Federal law always trumps state law, except by minute technicalities. With state courts taking the lead on same-sex marriage rights, some states resist these changes even when they come from the federal level.

On Feb. 9 the Federal District Court found Alabama’s ban on same-sex marriage unconstitutional, which would have meant the state would have to allow gay couples to attain marriage licenses. That morning, however, Alabama Chief Justice Roy Moore issued an order in response that prohibited probate judges, who issue marriage licenses, from serving gay couples.

According to Moore’s order, since the federal district case was brought against Alabama’s attorney general, who does not hold jurisdiction over probate judges, it was still unconstitutional for probate judges to grant same-sex marriage licenses.

“Justice Moore’s original ruling, that the probate judges don’t need to follow (the federal district court) decision is correct, but only in the most technical sense,” DePaul law professor Jeffrey Shaman said.

Whether judges followed Moore’s order showed mixed results. As of last Wednesday, about two thirds of Alabama’s 67 counties issued same-sex marriage licenses while the rest of the counties either permitted only heterosexual couples to marry or didn’t issue licenses at all.

“This is a pathetic, last-ditch attempt at judicial fiat by an Alabama Supreme Court justice — a man who should respect the rule of law rather than advance his personal beliefs,” Human Rights Campaign Legal Director Sarah Warbelow said in a press release Feb 9. “All probate judges should issue licenses tomorrow morning, and Chief Justice Roy Moore ought to be sanctioned.”

“Though technically correct that federal district courts don’t have direct impact on the probate judges when the case was brought against the attorney general, all couples have to do is file a lawsuit against the probate judge in the federal court,” Shaman said.

“Once (probate judges) have been to a second lawsuit where there’s absolutely no question (of issuing the marriage license).  There’s not even a technical argument against it,” Shaman said.   

The Alabama Department of Public Health planned to release revised same-sex marriage certificates to the probate judges on Feb. 6 and Moore said in his order that using these new documents would “confuse the system” and decrease the efficiency of state record keeping.

“(Moore) is just trying to score political points,” DePaul law professor David Franklin said.

Moore is often referred to as “The Ten Commandments Judge” after multiple lawsuits were brought against him over the span of 20 years for hanging a hand-carved tablet of the Christian guiding principles. Critics said many of his judgments were founded on his conservative principles and ruled unfavorably against the gay community.

Despite Moore’s resistance, Shaman believes the Supreme Court will rule in favor of granting same-sex marriage across the states.

According to Freedom to Marry, an organization promoting same-sex marriage trials in the Supreme Court, 37 states have legalized gay marriage and the rest have legal cases pending.

Goodridge vs. the Department of Public Health in Massachussets in 2003 was the trial that permitted same-sex marriage for the first time in a state.

“In the last 20 to 25 years the number of state courts have taken the lead in recognizing certain kinds of rights before the supreme courts have done so,” Shaman said.

Resistance by Moore to accept the ruling have drawn comparisons to the state’s conflict in the Brown vs. Board of Education case during the Civil Rights movement.

“This sort of struggle between federal and state judges has happened before. The most obvious example had to do with school desegregation,” Shaman said.

“There was massive resistance in a number of southern states to that decision,” Shaman said. “State and federal conflict arises every so often.”

Shaman cannot determine exactly what will happen if same-sex marriage is legalized nationally, but he expects there will be resistance.

“Some people are very opposed to this sort of thing,” Shaman said. “Some segments of various communities in souther and other states are very opposed to this.”

“But I don’t think resistance could be very effective because if the states refuse to issue marriage licenses to same-sex couples, all you have to do is go into federal court and the court will direct them to issue the same-sex marriage licenses,” Shaman said.