Gay Marriage

Alabama Bill to End State Marriage Licensing Back for New Vote

Have whatever ceremony you want (or not) and just file your paperwork.

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mustaches
Credit: Skypixel | Dreamstime.com

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 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.

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  1. Good for Alabama. Too bad they now have to actually legislate in order to recognize what has existed outside legislation for 1000+ years – common law marriage. No doubt they will attempt to screw the legislation up for political reasons just like they’ve always done (see Jim Crow)

    But hell – for people in those 40 states which outlawed common law marriage and made personal relationships subject to the approval of the legislature/polity – I hope you enjoy the bedroom surveillance you assholes.

    1. Too bad they now have to actually legislate in order to recognize what has existed outside legislation for 1000+ years – common law marriage.

      No, they don’t. Many states do not recognize common law marriage, and some of those that do require you to make a filing nonetheless.

      1. A nice summary of common law marriage states

        http://family.findlaw.com/marr…..tates.html

        I count 12. Note Texas, which I am familiar with:

        If a man and woman in Texas sign a form provided by the county clerk, agree to be married, cohabitate, and represent to others that they are married, a common law marriage exists.

        1. Ok, for my own edification, the distinction here between common law and “conventional” marriages is that no state official has to solemnize/approve of the former?

          I’m assuming though that there are still restrictions on who will be recognized to be married (e.g. no brother/sister pairings), even though that may not come up unless/until it goes before a court.

          1. Common law marriage was a principle of the law that if a couple declared themselves to be married, and lived together for a period of time (which varied among different jurisdictions), the state would recognize that they were married, despite any missing formalities. For example license, ceremony, witnesses etc.

            1. In effect, the witnessing requirement was removed from having to occur at a particular time (the time of marriage) or by a particular officer, and dispersed into the world generally, i.e., “Anyone can see this is a married couple.” It might be abolished entirely if the assertion of marriage is not rebutted by anyone.

              I don’t think marriage registration with gov’t is any more awful than real property deed registr’n, but I also recognize that private registr’n is feasible & will tend to arise spontaneously in the absence of gov’t registr’n.

              What I object to is gov’t licensing of marriage, i.e. a need of permission. I also find it odd that in this case people have come to think of the license, i.e. the permission, as standing in for the fact itself. We don’t confuse a dog license with a dog or a fishing license with a fish.

    2. Maybe I’m missing something here, but isn’t “common law marriage” by definition established in the common law? Why does it need to be legislated?

      1. Never mind, I RTFA.

  2. AWESOME!

    the forms indicated only two parties, so this would not be polyamorous-friendly

    Baby steps, I guess.

  3. THAT’S NOT WHAT REAL MUSTACHES OR HEARTS ACTUALLY LOOK LIKE.

  4. We need the “It’s none of your business” amendment.

    1. I don’t mean this to be taken as an insult, but the fewer words you say the more I agree with you.

  5. If this actually happens, it will be the first instance of even remotely getting the government *out* of the marriage business that I’ve seen in…I have no idea, but it’s a long fucking time. That’ll be impressive.

    1. Sometimes assholes’ attempts to further their assholish goals produce anti-assholish results.

      1. “Keep firing, assholes!”

      2. Like Milton Friedman said, ” The important thing is to establish a political climate of opinion which will make it politically profitable for the wrong people to do the right thing. “

      3. The funny part is that with Libertarians supporting this thing that we’ve always supported (and being against anti discrimination laws etc.), it’ll blur the distinction between Libertarians and Social Conservatives. Pot prohibition ending will probably even add to that. With no one arguing about Gay marriage or pot any more, whats to distinguish libertarians? I’ve already heard myself described as “Like a Republican, but for gay marriage and pot”.

        Basically when we don’t participate in the coming pendulum swing against so-cons, we’ll be labeled so-cons too.

        ‘Twill be interesting times.

    2. According to Tonio, supporting this means you arent serious because there is no movement to gets these laws oassed.

    3. Not really. It’s a shell-game. Instead of paperwork before *and* after the ceremony, we just have paperwork *after* the ceremony. And the same restrictions for who can get married are in place, it’s just shifted when they’ll be checked.

      So… no. This isn’t getting the state out of marriage at all. It’s just moving the paperwork around because some of the probate judges in Alabama, encouraged by Chief Justice Moore of the Alabama Supreme Court, threw a fit.

  6. 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.

    THEN WHAT’S THE POINT? No one is going to couple up if the relationship is not going to be stamped APPROVED or NOT APPROVED by a bureaucrat. The human race will die out.

    1. Not as long as we all continue to impregnate your mom, FoE. She’s Eve.

        1. Have you ever read Milton, FoE?

          1. I’ve heard he was boring and long-winded, he doesn’t translate very well to our generation, and his jokes were terrible. But that still doesn’t relieve you of your responsibilty for this material. I’m not joking – this is my job!

            1. I think Epi is talking about John Milton, not Milton Berle.

            2. +1 piece of shit novel

          2. Fist is no true Scotsman.

    2. Just like no one would ever buy homes, have kids, donate to charity, or get old and die if the state didn’t subsidize it.

    3. turn in their paperwork (including signatures by two witnesses) to the county

      Why a requirement for two witnesses? Just notarize the signatures (or sign in the presence of the accepting county clerk).

      1. Who’s side are you on?

  7. Good for Alabama; the state should absolutely not be sodomizing marriages.

    /Emily Latilla

  8. “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.”

    Ooh, and the claws come out!

    I suppose the alliance between libertarians and the gay-rights crowd is officially over.

    1. We’ve served are purpose, now they’re done with us. Thats what progressives do.

    2. We SoCons have been wondering when you would finally join us on the Wrong Side of History.

      Welcome!

      There’s orange juice and mineral water in the minibar, tractor pulls every Saturday, prayer meetings every Sunday and Wednesday, and be sure to check out our collection of Veggie Tales CDs.

      1. The only thing I don’t hate in that sentence is tractor pulls.

        1. How can you hate orange juice?

          1. You don’t really expect us to drink straight mixer?

            1. Yeah no shit. I can’t drink orange juice without vodka. Pretty shitty wrong side of history you are hosting.

  9. I have it on good authority that Alabama is a bigoted place full of bigoted bigots, so this is obviously a hoax.

    1. You’re thinking of the Northern Mariana Islands.

  10. It doesnt go far enough, but perfect/good blah blahblah.

  11. 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.

    Of course the law doesn’t require judges to do what Todd wants them to do – yet. But what’s the use of being a lawmaker if you can’t make laws forcing people to do what you tell them to do?

    1. Judges are state employees, unlike cake bakers, so I’d be less concerned with the legislature adding or deleting the duties of their job.

      1. Oh, now I see who’s side you’re on.

        1. Whose side am I on? I don’t think the requirements for a marriage license should be any more than those of a dog license (standard libertarian disclaimer about dog licenses) or something else. Allowing state employees, which includes judges, to pick and choose what they want to do will kick the can down the road (fine if another employee handles the paperwork or some other arrangement the employees/office work out). Some clerk somewhere will cite their personal beliefs for refusing to accept the paperwork even if it only means taking it and filing it.

          1. The law doesn’t explicitly require them to do this, which is what was stated, so you don’t actually care about the person’s agency as much as whatever other motivation you may have. Further, you insist upon this forfeiture of agency without any regard for the actual written social contract or mandate from the masses in favor of some unwritten obligation to your abstract notion of what a state employee should do. You then explain that there is a vague notion of acceptable can kicking but that the can kicking can rise to an unacceptable level. A level that will then, presumably, require state involvement to enforce the unwritten law.

            It’s pretty clear, you don’t want freedom, you want licenses.

            1. Wow. That’s quite the leap you took there.

    2. It’s all about force. She has power, she must use it to hammer her enemies with

  12. I think it’s referred to as cutting off your nose to spite your own face.

  13. Reducing government involvement in marriage is exactly like private, whites-only parks. I don’t know how either, but that’s what I’m told.

    1. Alabama and Republicans what more do you need to know? Duh!

    2. If you don’t have a sign that says “Jews Welcome Too!” then how do you know if Jews are welcome?

  14. OT: She MAY see disiplanary action? Oh right, public employee.

    http://nbc4i.com/2016/03/16/da…..to-father/

  15. “Any marriage or family-related legal issues would subsequently be handled by courts. If the marriage wasn’t legal, it would be addressed then.”

    There is absolutely nothing that could possibly go wrong with this.

    1. A marriage ceremony by a state employee can be challenged as to validity, also.

      1. I’m sure they could, but there would be some sort of objective framework to deal with it. In this situation, if a couple runs afoul of local LEOs over a cohabitation ordinance because they don’t consider a marriage solemnized by the Church of STEVE SMITH valid, then we’re in for a big kerfluffle over who gets to say what’s valid.

        I’m not saying this is all necessarily a bad thing, it just doesn’t seem like it’s been well though out, yet.

        1. To be legally recognized, you need legally recognized paperwork. That’s true now, and will be true after this bill passes. If you get married by the Church of Steve Smith now, and don’t get a license, its not legally recognized. If you get married by the Church of Steve Smith after this bill passes, and don’t file the form, it won’t be legally recognized.

          Analogize this to filing your deed after you buy a house. You don’t have ask the state’s permission or get a license to buy a house, and you can “buy” it without filing with filing with the title registry, but if you don’t file, don’t cry if you run into legal problems later.

          1. You don’t have ask the state’s permission or get a license to buy a house, and you can “buy” it without filing with filing with the title registry, but if you don’t file, don’t cry if you run into legal problems later

            While I’m sure this still takes place to some limited extent, won’t you run afoul of some law or another by failing to file and/or notify various and sundry tax agencies?

            1. there’s usually a separate form to notify the county for property tax purposes. Its not a requirement, as far as I know, that you register your deed. Its just really stupid not to, but its a valid sale unless and until somebody files their own deed on “your” property, and then you’ve got problems under a “first to file” approach.

              1. This is very State law specific. You are generally not breaking the law by failing to record, but depending on the State you may, or may not have title to the property if you fail to record.

              2. *flashes back violently to property law class*

                IIRC, we read cases for 3 months which could have avoided litigation if the idiot had filed a deed.

          2. Okay, I see what you mean.

          3. Analogize this to filing your deed after you buy a house. You don’t have ask the state’s permission or get a license to buy a house, and you can “buy” it without filing with filing with the title registry, but if you don’t file, don’t cry if you run into legal problems later.

            I was thinking about this issue earlier today. As a real estate attorney it drives me crazy when people (usually small investors) ignore formalities in property transfers. As a libertarian I want the State out of everything it can possible be removed from. The question is what would actually happen if we eliminated the recorder’s offices.

            I think this is an area where private insurers and possibly some sort of block chain application could handle things with very little disruption. Title insurance would possibly become a bit more expensive as some title questions might become harder to find or resolve, absent a uniform central repository for titles and encumbrances, but I don’t think it would be a big cost increase.

            1. The state has a role to protect people from force and fraud, and for many individuals and businesses, the acquisition of real estate may be the biggest single financial transaction they ever enter into. While I don’t see the need to have the state necessarily be the central repository, I think we could still achieve Libertopia if the state maintained the list of titles and records. Let’s fight the entitlement programs, the crony capitalism, and the wars of aggression and worry about title registry later.

              1. Oh absolutely, I did not mean to suggest this should be any sort of priority. I was just thinking through the issue in terms of what would the pure libertopia look like.

                1. Pure Libertopia looks like Somalia! Roadz! Childruns!

            2. Title insurance would possibly become a bit more expensive as some title questions might become harder to find or resolve, absent a uniform central repository for titles and encumbrances, but I don’t think it would be a big cost increase.

              I could see it settling out in a similar way to FICO. 2 or 3 recording agencies that keep records on each house and generate a “cleanliness of title” score.

    2. So you prefer administrative law?

  16. Alabama Bill to End State Marriage Licensing Back for New Vote
    Have whatever ceremony you want (or not) and just file your paperwork.

    Where’s the recognition in that?

  17. This doesn’t concern me much, but I’m not sure what it accomplishes either.

    The state is already dealing with a significant number of recalcitrant government employees who so object to gay marriage they refuse to have anything to do with any marriages. Do they really think that by shifting the ball from one group of government employees to another, that the new group isn’t going to have any objectins? Or object any less to “recording marriages” as opposed to “granting licenses”?

    Who knows. Maybe I’m just cynical?. Maybe they actually went to whoever their shifting the hot potato to, and made sure that the new group wasn’t going to have any problems.

    But I kind of doubt it.
    ________
    ?To be (un)fair, this *is* Alabama. They don’t exactly have a good history with equal protection under the law for *any* minorities.

    1. They don’t exactly have a good history with equal protection under the law for *any* minorities.

      As opposed to all those right-thinking states, which have such stellar track records.

    2. See, this is a pet peeve of mine. Jim Crow ended 60 yrs ago. The South is not the same place, nor inhabited by the same people, as 60 yrs ago.
      I often encounter this attitude with people from NYC, who have never left the city, and who keep these stereotypes of a racist south alive. You know where I have encountered the most honest to god racism? The Midwest.

  18. I have it on good authority* that this is totally Jim Crow, like, all over again. Somehow. Aside from the general hand-wringing and harrumphing, people have been wondering about federal benefits. It has always been my understanding that, prior to DOMA, the fedgov didn’t really strictly define what constituted “marriage”, and considered it a state issue. With regards to the benefits that it doled out, it simply accepted whatever passed muster at the individual state level. So, if the age of consent in, say, Mississippi is 21 without parental consent (weird, huh?), 21-year-old married Mississippians they were just as married as an 18-year-old married couple in Alabama in the eyes of the feds, even though the criteria in each state were different. In short, whatever a state says is marriage (or its functional equivalent) stands as long as it is equally applied.

    (* my Facebook feed)

  19. JUST BECAUSE THE FORMS ONLY LIST TWO PARTIES DOES NOT MEAN 2ND WIVES ARE LOCKED OUT OF FINALLY GETTING MARRIAGE EQUALITY FROM THIS!!

    Remember, a man marrying his 2nd wife is STILL a 1 man + 1 woman marriage. She’s not marrying the first wife.

    I found another story that was more in depth and mentioned that the state will not record marriages if one party is already married. Well THAT won’t hold up in court because this bill ends the license/permission requirement and allows the right to contract. If the state won’t record my 2nd wife AFTER a legal contract was finalized between us, then the state will lose in court.

    This bill could be called the “no permission needed” bill, or the “right to contract” bill, or the “everyone is pre-licensed” bill. For the state to allow us to handle our marriages with no license beforehand, and to make the state only a recorder, is to allow me to marry my second wife, and refusal to record would constitute refusing a marriage that had already taken place, or a type of attempt to undo a marriage that had already been legally contracted due to no license being needed.



    Marriages between adults, where a license was granted, or was not needed, CANNOT be undone AND WE ALL LEARNED THAT WITH THE GAY MARRIAGE FIASCO.

    facebook.com/multiwifefamilies

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