A federal appeals court in Atlanta on Tuesday denied a request to extend a a delay on a ruling striking down Alabama's same-sex marriage ban, meaning gay couples will be able to start getting married on Feb. 9.
The Alabama Attorney General's Office immediately said it would ask the U.S. Supreme Court to intervene, although the justices have rebuffed similar requests from other states.
"I am disappointed in the 11th U.S. Circuit Court's decision not to stay the federal district court's ruling," Attorney General Luther Strange said in a prepared statement. "The confusion that has been created by the District Court's ruling could linger for months until the U.S. Supreme Court resolves this issue once and for all."
U.S. District Judge Callie V.S. "Ginny" Granade in Mobile ruled one week ago that Alabama Marriage Protection Act and the Sanctity of Marriage Amendment to the state constitution both violated the U.S. Constitution.
She agreed to put the ruling on hold for 14 days to give the Alabama Attorney General's Office an opportunity to make its case to the appeals court that the delay should be extended until the U.S. Supreme Court decides another gay marriage case that both sides expect to settle the issue nationwide.
But a three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals issued a two-page order denying a request to delay Granade's orders in favor of two Mobile couples who had sued. Barring further action, those orders will take effect Feb. 9. Attorneys for plaintiffs Cari Searcy and Kim McKeand expressed elation at the ruling.
"I'm very excited about it. I just got off the phone with Kim and Cari. They're thrilled," said attorney Christine Hernandez. "It's a great day for Alabama."
Added co-counsel David Kennedy: "We're very, very pleased with the 11th Circuit's ruling and very pleased that all Alabamians will be able to enjoy the same rights under the Constitution. It's going to be sooner rather than later."
Hernandez and Kennedy asked Granade to lift the stay immediately in light of the appellate ruling, but Granade denied that request later Tuesday.
The Alabama Probate Judges Association last week reversed an earlier opinion that Granade's ruling applied only to the Attorney General's Office. And several probate judges across the state were prepared even before that to begin issuing marriage licenses to gay couples.
Alabama Gov. Robert Bentley expressed disappointment with the decision.
"The issue of same sex marriage is a complicated one that involves all levels of government," he stated. "My request to the 11th Circuit was simply to ask that the stay be held until the Supreme Court can rule once and for all this year or pending the fully briefed 11th Circuit appeal of the issue. I support the Attorney General's decision to ask the U.S. Supreme Court for a stay of the 11 Circuit's decision."
In an appearance in Mobile on Monday, Bentley reiterated his support for an indefinite delay.
"I think that the best thing that could happen is what we asked for - and the attorney general has asked for - is a total and complete stay on everything," he said.
In the first case that resulted in Granade's ruling, Searcy and McKeand sued last year after the Alabama courts had upheld a decision by Mobile County Probate Judge Don Davis to reject a petition for a second-parent adoption. Under Alabama law, the state considered only McKeand - the birth mother - as a bona fide parent of the boy both women had raised since birth.
In cases where there is no other biological parent, second-parent adoptions are routinely granted to heterosexual married couples. The 2005 California marriage of Searcy and McKeand did not count in Alabama, though.
The couple's case was one of four pending in Alabama's federal courts. Last week, Granade ruled in favor of a second gay couple, deciding that Alabama violated the Equal Protection Clause of the 14th Amendment when it denied Mobile residents James Strawser and John Humphrey a marriage license.
Hernandez said that as soon as the order takes effect - whether that is Monday or sooner - she will re-file the adoption petition on behalf of Searcy.
"It's already signed and ready to go," she said. "The Is are dotted and the Ts are crossed."
While supporters cheered Granade's ruling, it sparked a fierce backlash from opponents, who noted that 81 percent of Alabama voters backed the constitutional amendment banning the practice. Alabama Supreme Court Chief Justice Roy Moore has argued that only the U.S. Supreme Court can overrule a state law and has advised probate judges to ignore Granade's ruling.
With the appellate court's ruling, Alabama will become the 37th state, plus, the District of Columbia, where gays can get married. The only way that can be reversed now is if the 11th Circuit Court of Appeals rules in Alabama's favor on the merits of the case - considered unlikely - or if the Supreme Court upholds a decision by the Sixth Circuit Court of Appeals in Cincinnati reversing lower court rulings striking down same-sex marriage bans in four states.
A ruling on that case is expected by the summer.
Strange made clear he will continue to fight.
"My office vigorously defended the constitutionality of Alabama's marriage laws in the Searcy and Strawser cases, and we have appealed the court's orders in those cases," he said in his statement.
Updated at 10:44 a.m. to include reaction from the plaintiffs' lawyers. Updated at 11:15 a.m. to include Attorney General Luther Strange's vow to ask the Supreme Court to intervene. Updated at 12:46 p.m. to include reaction from Gov. Robert Bentley.