Jan 24, 11:36 AM EST

Alabama seeks to stay order overturning gay marriage ban


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MONTGOMERY, Ala. (AP) -- The Alabama attorney general is asking a federal judge to stay a ruling that overturned Alabama's ban on gay marriage, as advocates cheer what once seemed an improbable victory in the deeply conservative state.

Attorney General Luther Strange's office asked a federal judge on Friday to put the ruling on hold since the U.S. Supreme Court plans to take up the issue of gay marriage this term, "resolving the issues on a nation-wide basis."

U.S. District Callie V.S. Granade on Friday said Alabama's ban was unconstitutional, ruling in favor of two Mobile women who sued to challenge Alabama's refusal to recognize their 2008 marriage performed in California. The ruling is the latest in a string of wins in the South for advocates of gay marriage rights after judges struck down bans in the Carolinas, Florida, Mississippi and Virginia. The U.S. Supreme Court announced this month that it will take up the issue of whether gay couples have a fundamental right to marry and if states can ban such unions.

Alabama plaintiffs Cari Searcy and Kimberly McKeand have been a couple for more than 15 years and have a son together who was conceived with the help of a sperm donor. They filed a federal lawsuit after courts refused to let Searcy be recognized as the adoptive parent of the boy because they were not spouses under Alabama law.

"We just want our son to have the same protections that every child in Alabama enjoys and now he can!" the couple said in a statement issued Saturday morning.

David Kennedy, a lawyer for the couple said, "Justice and equality are guaranteed to everyone and we are proud to know that is true in Alabama tonight."

The judge's decision Friday reverberated through the Deep South state where 81 percent of state voters in 2006 approved inserting a ban on gay marriage into the Alabama Constitution.

"It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Act," Alabama House Speaker Mike Hubbard said.

A spokeswoman for Alabama Gov. Robert Bentley said the governor was disappointed in the decision and said the state is reviewing the decision to decide the next steps.

"The people of Alabama voted in a constitutional amendment to define marriage between a man and a woman," Bentley Communications Director Jennifer Ardis said.

Advocates of gay marriage cheered what they called a historic victory in a state traditionally hostile to gay activism.

Ben Cooper, chairman of Equality Alabama, said, "We expect and hope that the attorney general will uphold the decision to recognize same-sex marriage. These laws are irrational and finally have come to the forefront of this debate thanks to brave women like Cari Searcy and Kimberly McKeand."

Alabama asked the judge to stay the order until the U.S. Supreme Court decides the issue on a national basis.

In seeking a stay, state lawyers argued there would be widespread confusion if "marriages are recognized on an interim basis."

"A stay will serve the public interest by avoiding the confusion and inconsistency that will result from an on-again, off-again enforcement of marriage laws," state lawyers wrote.

Granade enjoined Strange from enforcing the state's same-sex marriage bans, raising the question of what happens next. Lawyers for Searcy and McKeand said the couple plan to refile their adoption paperwork next week and believe same-sex couples can begin to wed in the state as early as Monday.

David Dinielli, deputy legal director for the Southern Poverty Law Center LGBT Rights Project, said in his personal view, couples should be able to seek marriage licenses when the doors of the county clerks' offices open Monday. However, he said it will likely take much more litigation for that to happen.

Alabama has two laws banning gay marriage, a state statute and a constitutional amendment called the "Alabama Sanctity of Marriage Amendment" that was approved by voters in 2006. Granade said both were in violation of the equal-protection and due-process clauses of the U.S. Constitution.

Granade rejected arguments from Alabama that the state had an interest in promoting marriage between men and women for the benefit of children. She said the state does not ban marriage for couples who are infertile, elderly, or want to remain childless, and she said children of gay couples are equally deserving of protection under the law.

"The attorney general does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children," Granade wrote.

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