Roy Moore made life tough for Bowden, other judges

Published 12:20 am Saturday, February 7, 2015

All week, my friend Ben Bowden, Covington County’s probate judge, was mum.

It was pretty obvious that U.S. District Court Judge Ginny Granade’s stay on her ruling that Alabama’s ban on same-sex marriage is unconstitutional would expire, and the state’s probate judges would be expected to begin issuing licenses to non-traditional couples next week.

“I’ll let you know Friday,” was his only comment, on the record or off.

Even as sympathizers were going online to be ordained by the Universal Life Church for a mere $13.99, other probate judges were preemptively announcing their plans to stop officiating at courthouse weddings. Though it is a long tradition that probate judges conduct marriage ceremonies, the law doesn’t require them to do so. Making a flat policy of not officiating saves those judges from discrimination suits if they refused same-sex couples.

I happen to know that conducting marriage ceremonies has heretofore been Judge Bowden’s second favorite part of his job. His most favorite is making adoptions official. But I fully expected him to announce on Friday he would stop.

Meanwhile, Alabama’s Chief Justice Roy Moore, who’s already been removed from the bench once for defying a federal court order, put every probate judge in the state in a bad place.

“I’m telling you in my opinion right now, in the opinion of anybody that’s got any knowledge of the Constitution, there’s nothing in the Constitution that allows the United States Supreme Court or federal district courts to redefine marriage,” Moore said. Never mind, he’s said similar things before about federal powers, and been proved wrong.

Moore also stated loudly and publicly that probate judges should defy the U.S. District Judge’s ruling and refuse to issue same-sex licenses.

So how’s a probate judge to win, especially in a conservative place like Covington County? Refusing to issue licenses to same-sex couples could easily get them sued, and issuing them hurts them in the eyes of conservative voters. Before Roy Moore got back in the bully pulpit and resumed his demagoguery, the probate judges could have said, “I’m following the law.” When the chief justice said, “don’t,” each of them had to feel uncomfortable politically, regardless of their personal beliefs.

Judge Bowden announced his decision Friday afternoon, as promised. He’s not going to stop selling licenses, like Pike County’s probate judge. He’s not going to stop doing weddings, like many of his peers. But he’s no longer going to issue licenses to those outside the county, and he’s not going to issue same-sex licenses.

The decision has nothing to do with his personal convictions on the issue, he said, but rather on his study and interpretation of the law. He acknowledged that there is a good chance he’ll be sued.

Judge Granade is not a liberal activist, but rather a Bush appointee who was supported by our very conservative U.S. senators. I expect it is only a matter of time before a higher court rules that all Alabama probate judges have to issue the controversial licenses.

But I am sympathetic to the political position Judge Bowden and other probate judges find themselves in. Given the circumstances, his politics are astute.