "Order granting motion for clarification". Equality Case Files. Retrieved July 1, 2015.
93. "#ALMarriage: County Information". Freedom to Marry. February 17, 2015. Archived from the original on March 4, 2015. Retrieved February 18, 2015.
94. New Marriage Equality Legal Threats a Deliberate Tactic to Create Chaos
95. Some counties refusing to issue gay-marriage licenses
96. Majority Of Alabama Counties Now Issuing Marriage Licenses To Same-Sex Couples
97. Most Alabama Judges Begin to Issue Licenses for Same-Sex Marriages
98. Elmore judge will no longer issue same-sex marriage licenses
99. Some counties resist and others change course as gay marriage confusion drags on
100. A majority of Alabama counties are now issuing same-sex marriage licenses
101. More counties in Alabama issue marriage licenses to same-sex couples
102. Marriage Licenses in Choctaw Co. Have Been Put on Hold
103. Dale, Henry, Barbour counties now issuing same-sex marriage licenses
104. No marriage licenses for Houston County until Supreme Court ruling
105. Marshall Co. halts issuing all marriage licenses
106. Houston And Geneva Counties Not Issuing Same-Sex Marriage Licenses.
107. We're nearly at Dothan; Roll marriage tide, roll!
108. Robertson, Campbell (March 3, 2015). "Alabama Court Orders a Halt to Same-Sex Marriage Licenses". New York Times. Retrieved March 4, 2015.
109. Alabama Counties Stop Issuing Marriage Licenses To Same-Sex Couples
110. HRC Unable to Confirm Any AL Counties Issuing Licenses to Same-Sex Couples
111. Marriage equality grinds to a halt in Alabama
112. "Alabama Marriage License Vote". WTOK.com. September 17, 2015.
113. "Alabama Senate approves replacing marriage licenses with contracts". AL.com. March 15, 2016.
114. Alabama Senate Decides To Abolish Marriage Licenses Rather Than Give Them To Gay Couples
115. AL SB13 | 2018 | Regular Session
116. Kirby, Brendan. "Here's how getting married in Alabama will change with no marriage licenses". FOX10 News. Retrieved June 17, 2019.
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119. Broverman, Neal (January 20, 2016). "At Least 11 Alabama Counties Refuse to Comply With Marriage Equality". The Advocate.
120. Toner, Casey (January 7, 2016). "Mobile County to issue marriage licenses (again)". Alabama Local News.
121. Jarvie, Jenny (January 13, 2016). "Gay marriage order puts spotlight again on the 'Ayatollah of Alabama'". Los Angeles Times. Retrieved January 13, 2016.
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125. Randall C. Marshall, quoted in Kent Faulk, "Alabama Supreme Court dismisses petitions opposing gay marriage", AL.com, March 4, 2016.
126. Local government responses to Obergefell v. Hodges
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131. "More than 500 same-sex couples married in Alabama". Decatur Daily. Associated Press. April 9, 2015. Retrieved April 10, 2015.
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External links

• Searcy v. Strange, U.S. District Court for Southern Alabama, January 23, 2015
• Strawser v. Strange, U.S. District Court for Southern Alabama, January 27, 2015
• Strawser v. Strange, Transcript of Hearing, December 18, 2014
• State of Alabama v. King, Supreme Court of Alabama, March 3, 2015