A probate judge in Alabama is asking the state Supreme Court to issue an order that will recognise same-sex marriage licences but will bar its issuance in the state.
In a filing dated Oct. 5, Probate Judge John Enslen of Elmore County "requests this Supreme Court of the State of Alabama to issue a declaratory judgment, order, and decree holding that the State of Alabama will honor and recognize same-sex marriage licenses . . . but further holding that the State of Alabama will not issue state same-sex marriage licenses or recognize purported state same-sex marriage licenses that have been issued in contradiction to the current Constitution of the State of Alabama or the current state law of any other sister state."
Probate judges are the only ones authorized to issue marriage licences in Alabama, according to WND.
A case is pending with the Alabama Supreme Court on how the state should implement the US Supreme Court's ruling in June which legalised same-sex marriage nationwide.
Enslen said the federal government should be the one to issue same-sex marriage licences.
"A search of the Code of Federal Regulations reveals that there are 19,169 sections that contain the word 'license,' 'certification,' ' permit' or a combination thereof," he said in his petition. "Federal agencies, boards and commissions have been established by the federal government to regulate the exclusive issuance and administration of a multitude of federal licenses."
He added, "The federal government and its many agencies are accustomed to issuing and administering licenses that have for their creative basis a grant of authority that is grounded in the federal constitution or a judicial interpretation thereof."
"The Obergefell ruling gave birth to a new, federally created, US Constitution-based, civil right to same-sex marriage or, as some have referred to it, sodomy-based marriage. But the recognition of a new, federal civil right is an entirely different matter from the federal government's authority to compel the state of Alabama, or any other state, to issue that particular type of federal-based marriage license," he said.
Enslen said "the new same-sex marriage license is a child of the federal government, not the State of Alabama."
Legal scholars from Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University earlier said state and federal officials should treat the Supreme Court ruling as "anti-constitutional and illegitimate."
