The Supreme Court may have ruled that same-sex marriage is a constitutional right, but that doesn’t mean conservative opponents are ready to concede defeat just yet. Several states have said they will not marry gay couples until they are forced to do so.
“The Supreme Court’s decision is not effective immediately in Mississippi,” Mississippi Attorney General Jim Hood said in a statement. “It will become effective in Mississippi, and circuit clerks will be required to issue same-sex marriage licenses, when the 5th Circuit lifts the stay of Judge Reeves’ order.”
Louisiana is using the same excuse: Attorney General Buddy Caldwell’s office said it "has found nothing in today's decision that makes the Court's order effective immediately,” and will wait for a court mandate. Mike Reed, a spokesman for Governor Bobby Jindal, echoed that position: "Current state law is still in effect until the courts order us otherwise."
Technically, they are correct. There is some leeway for states to delay issuing marriage licenses for same-sex couples for a few more days. The Supreme Court decision is effective immediately in the states directly involved in the case, which include Kentucky, Michigan, Ohio, and Tennessee. But Mississippi has had its own court challenges, which will delay when the state is required to comply with the Supreme Court's ruling. A federal judge overturned Mississippi’s same-sex marriage ban last year, but there was a stay on the decision pending an appeal. Mississippi intends to wait for the appeals court to lift its stay.
“In Mississippi, it might take a day or two for the federal courts to sort things out, but I don’t expect any significant delay,” Margo Schlanger, a legal expert at the University of Michigan, told me.
In Alabama, meanwhile, at least two probate judges are using a supposed loophole in state law to claim they do not have to marry same-sex couples. Fred Hamic and Wes Allen in Geneva and Pike counties, respectively, say their offices won’t issue any marriage licenses at all, citing state code that their offices “may” issue marriage licenses, not “shall.”
“In Alabama, where the State Supreme Court has actually forbidden probate judges to enter same sex marriages, there might be some kind of confrontation between the state courts and the federal courts—which would create more drama as it gets resolved," Schlanger said. "But even there, the federal court will win; I expect all the counties will be required by a federal district court order to start licensing same-sex marriages pretty quickly.”
Alabama Attorney General Luther Strange has already said, “I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land.”
His Texas counterpart has take a different position: Attorney General Ken Paxton declared that “no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman.” While Dallas has begun issuing marriage licenses, a Denton County clerk has taken Paxton at his word and refused to issue licenses.