Alabama Bill to End State Marriage Licensing Back for New Vote

Alabama is poised (again) to possibly end the state’s role in solemnizing marriages, though it will still be acknowledging them under the law.

To recap: Alabama’s marriage solemnization laws are unusual in that the wording of doesn’t actually require county probate judges to perform all legally recognized marriage ceremonies. The law says that they “may,” not that they “shall.” Some judges who do not agree with the legalization of same-sex marriage recognition have decided that they will opt out. They “shall not” perform wedding ceremonies and some counties stopped issuing wedding licenses entirely. This became a bit of a tricky, untenable situation.

A solution proposed last summer by a Republican state senator was to eliminate the government’s role in handing out licenses entirely. Instead of turning to a judge to make it official, couples (both straight and gay) could handle it however they like and then turn in their paperwork (including signatures by two witnesses) to the county. Any marriage or family-related legal issues would subsequently be handled by courts. If the marriage wasn’t legal, it would be addressed then. The only thing officials would be checking in advance would be the ages of the parties involved (the forms indicated only two parties, so this would not be polyamorous-friendly).

When I wrote about the proposal last summer I checked through the legislation to determine whether it was a sneaky way for the government to try to avoid having to give same-sex couples the same rights or privileges as heterosexual couples. I found nothing to indicate any ability to discriminate under the law. Instead, it appears to be a compromise to accommodate objectors to gay marriage that ends up with a nicely libertarian solution. Same-sex couples will still have the same legal recognition as heterosexual couples in Alabama. This state and county governments just aren’t going to play a role in the formation of the marriages themselves.

The bill got majority vote in both houses of Alabama’s legislature last September, but because it was introduced in a special session it needed a two-thirds vote to pass. It didn’t reach that threshold in the House and died. It has been resurrected and passed the State Senate Tuesday easily, 23-3. It now heads to the House again.

The objection the state’s openly gay legislator, Patricia Todd, raised was that the bill was unnecessary and that the judges need to “do their jobs.” This is what happens when you confuse a chant with an actual argument. The problem is that the jobs do not require the judges to do what Todd wants them to do. This compromise avoids the kind of nasty political fight that would ensue if the state tried to change the job description to require the judges participate in the marriage process. It’s a compromise that gets Todd everything every gay couple in Alabama actually needs. That it even slightly reduces the government’s role in policing private relationships is a wonderful bonus.