(Reuters) - A U.S. judge in Alabama said on Tuesday she will hear arguments later this week on whether to force a local judge to issue marriage licenses to same-sex couples, a day after officials in most of the state refused to do so in defiance of the U.S. Supreme Court.
Lawyers for same-sex couples unable to obtain marriage licenses in Mobile County filed separate legal challenges against the county’s probate court judge late on Monday, part of a series of events echoing the civil rights struggle of the 1950s and 1960s.
Mobile County was the most populous of the 42 of Alabama’s 67 counties that continued to refuse to provide marriage licenses to gay couples on Tuesday, advocates said, down from 52 counties a day earlier.
U.S. District Court Judge Callie Granade, a President George W. Bush appointee who struck down the state’s ban on gay marriage as unconstitutional in a ruling that took effect on Monday, scheduled a hearing for Thursday.
The U.S. Supreme Court, in a strong signal in favor of gay marriage, refused on Monday to grant a request by Alabama’s Republican attorney general to keep the weddings on hold until the high court decides later this year whether laws banning gay matrimony violate the U.S. Constitution.
But Roy Moore, the conservative chief justice of the Alabama Supreme Court, ordered state judges to defy Granade’s ruling and uphold the state’s gay marriage ban.
Moore, who was removed from office in 2003 after refusing a federal order to take down a Ten Commandments monument he had erected in the state’s judicial building before being returned to his post by voters in 2012, has in fighting gay marriage used legal arguments and rhetoric that recall Southern resistance to racial integration.
In a recent letter to Alabama Governor Robert Bentley on the subject of gay marriage, Moore both advocated for asserting states’ rights and decried federal “judicial tyranny.”
Former Alabama Governor George Wallace, in his noted 1963 inaugural speech in which he vowed to maintain segregation, spoke of federal intervention into state affairs as “the tyranny that clanks its chains upon the South.”
“It’s not just that the words are similar,” said Ronald Krotoszynski, a constitutional law expert at the University of Alabama School of Law. “In some respects, the words are identical.”
But while elected officials in the Deep South have long profited politically by demonizing federal power, the parallels between the current situation and the civil rights struggle go only so far, said Sarah Warbelow, legal director for the Human Rights Campaign.
Unlike Wallace, Bentley has not defied the federal courts, she noted, and there has been little popular resistance to gay nuptials on the ground.
In an interview, Moore rejected the parallels between his positions and those of Wallace.
“Those decisions regarded racial inequality and this is about an institution that had existed for hundreds and even thousands of years before the U.S. Constitution took effect,” he said.
Bentley did not immediately respond to a message left with a spokeswoman.
In the case before Granade, gay rights advocates said any order she issues will apply specifically to Mobile but could compel other judges to begin issuing licenses.
“We don’t think it will be necessary to sue each of them, but we can if need arises,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in an email. The center is representing some of the plaintiffs.
Krotoszynski and other legal experts say Alabama judges will ultimately have little choice but to follow the federal court’s ruling.
Reporting by Jonathan Kaminsky in New Orleans; Editing by Colleen Jenkins, Sandra Maler and Eric Beech