MOBILE, Ala. — A federal judge will hear arguments Thursday on whether to order local officials here to begin issuing marriage licenses to same-sex couples, as some Alabama counties granted the licenses for a second day, but most continued to refuse.
Late Monday, gay rights advocates asked Judge Callie V.S. Granade of the US District Court in Mobile to direct the probate judge here, Don Davis, to issue the licenses. The state’s second-most populous county, Mobile was by far the largest where officials refused to issue licenses to anyone Monday.
The state attorney general, Luther Strange, filed a response Tuesday, opposing the request.
The county Probate Court judges who issue the licenses have been caught in an unusual power struggle between state and federal jurists, sowing confusion as to how to proceed — confusion that now appears set to persist at least until Thursday’s hearing.
Granade ruled last month that Alabama’s ban on gay marriage was unconstitutional. But Sunday night, Alabama’s chief justice, Roy S. Moore, ordered that marriage licenses not be granted to same-sex couples.
Lawyers who challenged the state’s ban, and many legal scholars, argue that the law is clear that a federal court order trumps the direction of Moore.
In some counties, including those that encompass the cities of Birmingham, Montgomery, and Huntsville, probate judges granted licenses to same-sex couples for the first time Monday. Several smaller counties that had refused to issue licenses Monday changed course Tuesday and said they would, although it was not clear whether they had any takers. But 44 of Alabama’s 67 counties, including Mobile, still were not granting them, according to a tally kept by the Human Rights Campaign, a gay-rights group.
The scene was much quieter Tuesday at the Mobile County Courthouse, where dozens of would-be spouses and their supporters had lined up the day before. Just six same-sex couples gathered Tuesday, trying once again to apply for a license. But the marriage license window was closed.
Granade’s decision striking down the state’s marriage law took effect Monday, and the US Supreme Court turned down a request by state officials to stay that ruling, pending appeals.
Later that day, after Davis refused to issue licenses, same-sex marriage advocates asked Granade to hold him in contempt of court, but she turned down that request, partly on the basis that he was not a party named in the underlying lawsuits. On Monday night, lawyers filed two new actions, naming Davis and state officials as defendants.
On Monday, lawyers for Davis petitioned the Supreme Court of Alabama for guidance regarding “the scope and the effectiveness” of Moore’s administrative order.
Their filing said Moore’s order had been called into question by the US Supreme Court’s action, and the likelihood that the federal judge, Granade, would “shortly exert personal jurisdiction” over the matter.