It’s Not Over: State and Local Governments Are Renewing the Fight Against Homosexual Marriage

The Alabama Supreme Court’s chief justice, Roy S. Moore, spoke to an anti-abortion group in Mississippi last year. He says he intends to continue recognizing the state's same-sex marriage ban. (Rogelio V. Solis/Associated Press)
The Alabama Supreme Court’s chief justice, Roy S. Moore, spoke to an anti-abortion group in Mississippi last year. He says he intends to continue recognizing the state’s same-sex marriage ban. (Rogelio V. Solis/Associated Press)

As the nation waits for the Supreme Court to decide whether same-sex marriages should be legal nationwide, another, more mundane front has opened in the wedding wars: the offices of the state and local officials who perform civil marriages and issue licenses.

Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses.

A second South Carolina bill would give some government employees the ability to opt out of issuing marriage licenses to same-sex couples if they objected on the basis of a “sincerely held religious belief.” In Utah, a bill would allow officials like judges, mayors and county clerks who solemnize marriages to opt out on religious grounds. In North Carolina, the president pro tempore of the State Senate, Phil Berger, a Republican, filed a similar bill Wednesday that would apply to “magistrates and registers of deeds.”

And in Alabama, a rift developed among probate judges who could not agree on whether a federal judge’s ruling Friday, which called the state’s current bans on same-sex marriage unconstitutional, meant that they actually had to begin issuing licenses.

In a letter Tuesday that cited Thomas Jefferson and the Bible, the chief justice of the State Supreme Court, Roy S. Moore, said he intended to continue recognizing Alabama’s same-sex marriage ban, in part because “nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.”

The federal judge, Callie V. S. Granade of United States District Court in Mobile, issued a second ruling in favor of same-sex marriage in a separate Alabama case on Tuesday but has stayed both rulings until Feb. 9. And in a three-page order Wednesday, Judge Granade signaled that she expected jurists to carry out her order if the stay is lifted.

Proponents of same-sex marriage contend that most of the state bills are almost certainly unconstitutional. And even in conservative-dominated statehouses, the chances of passage are unclear, given disagreements within the Republican Party on whether same-sex marriage should be a priority issue. Some experts say they could face sharp rebukes from judges who have ruled in favor of same-sex marriage.

“I think they’ll be angry,” said Risa L. Goluboff, a law professor at the University of Virginia who studies American legal history. “I think they’ll see this as outright defiance and treat it that way.”

Professor Goluboff said she expected the bills to be struck down if approved, although she said their authors might enjoy immediate political benefits. “It seems like, as a long-term strategy, this is not a good step,” she said. “But as something short-term to organize people around, it might not be a bad one.”

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SOURCE: The New York Times
Richard Fausset and Alan Blinder

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