MOBILE, Ala. (AP) — Same-sex marriage spread farther across Alabama on Tuesday as more courthouses issued licenses to gays and lesbians, yet some counties still defied a federal judge's order, so couples took their fight back to court.
The dispute and confusion headed toward a showdown in federal court set for Thursday in Mobile, where gay couples have waited for two days in a courthouse after officials quit issuing marriage licenses altogether — even for heterosexual couples — rather than sell them to same-sex couples.
James Strawser, 51, and his partner John Humphrey, 38, who filed a lawsuit for the right to marry in Alabama, sat outside the shuttered marriage license window at the Mobile County courthouse.
"Come on, you've got a federal order. Open those windows," Strawser said, to no avail.
U.S. District Judge Callie Granade's order overturning Alabama's same-sex marriage ban took effect Monday. Alabama Chief Justice Roy Moore on Sunday night ordered the state's probate judges to not issue the licenses, arguing that probate judges were not bound by Granade's decision since they were not defendants in the lawsuit that led to the order.
President Barack Obama, in an interview with BuzzFeed News, was asked about Moore's resistance and the comparisons some have made to Alabama Gov. George Wallace's efforts to fight integration 50 years ago.
"I won't say it's a perfect analogy, but there's a core principle here that's at stake, which is we have a supremacy clause in our Constitution," Obama said.
"My recollection is that Judge Moore had a similar problem with a federal court ruling that you couldn't put a huge ... Ten Commandments statue in the middle of your courthouse and, ultimately, federal law was obeyed and I think that the same thing will end up happening here," Obama said.
Granade on Jan. 23 ruled that the state's marriage ban was unconstitutional in a case brought by two women seeking to have their California marriage recognized by Alabama. She struck a second blow to the law on Jan. 26 in the case brought by Humphrey and Strawser, who were seeking to get married.
At least 19 of the state's 67 counties had issued wedding licenses to same-sex couples or said Tuesday they would do so, compared to just seven on Monday. The exact number of counties refusing to sell licenses wasn't immediately clear.
Elmore County Probate Judge John E. Enslen said in a statement Tuesday that "the dust has quickly settled" and it was clear same-sex marriages were allowed.
"Whether national or not, it now applies to Alabama," he said.
Limestone County Probate Judge Charles Woodruff began issuing same-sex licenses Tuesday after seeking legal advice because of the conflicting opinions. "I wasn't sure what the law was," Woodruff said. "I have never received an order from the chief justice of the Supreme Court in an email before."
Robert Povilat, 60, and Milton Persinger, 47, were among the couples waiting in Mobile for a second day on Tuesday. They said they would return every day until they were able to get a marriage license there.
"We sat and waited all day for them to open a window," Povilat said. "They never did."
Mobile County Probate Judge Don Davis said he closed the marriage-license section of his office because of "conflicting orders" from Moore and Granade. Davis said he will keep the section closed until he gets additional clarification, which could come Thursday.
Granade has scheduled a hearing after Strawser and Humphrey asked the court to force Mobile County to issue same-sex marriage licenses. A second lawsuit filed by other couples against the Mobile County probate judge also names Moore as a defendant.
Strawser said he hoped the Thursday hearing would settle the issue, once and for all.
The case in Mobile only seeks to force that county's judge to issue the licenses. However, a lawyer for Strawser and Humphrey said she hoped Granade's decision would be "instructive" to the other probate judges.
Reeves reported from Birmingham.