The Supreme Court refused to issue a stay on same-sex marriages in Alabama today, sparking angry dissents from Justices Thomas and Scalia.
The Supreme Court on Tuesday denied Alabama's request to halt legal same-sex marriage in the state until the justices rule on the issue later this year, sparking a scathing dissent by two of the Court's most conservative members.
The dissent by Thomas, joined by Justice Antonin Scalia, accused the other justices of failing to show "the people of Alabama the respect they deserve" by letting the lower court ruling stand while the case is pending before the Supreme Court. He argued that the order reveals the Court's intention to rule for same-sex marriage.
"This acquiescence may well be seen as a signal of the Court’s intended resolution of that question," Thomas wrote. "This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is."
UC Irvine law professor Rick Hasen thinks the dissent was their way of lamenting the inevitable outcome.
What struck me about today’s dissent was Justice Thomas’s recognition that these stay orders signal what is likely coming on the merits: a constitutional right to same sex marriage. (I think at this point the only question is the vote: I can see 5-4, 6-3 (with Roberts joining Kennedy and the liberals) or perhaps, though least likely 7-2 (with Alito coming too).) The tone was one of resignation of what is coming and a lament about the loss of the power of the states.
However, there is still Alabama's Chief Justice Roy Moore to contend with. Late Sunday, he ordered Alabama probate judges to refuse to issue same-sex marriage licenses. After the Supreme Court's ruling, it leaves them in the unenviable position of deciding which master they're going to serve.
In Alabama, probate offices around the state were groping over how to proceed. Three probate judges have said they will not issue licenses to any couples, gay or straight, said Alberto Lammers, a spokesman for the National Center for Lesbian Rights.
In Mobile, at least eight couples waited at the probate court, but at 8:20 a.m. the windows remained closed as attorneys met with officials behind closed doors.
Still, attorney Christine Hernandez, who represents one of the couples who challenged the ruling, reassured the crowd.
“It looks like it’s going to happen,” she reported. “We’ve got a Supreme Court ruling.”
Legal wrangling aside, it's remarkable to think there will be same sex weddings taking place in Alabama today. In this area, at least, there has been progress.