MONTGOMERY, Ala. (CN) - Attorneys for several gay individuals and civil rights groups asked a federal judge to force probate judges across the state to resume issuing marriage licenses to same-sex couples.
It has been nearly a week since the Alabama Supreme Court halted the issuance of marriage licenses to same-sex couples, contending that Alabama law only allows marriage between one man and one woman.
The March 3 opinion flew in the face of a January decision by U.S. District Judge Callie V.S. Granade, who found Alabama's ban on same-sex marriage unconstitutional under the Equal Protection and the Due Process clauses of the U.S. Constitution. Granade stayed her decision to give the state time to appeal, but those appeals, first to the 11th Circuit, and later to the U.S. Supreme Court, came up short as far as the state was concerned.
Fearing the U.S. Supreme Court would decide not to intercede and extend Granade's stay - an assumption that ultimately proved correct, the Alabama Supreme Court's chief justice, Roy Moore, entered an administrative order saying probate judges had no obligation to obey Granade, and that in fact, the federal judge's order violated the Alabama Marriage Protection Act or Alabama's Sanctity of Marriage Amendment.
This caused confusion among many probate judges. On Tuesday, at the urging of the conservative Alabama Policy Institute and the Alabama Citizens Action Program, the Alabama Supreme Court held that the family is "the fundamental unit of society. Marriage is the foundation of the family."
The court challenged the federal court's decision that Alabama's marriage laws violate the Equal Protection Clause and it claims that "traditional marriage laws do not discriminate based on gender" because men and women are prohibited from doing the same thing - marrying an individual of the same gender.
Talking about the marriage with someone of the opposite sex, the court said that procreation "is almost universally acknowledged to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society." The court also finds that society relies on families built on strong marriages to produce "upright, decent people who make for reasonably conscientious, law-abiding citizens" who benefit "from the love and care of both mother and father."
Although the court acknowledged that other courts have struck down traditional marriage laws on the basis of procreation and the government recognizes the unions between married couples who cannot have children, it says "this argument is nothing more than an attempt to use the exception to disprove the rule. The fact that many people do not vote in elections does not invalidate the value of using elections to allow people to chose (sic) their government leaders."
Proponents of same-sex marriage acted Friday to set the state for a federal court showdown. Their motion asks Judge Granade to let the parties file an amended complaint establishing a class that would include all same-sex couples wishing to marry in Alabama, as well as every probate judge in the state.
It also asks Judge Granade to direct the state's probate judges to "refrain from enforcing all Alabama laws and orders that prohibit same-sex couples from marrying or that deny recognition of the marriages of same-sex couples."
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