Alabama resistance and federal law will collide Thursday in Mobile, when U.S. District Judge Callie Granade holds a hearing on whether to force state probate judges to grant marriage licenses to same-sex couples.
Granade has already ruled once on the case. Last month she overturned the state's ban on same-sex nuptials as violating the U.S. Constitution, but stayed her ruling until Monday to give the state time to prepare.
But on Sunday night, the chief judge of Alabama's Supreme Court, Roy Moore, ordered local judges not to obey Granade.
"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" state laws banning same-sex marriage, Moore wrote in his administrative order.
When Monday dawned, some counties allowed same-sex couples to get marriage licenses and to wed. Others limited licenses to heterosexual couples. Still others refused to issue marriage licenses to anyone. The division persisted on Tuesday and Wednesday.
The most prominent judge to deny licenses to same-sex couples is Mobile Probate Judge Don Davis. Granade will hear a request from several couples to order Davis to issue them marriage licenses. The decision is expected to cascade to other counties where judges have been reticent.
"It has been frustrating because we've done everything right, but the door is still closed," said attorney Christine Herandez, who will represent a group of same-sex couples at the afternoon hearing. She told the Los Angeles Times she visited the Mobile County probate office and "the door is literally closed."
Many Alabamans don't appear to mind. The nonpartisan Public Religion Research Institute polled the nation about gay marriage last year. In most of the country, 54% were in favor and 38% opposed. But in Alabama, those numbers were more than reversed: 38% in favor, 59% opposed.
Hernandez accused her legal foe in the case — Moore — of pandering to popular opinion.
"It's just something in Alabama's nature, to fight the federal government," she said; small-town politicians here campaign on promises to fight Obamacare even though their positions have no bearing on it. And it's why, Hernandez said, Moore has squared off against the federal court: "He's grandstanding."
So, she said, her office served Moore personally with papers summoning him to Mobile for Thursday's hearing.
"His order is at the top of the list," she said. "We expect him to be there to defend his order."
But the state Supreme Court's chief of staff, Ben DuPré, said the papers did not compel Moore to attend.
Neither "the chief justice nor his representatives will be at the Mobile hearing," DuPré said.
Moore has made a career of controversy. He came to prominence as an Etowah County judge in the 1990s when he refused to remove a 18-by-24-inch plaque of the Ten Commandments from his courtroom wall.
After riding conservative support to win a seat on the state Supreme Court — the justices are popularly elected in partisan contests — he had a 4-foot-tall, nearly 3-ton monument to the Ten Commandments installed in the high court's rotunda in the middle of the night.
That prompted lawsuits from organizations including the American Civil Liberties Union and the Southern Poverty Law Center, which argued that the memorial breached the legal separation between church and state.
A federal judge ordered Moore to have the monument removed, and the U.S. Supreme Court refused to hear his appeal. Moore's associate justices on the state high court sided with the federal judge as well. Moore was removed from office two years later, in 2003.
But he remained popular among Alabama conservatives for his values and defiance of federal judges. He won a six-year term on the court in the 2012 election, defeating two Republican challengers.
The U.S. Supreme Court is scheduled to address same-sex marriage this term, but on Monday it refused Alabama's plea to intervene. That was widely seen as a signal that the high court is likely to rule in favor of same-sex marriage across the nation.
Staff writers Matt Pearce and Michael Muskal in Los Angeles contributed to this report.
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