Marriage

Alabama Lawmakers Still Trying to Get Government Out of Marriage

Why do adults need a judge's approval to be married, anyway?

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Marriage licenses
Everett Collection Inc. / Dreamstime.com

What if you didn't need some judge or government bureaucrat to declare your marriage valid? What if you could just turn in the proper form and have it recorded in your state of residence indicating that you and your significant other are wed and that the state should treat you as such?

Some lawmakers in Alabama have been trying to make this change for the past couple of years, attempting to get the government out of marriage as much as they possibly can. They've failed the last two attempts, but NPR reports that Republican state Representative Paul Beckman is trying again with HB 162. The state Senate version of the bill has already passed.

Beckman's bill would eliminate marriage licenses, and it would eliminate the requirement for marriages to be "solemnized" to be considered legal. Instead, couples (and only couples in this bill) would turn in the appropriate paperwork and file it with the state declaring that they meet the requirements to be married. And that's pretty much it.

The origin of this bill is not due to a sudden embrace of different kinds of marriage among the conservatives in Alabama's legislature. Rather, it's an attempt to try to appease opponents of same-sex marriage recognition. While the Supreme Court may have mandated that states recognize same-sex marriages, the way Alabama's marriage laws are written, judges cannot be forced to solemnize them. It puts the state in a weird conflict—Roy Moore aside, the state acknowledges it must legally recognize the marriages. But judges cannot be forced to solemnize them, and many are refusing.

So what Beckman is proposing here is a way for everybody to win. Conservative judges who don't support same-sex marriages don't have to solemnize them. Gay couples can have whatever weddings they want (or don't want), file the paperwork and have their marriages legally recognized without having to deal with some cranky old judge's attitude.

It's an interesting experiment, but unfortunately there are folks on both sides of the aisle who want to keep the government involved in marriage. A Democratic state representative complained to NPR that the problem that there are some judges who don't want to "adhere to the rule of law," even though the state's law says they don't have to solemnize marriages. The Supreme Court decision only requires that states themselves recognize same-sex marriages. It doesn't create a particular process for doing so.

And then there's the one Republican senator who opposed the change, complaining to NPR that it somehow "cheapens the value of the most sacred relationship in the world" by taking the government out of it. Phil Williams added:

"When you take marriage and you reduce it to a mere contract, it's almost like you're just doing nothing more than recording the deed to your property at the courthouse. You're just taking the contract down there and the probate judge is just the clerk."

But what's the downside, Sen. Williams?

Seriously, though, why on earth is Williams associating the stamp of approval of a probate judge with the sacredness of the ceremony?

Also unreasonably worried are wedding businesses who think people will stop having big weddings if marriage ceremonies are no longer mandatory. That doesn't exactly seem logical. People don't have to have big marriage ceremonies to be legally married as it is, even in Alabama. Trying to keep marriage license rules in place purely to protect wedding businesses would be terrible (not to mention there are all sorts of lawsuits going on over wedding businesses who don't want to be ordered to serve same-sex couples).

Unfortunately, while the state's senate may be willing to experiment in reducing government control over marriage processes, the state's house seems less willing, and it may not make it to a floor vote.

That's a shame. It was state-level experimentation with marriage laws that got us same-sex marriage in the first place. There was no way the Supreme Court would have ruled the way it had if it weren't for the years of state-level evidence that recognizing same-sex marriages did not have any of the negative consequences critics insisted would follow.

If a state took more of a hands-off role in licensing marriages in the first place, maybe we would discover that we don't really need them as gatekeepers, and we as citizens should have the freedom to define our families as we choose, not as the state tells us we must.

Read the bill here.

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  1. This seems like a step in the right direction. Eventually people will start to wonder why they even need to tell the state they are married at all.

    1. But then how will they know their marriage has been approved by a higher power?

      1. I’m sure you can write to Oprah and ask for her blessing.

        1. I’ve heard that Mike Pence and Oprah both talk to God so there’s two people you could check with.

          1. But if God is a woman, or even has a womanly aspect, then Mike Pence can’t speak to Her without Mother present.

            1. Big Mother Is Watching

    2. It’s not even a baby step in that direction. It barely even registers as movement. You still have to submit your application to the clerk for recording and then you get your license. You can achieve the same stated goal simply by getting clergy to say the ceremony–no judge required.

      No, people will not eventually wonder this because they are reminded every time they file their taxes why this is. They are reminded every time someone they know dies who is or is not married. As long as there are spousal benefits, there will be understanding as to why this exists. The larger question is, do the majority of Americans want to get rid of that? (So far, that’s an easy “no.”)

    3. That’s how it is in Texas. You don’t have to let the state even know for a marriage to be legal and if you want to later on, you can get a post dated marriage certificate.

  2. There is no argument for legalized gay marriage that can’t be applied to polygamy or incest. If the government is still going to pick and choose which kind of relationships to acknowledge, they should just get out of the business of marriage entirely.

    1. I don’t think everybody who opposed polygamy or incest is a hateful backwards bigot, though, because I’m not an asshole and I know how cultural norms work. I know many people who don’t think I should be able to marry my boyfriend but treat me wonderfully and would take a bullet for me, and I know a lot of progressives who have all the “right” views and “celebrate” me for being gay but are awful, selfish, terrible human beings.

      1. What if I told you that you should stop looking at people as assholes v. nice people, and instead judge individual actions?

        1. Or accept the fact that assholes have the ability to do something nice once in a while.

        2. First read through I thought you wrote “What if I told you that you should stop looking at people’s assholes.” This, of course, would be hate speech.

          1. I would never say that.

          2. It would also require that the “Free the asshole” movement get some traction…

    2. Polygamy at least still raises the question of who is next-of-kin and has power of attorney and inheritance rights. The reason government has to be involved in marriage is because of these legal questions. (I’m not saying the questions couldn’t be worked out, I’m just pointing out that a big part of the gay marriage issue is the legal recognition of one’s status in regards to another.)

      1. Okay but what about two-person incest? What about brothers marrying each other?

        1. If they’re above the age of consent, who cares?

          Once the government gets its beak into marriage beyond what traditionally is a man and a woman, then its all a green light.

          1. Exactly. The only possible reason for incest bans is possible genetic defects of offspring. Now that biological reproduction has been completely separated from marriage, though, that is no longer an argument. There are also millions of people with genetic diseases likely to pass on to their children. Should we ban them from marrying as well?

            Every time I bring us these points, I get ridiculed. I argue that both in the natural world and in human cultures, polygamy and incest are far more common than homosexuality. It is those same evil “Judeo-Christian values” (I’m being ironic, because I think those values are generally good) that make us think they are icky.

            1. *sarcastic, not ironic

            2. I have no issues with consensual incest. None of my business.

            3. Reproduction has *always* been separate from marriage. Always. Eggs and sperm have never once stopped to check for a marriage license.

              1. Reproduction has *always* been separate from marriage.
                For animals, who don’t know any better.
                But for human society, the bond that marriage brings to the reproductive efforts ensures that the offspring, of which no other species needs as much learning before venturing into the world on its own, has the correct balance of the two gender-roles to be able to keep society in order.
                For humans marriage has always been about reproduction, or more accurately, the raising of well-rounded replacements.
                It is why marriage was encouraged by virtually every society and is made a mockery of when it is extended to homosexuals, who can never reproduce.

            4. Actually, Judeo-Christian scriptures don’t forbid polygamy, except in very limited circumstances. The ban came from the (pagan) Romans.

  3. Unfortunately the government and many government-regulated institutions make important distinctions based on whether or not you are married. Such as who can testify in a court of law. Or how to file your income tax. Or whether you are allowed to be told HIPAA-protected information (‘sorry this hospital can’t tell you your wife/husband has irreversible brain damage’).
    Although I understand the impetus behind this idea, there’s a whole lot of case law and custom that will have to be remade, and I personally wouldn’t like to be a test case.

    1. “How can we hope to maintain the status quo if we undermine the institutions that support it?”

    2. If I interpret the article, you still have to file a form with the state, so that would enable the contracts for all of the above.

      1. Why file a form with the state at all? Why not file it with your lawyer? Then your designated spouse has the rights that you say he or she has. Get a standard marriage contract on Legal Zoom or somesuch, with itemized exceptions, and your spouse can show it to whomever needs to know (hospital/estate trustee/bank etc.)

        1. Because, when the compact breaks down, the only entity that is empowered to use its force to ensure a legal dissolution is the state.
          And the state, before it uses its force, wants to know that the contract was entered into legally.
          I guess you missed the pertinent line :”…declaring that they meet the requirements to be married.”
          The state’s interest in marriage is at the other end but it also needs to know that the starting one conformed to its standards.
          Such pleasantries as you describe fall apart when one side of a dissolving “marriage” says “Fuck you! You can’t make me live up to that piece of paper.”
          And expecting the state to accept the beginning, when they didn’t get to be involved, then, and getting their fee, is delusional.
          How would that work out if the contract wasn’t up to the state’s standards, so that when the force was needed, the state said “Sorry, we weren’t given the chance to make sure it was legit. So you’re on your own”, and you only found out when it was too late?

  4. A Democratic state representative complained to NPR that the problem that there are some judges who don’t want to “adhere to the rule of law,” even though the state’s law says they don’t have to solemnize marriages.

    So adhering to the ‘rule of law’ is now a moral good. We need a ‘rule of law/not rule of law’ oscillation wave detector.

    1. And ICE needs to keep enforcing those immigration laws!

      Just kidding.

  5. “When you take marriage and you reduce it to a mere contract, it’s almost like you’re just doing nothing more than recording the deed to your property at the courthouse. You’re just taking the contract down there and the probate judge is just the clerk.”

    If anyone has ever been through a divorce, you discover just how much like a contract marriage actually is, Mr. Williams.

    1. Marriage for many people is just a mere contract. Forcing government into it cheapens moreso than anything else.

      1. Marriage has always been a contract. The moment the government allowed no-fault divorce it was most certainly a contract. Family law is nothing but a set of mandatory contract terms for every marriage. It was created because before the 20th Century married women were wards of their husbands. A married woman could not until the 20th Century make a valid contract. Only her husband could do that. Family law was created to prevent husbands from leaving their wives destitute. This is why it is so skewed towards women. It is a relic of a bygone age and something that should be eliminated but isn’t because women are such a powerful political force.

  6. Also unreasonably worried are wedding businesses who think people will stop having big weddings if marriage ceremonies are no longer mandatory. That doesn’t exactly seem logical.

    It ain’t logical. I knew two gay men who had a fabulous gay marriage in Barcelona long before Gay Marriage was legal in the states.

    1. How about the fact that a venue can change ‘x’ for a wedding but the same amount of time at the same venue for some other purpose is twice as cheap?

      Hmm…

  7. This seems ideal except for the requirement for it to be a couple, but it will be a while before America is as accepting of multiple partners in a marriage like they accept pansexual furry marriages (something that, as of now, is perfectly legal).

    Basically, and I hate to say this, Alabama is going in and fixing the idiocy that was decided after the gay marriage issue was resolved. It was resolved badly, even while it was perhaps the most likely argument to succeed for that niche issue. (I’m not faulting gay people specifically, one could argue the onus was on legislators to fix it in a non-retarded manner.)

    The proper response, then and now, looks a lot more like what’s being suggested by this nutty Alabama feller.

  8. This would be the correct manner in which to get gay marriage legal. There is no authority in the constitution to regulate marriage, so the SCOTUS had no authority declaring gay marriage “legal”. Marriage is arguably a natural right mentioned in the 9th Amendment.

    Get the government out of the business of “legalizing” marriage. Its a contract and should be treated as such if there is a dispute.

    1. The backward and bigoted would have opposed gay marriage by contract, too. They were motivated by superstition and bigotry, not concern about limitations on government authority or contract rights.

      1. Except that civil unions passed everywhere they came up for a vote. You might be the most profoundly ignorant person I have ever seen post on here.

        1. That bigots have lost some recent elections, particularly in less-backward jurisdictions, does not incline a conclusion that bigots or bigotry are no longer a thing.

          More important, plenty of bigots continue to press for gay-bashing government action (and racism, and misogyny, and xenophobia), along every front they can identify.

          Carry on, clinger.

          1. Not only are you profoundly stupid, you make up for it by being hateful and ignorant. Please stop infecting the internet with your ignorance.

            1. I’m pretty sure this is another parody account. Like OBL, but less joyful.

              1. I think he isn’t. At least the feeling I get from the Volokh posters, which is where he came from, is that he is a known long-term hater. He’s their Buttplug.

                1. But Buttplug is at least funny sometimes.

          2. Reverend?
            You keep using that word.
            I don’t think it means what you think it means.

  9. I see little or no reason to appease bigots.

    I see plenty of reason to identify and disparage bigots.

      1. Bigots vote; they should be entitled to vote.

        Bigots have rights, too. Even half-educated, backwaters-dwelling, authoritarian, superstitious, Confederate-flag-fondling bigots.

        1. I think we see why the rev believes that anyone who disagrees with him is a bigot.

          After all, he is hateful and bigoted toward people who disagree with *him,* so naturally it must go the other way, right?

    1. This is in fact why the progs aren’t interested in any kind of “libertarian” solution to marriage, and haven’t the slightest interest in “getting the government out of marriage.”

      Progs like the Rev. want the government to be very much involved in marriage, even beyond what is minimally necessary for recording marriages.

      They want to be able to purge both the public and private sectors of wrongthinkers – again, as the Rev. admits, simply for the purpose of identifying and disparaging his foes, not for what the progs tell the normies they’re in favor of, which is affording same-sex couples the legal benefits of marriage. What’s the good of doing that if the wrongthinkers are left alone?

    2. So was Obama a bigot when he was elected?

      1. No, silly, he simply had to appease the bigots with soothing words or else he might not have been elected.

        You’re not saying Obama should have lost the election, are you?

        Bigot.

  10. This wouldn’t have been a problem if the gays had accepted civil unions with all the same legal ramifications as marriage.

    Instead the sodomites insisted on redefining a word that had a fixed meaning in common use and culture, so they could use it to club people over the head with in lawsuits after the fact.

    1. “Civil unions” were simply a temporary stopover on the road to SSM, they’re not to be taken seriously in themselves.

      1. Civil Unions were a contract based marriage system and a long ways towards what libertarians had been claiming to want. But, since Libertarians decided gays were more important than anything else, they rejected civil unions.

        1. You’re overlooking a long record of right-wing gay-bashing, John, capped by a recent burst of especially intense bigotry from authoritarian right-wingers who can’t abide the decent treatment of gays.

          Why?

          1. I am not over looking anything. I can’t take into account your fantasies or the voices in your head.

    2. Homosexual activist Marsha Gessen at an Australian conference:
      “Gay marriage is a lie. Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there,” she added.
      “It’s a no-brainer that we should have the right to marry,’ she said. ‘But I also think equally that it’s a no-brainer that the institution of marriage should not exist. ? ‘Marriage equality’ becomes ‘marriage elasticity,’ with the ultimate goal of ‘marriage extinction.’ ”

      Such honesty is rare from the progs.

    3. Except gay marriage supporters weren’t the first to redefine marriage. The no-polygamy folks were, beginning 1600-odd years ago when polygamous marriage was accepted by nearly every culture on the planet

      Did you never wonder why “traditional marriage” statements include the phrase “ONE man and ONE woman” when the number of participants has nothing to do with gay marriage?

  11. The bill doesn’t get the government out of marriage, but it stops calling on state officials to solemnize marriages.

    Thus, under the bill, there would be fewer occasions for progs to try and purge the state judiciary and civil service of wrongthinkers. Couples could simply fill in a form, turn it in, and pay a fee, they wouldn’t be able to be drama queens and demand that some government official do the ceremony.

  12. Alabama getaway
    Alabama getaway
    Only way to please me
    Turn around and leave
    And walk away

  13. What does it mean to “keep the government out of marriage”? The government does three things with regard to marriage. First, it gives out certain benefits and rights based on you being married. Second, it prescribes a set of enforced contract provisions for the dissolution of marriage; this is known as family law. Third, it forces everyone to recognize as married those couples which the government says are married.

    So what does getting the government out of marriage really mean? It means that the government would no longer do those things. It would enforce marriage contracts by whatever terms they were written. They would no longer give benefits to people who claimed to be married. And lastly and most importantly, it would no longer require anyone to recognize a marriage if they didn’t want to.

    This bill does none of that as far as I can see. It just says the state no longer requires its employees to solemnize marriages. But people would still be “married” under state law and that would mean they would be subject to family law if they ever divorced, get whatever benefits the state gives to married people and lastly can still call upon the force of law to require people to recognize their marriage because the state does.

    Whatever this is, this is not getting the government out of marriage. And Shackford is being dishonest to claim it is.

  14. “”And then there’s the one Republican senator who opposed the change, complaining to NPR that it somehow “cheapens the value of the most sacred relationship in the world” by taking the government out of it.””

    If you think it’s a sacred institution, then get your marriage at the church instead of the county clerk’s office. Sheesh.

  15. Or, rather than go through all that silliness, just do what California did and let anyone sign up to officiate over a single wedding. That also solves this problem and avoids people’s discomfort over eliminating the identity and other verifications that happen when you apply for a license.

    Another option is for people to apply to one of the legal online churches that give you clergy status so you can officiate over a marriage. $20 and away you go; no judge required. Get married by your favorite drag queen, your best friend, that dude down the street who’s name you can’t remember. It’s all good. No new laws required.

    That aside, this entire article tries to frame a change in how license is provided as “getting government out of marriage.” If you want government out of marriage, mailing in your license to the clerk, who still records it, is about the least one could do–an effort so insignificant that describing it as “getting government out of marriage” qualifies as hyperbole. If you want government out of marriage, step one is eliminating all distinctions between single and married people at the IRS and all other government agencies.

    1. If you want the government out of marriage, stop having the government mandate what constitutes a valid marriage. That would get the government out of marriage and that is the last thing Shackford wants.

    2. Actual California law:
      “Both parties must appear in person and bring valid picture identification to the County Clerk’s Office to apply for a marriage license in California. Valid picture identification is one that contains a photograph, date of birth, and an issue and expiration date, such as a state-issued identification card, drivers license, passport, military identification, etc. Some counties may also require a copy of your birth certificate.”

      California still requires a marriage license. All that California did was allow the person to “solemnize” the wedding to be broadened. You still have to apply for a license.

  16. When you take marriage and you reduce it to a mere contract, it’s almost like you’re just doing nothing more than recording the deed to your property at the courthouse.

    Oh, but it is a contract, just not one between the two getting married. It’s a contract between the couple and the state. The state agrees to provide the couple with a number of special benefits, and in turn the couple agrees to, I don’t know, enter into a relationship that has the potential to further civilization.

    1. The couple agrees to live by the mandatory terms the state sets. The deal is the couple agrees to be coerced into the terms set by the state and in return, the state agrees to coerce everyone else into recognizing their marriage. This is why Libertarians once objected to government marriage.

  17. Getting rid of marriage licensing (& solemniz’n requirements) would be a good thing, as would abolishing other types of licensing by gov’t. But dont’ get the idea that that gets gov’t out of marriage; it just gets rid of the most trivial point. Gov’t courts will still have to decide cases on the basis of whether certain persons are married.

  18. In Texas, common law marriage just requires that you present yourself as a married couple. No need for government or religion at all though you can have a religious or other type of ceremony and you can get a certificate from the state at any point that can be back dated. Of course, you still need government if you’re going to divorce. I’m assuming this would now work for same sex couples but does anyone know for sure?

  19. How about we reverse the state’s involvement in marriage (at least MN’s process).

    Let’s require that all the parties that want to get married each get an attorney, then have them do multiple court appearances while trying to convince a family law judge (who comes complete with all sorts of prejudices) that they deserve to get married under something similar to the terms being offered by the parties that want to be married.

    After that is all hammered out and the marriage occurs, let’s let the dissolution of the marriage simply follow the contract that was set up at the outset of the marriage with no court involvement at all.

    This seems to make a whole heck of a lot more sense than our current system, though I think eliminating all implicit state involvement would be better.

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