Assuming a pending bill in Alabama makes it all the way into law, we’re about to see an unusual test case in the marriage wars. Rather than arguing over the definition of marriage for the purposes of issuing licenses, the Heart of Dixie is moving to do away with marriage licenses entirely and replace them with contracts.
Right now, if you want to get married you go to the courthouse and the probate judge gives you a marriage license.
Attorney Jake Watson explains, “[SB377] does away with that and requires parties to enter into a contract and file it at the courthouse, as I understand it.”
This alters the fundamental way we’ve approached marriage for a long time.
Watson continues, “It really does away with the traditional sense of a marriage certificate and what we’ve been dealing with in Alabama as far as marriage certificates for more than a hundred years, I believe.”
The bill itself disposes of marriage certificates and replaces them with a contract that you file with the probate judge.
That may sound like little more than a technicality, but the underlying purpose seems clear. In anticipation of a Supreme Court decision which will probably wind up forcing all states to issue marriage licenses to any couple (regardless of the gender of the parties) who wishes one, Alabama would simply shrug and respond by saying that they don’t have any licenses to issue anyway. Elizabeth Price explains the difference.
The purpose? Presumably, by taking the State out of the business of issuing marriage “licenses,” marriage would just become another private contractual undertaking, and any Supreme Court ruling that, under the Due Process or Equal Protection Clauses, States must issue marriage “licenses” to same-sex couples would not bind the State of Alabama, which would no longer be in the marriage license business, as a technical, formal matter.
But this seems a bit silly, since SB 377 says, “Effective July 1, 2015, the only requirement to be married in this state shall be for parties who are otherwise legally authorized to be married to enter into a contract of marriage as provided herein.” It then lists the required form of the contract. But the key question is who is “legally authorized to be married”?
That last question is the big one. If the Supreme Court specifically states that “marriage licenses” must be issued, then Alabama has an out on a technicality. But since they will be substituting “contracts” in place of the licenses, the state gets to define who is eligible to enter into such a contract. And their state constitution currently says that only traditional, opposite gender couples could receive one. Of course, that boils down to what is essentially just an argument over semantics and a new round of challenges and appeals would likely follow.
The first part of Alabama’s move (the removal of licenses) is in keeping with what I’ve always felt was the solution to this thorny issue. As I’ve stated here many times, my unpopular opinion is that the government shouldn’t be claiming the power to demand a license from or charge a tax on two consenting adults who want to get married, so doing away with the licensing process would be a good first step. But that’s really not what’s going on here. The legislature is basically just looking to replace the license with a contract, and one can safely assume that it will be a requirement and have some sort of processing fee associated with it, so nothing really changes.
It’s an interesting approach, but one that will eventually be shot down in the courts if the current legal arc continues at the national level. But it might add years to the process and allow more time for the national debate to play out. We’ll keep an eye on it as it hits the inevitable wall of legal challenges.