If a State Can't Get Out of the Marriage Business, Can It at Least Get Out of the Licensing Business?
Legislation in Alabama aims to do just that.
Alabama, home of infamous religious conservative Chief Justice Roy Moore, is not accepting the Supreme Court's decision to require states to recognize same-sex marriages all that peacefully. Marriage law in Alabama declares that county probate judges "may" issue marriage licenses, not "shall" or "must." As a result, probate judges in several counties have stopped issuing licenses altogether rather than be forced to license gay couples. Bigoted nonsense, but that's how the state set up its marriage system.
Now the state is casting about for solutions, and Republican state Sen. Greg Albritton is pushing forward a proposal to simply make it so that probate judges aren't responsible for handing out marriage licenses at all, nor is anybody in government in Alabama. Rather, he wants to make it so that marriage contracts are handled privately, then turned over to the county as records. The state would not be validating the marriages of the participants. The ceremony itself would be a private matter and the judge "would have no authority or responsibility to make determinations of eligibility of the parties to the contract for marriage, other than age determination."
The full Senate bill can be read here. I looked over it carefully for signs of some sort of trickery for Alabama to decline to recognize same-sex marriages. I didn't see it. It doesn't demand any particular type of private ceremony requiring a minister or religious solemnization. It declares the opposite:
A civil and independent or religious ceremony of marriage, celebration of marriage, solemnization of marriage, or any other officiation, and administration of the vows of marriage may be conducted or engaged in by the parties to the civil contract by an officiant or other presiding party to be selected by the parties to the contract. The state shall have no requirement for any such ceremonial proceeding which, if performed or not performed, will have no legal effect upon the validity of the civil contract.
What SB4 appears to do is set up the very basic terms to declare yourselves married in Alabama and then tell you to turn in a form to the state. Any confusion about the validity of one of these private marriages is pushed over to the courts, and the bill notes that this change in process doesn't affect any other "legal aspects of marriage in the state, including, but not limited to, divorce, spousal support, child custody, child support, or common law marriage."
So what say we? I know there's some libertarian disagreement on the viability of getting the government entirely out of marriage. In the absence of a clear path for doing so, is it worth pursuing a system where citizens tell their government that they're married (if they want to), rather than the other way around?