With Alabama tentatively fated to be forced to recognize same-sex marriages at the beginning of the day on Monday, observers on all sides of the issue have been watching and waiting to see how the U.S. Supreme Court would respond to a request from Alabama attorney general Luther Strange that it “stay” the lower court’s weakly argued ruling declaring such marriages to be a constitutional right.
One would imagine that if a stay were coming, it would come before local government offices open on Monday. Thus, the lack of an announced decision so far tends to give more hope to same-sex proponents than opponents. If the court is not going to stay the district judge’s ruling, then time is not as much of the essence.
Of course, especially with a a time zone an hour ahead of Alabama time, the Supreme Court still could technically release a “stay” ruling Monday morning before Alabama probate judges start issuing licenses they might later need to — what, to revoke? to leave as outliers? — to somehow regret if Alabama’s Constitution is reinstated and traditional marriage thus affirmed.
Whatever one thinks of the wisdom of same-sex marriage, the decision imposing it should make ill just about any lover of proper jurisprudence, as I explained a week ago for the papers in Mobile, Birmingham, and Huntsville.
The question remains: What happens to the newly recognized same-sex arrangements if, five months from now, the Supreme Court correctly decides that the Constitution is silent on same-sex marriages, and thus that the decision to recognize them (or not to do so) remains squarely within each state’s sovereign authority?