Alabama Chief Justice Roy Moore late Sunday ordered all probate judges and employees in Alabama to follow existing state law and not issue marriage licenses to same-sex couples or recognize same-sex marriages.
Couples across the state are preparing to wed Monday morning, when a stay on same-sex marriages is set to be lifted.
On Jan. 23, U.S. District Judge Callie V.S. "Ginny" Granade ruled the state's constitutional ban on same-sex marriage and recognition of same-sex marriages entered in other states was unconstitutional. She issued a stay, putting her ruling on hold until Feb. 9.
Since then, Moore has asserted several times probate judges who issued marriage licenses to same-sex couples would be doing so in defiance of state law.
In his order issued Sunday night, Moore wrote that if any probate judge defies the order, Governor Robert Bentley would have the responsibility of ensuring that state law is "faithfully executed."
He has also said that the judges are not bound by the orders issued in that case, Searcy v. Strange. Instead, he said, probate judges fall under the direct supervision and authority of the chief justice.
He contends that the district court that issued a ruling striking down the state's same-sex marriage ban has not issued an order directed to probate judges, who are not bound by the opinions of that court.
A spokeswoman for Bentley said he did not know about Moore's letter and did not have an immediate comment Sunday evening.
Jefferson County Probate Judge Alan King said: "My inclination at this point is to follow Judge Granade's order. But a final decision will be made before 8 a.m."
"I only found out Justice Moore had issued his order a little before 10 p.m. At first glance, my legal analysis is do we in Jefferson County follow a valid federal court order or do we follow an order by one member, albeit the chief justice, of the Alabama Supreme Court?"
An attorney for plaintiffs Cari Searcy and Kim McKeand, the couple at the center of the ruling ending the ban, called Moore's order a "George Wallace move," adding that he cannot think of a more direct act of defiance off the federal government since the former governor's famous stand in the schoolhouse door.
"I think it's absolutely stunning that our state's highest jurists would just advocate for ignoring a federal court order. Judge Granade's order is law of the land. It's not up for debate," attorney David Kennedy said. "It's alarming."
Beyond the confrontation with the federal judiciary, Kennedy said he does not believe the chief justice of the state Supreme Court has the authority under state law to issue such orders to probate court judges. "That's not how our judicial system works," he said.
Kennedy said gay couples turned away by probate judges Monday would have to seek relief in the federal district where the probate judge is located. He said he would take appropriate action if the probate judge in Mobile County, Don Davis, follows Moore's order and refuses to accept Searcy's second-parent adoption petition - the issue that prompted the lawsuit in the first place.
"Who knows what tomorrow or next day will bring," he said. "We will be there tomorrow morning filing our ladies' adoption petition."
Susan Watson, executive director of the American Civil Liberties Union, told The Associated Press she doubted probate judges would defy a federal judge on Moore's behalf. She accused the chief justice of grandstanding.
Randall Marshall, attorney for ACLU of Alabama, called the order "a last minute gasp."
"I am not aware of anything that gives him the authority to tell probate judges what to do ... If he had that authority he would have claimed it much earlier than now," Marshall said.
"This is a pathetic, last-ditch attempt at judicial fiat by an Alabama Supreme Court justice--a man who should respect the rule of law rather than advance his personal beliefs," said Human Rights Campaign Legal Director Sarah Warbelow.
"Absent further action by the U.S. Supreme Court, the federal ruling striking down Alabama's marriage ban ought to be fully enforced, and couples that have been waiting decades to access equal marriage under the law should not have to wait a single day longer. All probate judges should issue licenses tomorrow morning, and Chief Justice Roy Moore ought to be sanctioned."
Richard Cohen, president of the Southern Poverty Law Center, said:
"The Court of Appeals and, so far, the Supreme Court of the United States has seen fit not to continue the stay. But, instead of respecting these rulings, the Chief Justice has decided to create a crisis in our state but telling the probate judges to ignore the ruling of the district court and threatening them with unspecified gubernatorial action. It's outrageous. We urge the probate judges to follow the Constitution of the United States and issue marriage licenses when their offices open in the morning."
Probate judges across the state have reacted differently to the ruling - some intend to cease the issuance of marriage licenses altogether, others to refuse licenses to same-sex couples and others to issue license to any couple.
That creates "confusion and disarray in the administration of the law," Moore wrote, and the new marriage license forms issued by the Alabama Department of Public Health have created further inconsistency.
Other cases pending in the middle and northern districts could result in conflicting orders and cause even more confusion, he says.
Moore cites his power as Administrative Head of the Alabama Judicial System, which allows him to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice" in the state.
The document was disseminated by Rich Hobson, the state's administrative director of courts, to probate judges and their employees.
Same-sex marriages are inconsistent with Article 1, Section 36.03 of the Alabama Constitution, Moore says in the order. The "Sanctity of Marriage Amendment" defines marriage as a "sacred covenant" between a man and a woman and notes that the state will not recognize as valid any marriage between parties of the same sex.
On Feb. 3, Moore wrote an advisory letter and memorandum to the state's probate judges saying that they are not required to issue marriage licenses to same-sex couples. In that letter, he asserted that state courts are not bound by federal district courts or federal appeals courts on questions of federal constitutional law.
Read the letter from Chief Justice Moore to Gov. Robert Bentley
In a 27-page memorandum to probate judges, Moore wrote that marriage licenses for same-sex couples are illegal under Alabama law.
Read Chief Justice Moore's Feb. 3 memorandum to probate judges
The Southern Poverty Law Center filed a complaint against Moore with the Judicial Inquiry Commission about the letter he wrote to Bentley, saying that it violated a prohibition against judges making public comments about cases.
Moore said he was not making public comments but was instead acting as the top official in the court system and providing guidance to the probate judges.
AL.com's Kent Faulk, Brendan Kirby, Madison Underwood and the Associated Press contributed to this report.