(CN) - The Alabama Supreme Court on Tuesday night order probate judges across the state to stop issuing marriage licenses to same-sex couples, placing the state on a collision court with a federal judge who tossed the state's gay marriage ban two months ago.
By a 7-1 vote, the state's highest court ruled that "Alabama law allows for marriage between only one man and one woman," and that the state's probate judges have a duty not to issue any licenses to a couple that doesn't comport to that law.
The court's 148-page opinion then goes on to harshly critique U.S. District Judge Callie V.S. Granade's January ruling in favor of same-sex marriage and he U.S. Supreme Court's 2013 ruling striking down parts of the federal Defense of Marriage Act.
Asserting that the family is the elemental basis of society, the majority wrote that, "Government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by state law."
They majority added, "We are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other."
The justices maintain that throughout its history Alabama has chosen the "traditional definition of marriage" and they see no reason for that to change now.
"Some other states, like New York, have more recently chosen the new definition. The United States Constitution does not require one definition or the other because, as the Windsor Court noted, '[b]y history and tradition,' and one should add, by the text of the Constitution, 'the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States.' ... That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary."
The majority concluded, "As it has done for approximately two centuries, Alabama law allows for "marriage" between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty."
Justice James Gregory Shaw, the lone dissenter, broke with his colleagues on several procedural grounds, and concluded he did "not see a way for this Court to act at this time."
"By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law," Shaw wrote.
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