ROBERT SIEGEL, HOST:
Today the U.S. Supreme Court refused to step in and stop gay marriages from taking place in Alabama. That sends the strongest signal to date that the justices are on the verge of legalizing gay marriage nationwide. And in Alabama, some gay marriages went forward despite a dramatic show of defiance by the state's chief justice. Joining us is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi.
SIEGEL: Let's deal first with what the Supreme Court did and then move on to the ground game, as it were, in Alabama.
TOTENBERG: OK. To regroup for a moment, Robert, in January, federal judge Callie Granade, a George W. Bush appointee to the federal bench, struck down Alabama's ban on same-sex marriage as unconstitutional. She ordered probate judges in Alabama to begin issuing marriage licenses, but stayed her order until today to allow the same time for an appeal. Alabama first went to the 11th Circuit Court of Appeals based in Atlanta, and when it failed there, it went to the Supreme Court asking that it put a hold on gay marriages in the state until the justices resolve the underlying gay marriage issue in a set of cases later this term. Today, though, the Supreme Court refused to step in and stop same-sex marriages from taking place in Alabama.
SIEGEL: And you figure that sends a message here.
TOTENBERG: Not only me - the Court's action today came over the objections of justices Antonin Scalia and Clarence Thomas. And they said that the refusal to intervene now would be seen as a signal of how the court ultimately intends to decide the gay marriage issue later this term.
SIEGEL: Now, why? Why would that be?
TOTENBERG: Because, as the two conservative dissenters pointed out, it's fairly common for the Supreme Court to put lower court decisions on hold to preserve the status quo at the request of a state. In fact, the court did that a year ago when lower federal courts began to decide gay marriage cases, first in Utah and then in Virginia. But in October, the justices left all the existing gay marriage decisions in place, releasing the holds and letting same-sex marriages proceed. And the rationale since offered by several justices was that there was no disagreement among the lower courts of appeal and thus no conflict for the Supreme Court to resolve.
In November, though, the Sixth Circuit Court of Appeals upheld the ban on gay marriage in several Midwestern and border states, so there was a conflict among the lower courts - a conflict that the Supreme Court has now agreed to resolve later this term. And therefore, it really wasn't crazy for Alabama to expect that the court might or would grant its request to put marriages on hold pending a Supreme Court decision. Therefore, to circle back to where we started, Robert, it's also not crazy to infer that the decision to let gay marriages proceed in Alabama is a pretty strong indicator of where the court is headed.
SIEGEL: All right. Well, now let's move on to what's actually happening in Alabama and this extraordinary confrontation led by the state's chief justice, Justice Roy Moore. What happened exactly?
TOTENBERG: Well, last night, Chief Justice Moore, knowing that the U.S. Supreme Court was about the rule on the state request for a hold on gay marriages, issued his own decree ordering state probate judges not to issue marriage licenses to same-sex couples. Chief Justice Moore is no neophyte to the modern post-Civil War battle to preserve states' rights, even in the face of federal court orders to the contrary. In 2003 he was unseated as chief justice by a state judicial panel after he defied a federal court order to remove a refrigerator-sized 10 Commandments monument that Moore himself had ordered installed in the rotunda of the Alabama judicial building to, quote, "acknowledge the sovereignty of God."
In 2013 he rose again to be elected chief justice and now is leading a dramatic act of defiance that's likely to resonate in many parts of conservative Alabama. At the same time though, many in the state don't want to return to a time when the state was an outlier at odds with the Supreme Court as it was in 1963 when Governor George Wallace stood in the schoolhouse door seeking to prevent the desegregation of the University of Alabama.
SIEGEL: And we have more from Alabama elsewhere in today's program. NPR legal affairs correspondent Nina Totenberg, thank you.
TOTENBERG: Thank you, Robert. Transcript provided by NPR, Copyright NPR.
