When the Supreme Court issued its landmark ruling in 2015 legalizing same-sex marriage, a handful of conservative government employees nevertheless refused to issue marriage licenses to gay couples. In an attempt to circumvent this problem, Alabama Republicans are considering abolishing marriage licenses altogether, regardless of the genders involved, to ensure that no state officials are forced to sign off on the marriage of a gay couple.
State Sen. Greg Albritton, the bill's sponsor in the Senate, stressed in an op-ed that his legislation "does not eliminate marriage as an institution recognized by the State of Alabama." It simply changes the process by which marriages are made official.
"Senate Bill 13 opens every county to marriage; no public official can deny a properly-completed form," Albritton wrote. "My proposal continues to restrict marriage to two people who are of legal age, mentally competent, and unrelated, just like now. Most importantly, SB13 allows all persons of faith to practice their religious ceremonies of marriage according to their faith and doctrine and removes the government from a religious sacrament."
Albritton's legislation is in large part the result of Alabama's convoluted marriage laws, which predated the Supreme Court decision. In order for a marriage in Alabama to be official, it must first be "solemnized" by somebody qualified to do so; religious leaders, courts and probate judges are among the people authorized to solemnize a marriage. But an Alabama marriage can't be solemnized before a marriage license has been issued — and crucially, although the law states that probate judges "may" issue marriage licenses, there is no statute that requires them to do so.
After the Supreme Court legalized marriage equality nationwide, a handful of judges in Alabama who personally disapprove of same-sex marriage stopped issuing marriage licenses altogether in order to avoid playing a role in the union of gay couples. Pike County probate judge Wes Allen is one of them; in an interview with NPR, he said that his office hasn't issued a single marriage license since the SCOTUS ruling over three years ago.
"I believe marriage is between a man and a woman and firmly believe that biblical world view," Allen told NPR. "And I couldn't put my signature on a marriage license that I knew not to be marriage."
Allen and the other probate judges argue that, because they're also refusing to give marriage licenses to straight couples, they're not technically running afoul of the SCOTUS ruling. This puts them in a different category than Kim Davis, for instance, the Kentucky clerk who was jailed for giving marriage licenses only to straight couples.
"Alabama's been one of the toughest states when it comes to access to marriage equality because of our marriage code and because the way it's written for judges to choose to issue licenses or not," Eva Kendrick, director for the Human Rights Campaign in Alabama, told NPR.
In an attempt to sidestep all of this controversy, Republican lawmakers in Alabama have proposed legislation that would take the state out of the marriage business altogether — sort of.
Under the proposed law, which has already passed the state Senate and is currently under consideration in the state House, marriages in Alabama would no longer require either a solemnization or a license in order to be official. Instead, prospective newlyweds would merely need to submit documents to a probate judge asserting that they're legally eligible to be married. The judge would then forward that documentation to the county's Office of Vital Statistics, and the marriage would become officially certified.
The key difference is that under the new law, judges would no longer be required to affix their personal signature to a document in order to certify a marriage. All they'd have to do is forward a series of documents to another state official, and although that may sound like an insignificant distinction, it isn't: Washington County Probate Judge Nick Williams told AL.com that, although he has refused to issue any marriage licenses at all since the Supreme Court decision, he would resume doing so if he didn't have to sign any documents certifying same-sex marriages.
Intriguingly, the bill drew bipartisan support in the state Senate, with no Democrats voting against it. Although the legislation was crafted largely to appease conservatives, one of the ways that it accomplishes this is by completely removing religious institutions from the legal process of marriage. Current law says that "any licensed minister of the gospel in regular communion with the Christian church" is authorized to solemnize a marriage — but Albritton's legislation eliminates the the solemnization requirement entirely. Couples could still hold private religious ceremonies celebrating their marriages, but religious leaders would have absolutely no role in making marriages official.
In other words, the bill creates just a little bit more distance between church and state — a longtime progressive priority.
Still, not all Democrats are happy with the legislation. Democratic Rep. Merika Coleman expressed concern that it could create problems for Alabama couples applying for federal benefits, since the new legislation would abolish marriage licenses. "Specifically on Social Security and with military benefits, [federal agencies] ask for a marriage license," Coleman told NPR. "They do not ask for a marriage contract."
The bill is currently pending in the state House. It has not yet been scheduled for a vote.