In a post yesterday, I took issue with a small part of an excellent Emily Bazelon story on whether Alabama Chief Justice Roy Moore went to far in saying probate judges were not bound by a federal district court ruling holding Alabama’s same sex marriage ban unconstitutional. I said Moore was right: the probate judge refusing to act was not a party, and therefore was not directly bound by the federal court order.
Well plaintiffs went into court against the Mobile probate judge who refused to grant same sex marriages, and today the same trial court issued this order directly requiring the probate judge to perform same sex marriages.
Note that it does NOT bind other probate judges who refuse. And so this may be foxhole to foxhole litigation if that is necessary. In fact, some probate judges could go to other federal courts seeking orders that they need NOT conduct such marriages, raising some thorny federal courts issues.
But even with such resistance, it will be a matter of days or weeks before all of Alabama will have to comply.