State Lawmakers Consider Eliminating Marriage Licenses

When the U.S. Supreme Court legalized same-sex marriage back in 2015, a number of Alabama probate judges refused to issue marriage licenses – to anyone. Four years later, judges in seven or eight counties haven’t budged. Recently the Alabama Senate approved proposed legislation that would eliminate marriage licenses. The bill could move to the full House of Representatives as early as this week.

The bill would ostensibly take probate judges out of the marriage equation. “We’re bypassing the state being the gatekeeper and permission-giver of a couple to enter into marriage,” State Sen. Greg Albritton, sponsor of the legislation says.

Albritton says his bill streamlines the process. A couple fills out forms for a marriage certificate – not a license. The probate judge records it, and that marriage is then recognized by the state. Alabama law currently says judges “may” approve marriages. Albritton’s bill changes that word to “shall” to require judges to accept the marriage certificate and record the marriage.

Albritton is optimistic the legislation will pass, though it has come up in the legislature in years past. But he’s taken heat from two sides: Conservatives say he’s denigrating marriage by letting same-sex couples marry. And they don’t like that the bill eliminates the need to solemnize the marriage. Alabama requires couples to have a marriage ceremony. Judges can conduct these ceremonies, but state law says so can a “licensed minister of the gospel.” Albritton says he’s not sure what that is, so his bill would remove that language. “I didn’t know Alabama licensed ministers of the gospel,” Albritton says. That provision, he says, is a way to separate church and state.

Critics on the left say he’s catering to the whims of probate judges who oppose same-sex marriage, but Albritton disagrees. “Actually what my bill does is allow this to overcome those problems so that anyone can get married without state interference without a problem.”

Others worry marriage certificates might not be recognized in other states. Albritton says he’s done the research and doesn’t anticipate problems. But Patrick Scarborough with the Human Rights Campaign, an LGBTQ advocacy group, is skeptical.

“Would they carry the same legal reciprocity that a marriage license does? Is there any technicality anywhere that we’re overlooking? We just don’t know,” he says.

Beyond the legal concerns, Scarborough hopes this isn’t a way to avoid addressing the underlying anti-LGBTQ sentiments that he says led to this problem in the first place.

University at Buffalo law professor Michael Boucai says the bill doesn’t actually resolve the issue of conscientious objections to same-sex marriage; it just shifts them. An official notarizing the affidavits needed for the form could easily object just as some Alabama probate judges have. Boucai also says the bill doesn’t change the state’s role as a gatekeeper as Albritton suggests.

“Imagine that the probate judge gets a form or an affidavit that states that one of the partners or spouses to any given marriage is underage. They’re not going to file that form,” Boucai says. “The idea that the state is not approving or disapproving just simply makes no sense here. The main purpose of this law is really to signal that Alabama does not like same-sex marriage.”

Boucai doubts there will be any problems with other states recognizing the Alabama marriage certificate. If there are, he says, those problems would fall on heterosexual couples too, and Alabama officials would likely work them out quickly.

He says he doesn’t know any states that have adopted the policy Alabama is considering, but he says the idea of ending solemnization isn’t new. Some see it as entangling religious marriage and the state. “That might be a good idea and people have proposed that from both the left and the right.”