Earlier this year, Alabama became a focal point in the ongoing resistance in some states to legalizing gay “marriage” (read about it here and here).  Watch a PBSNewshour clip that summarizes the issue (and the professor interviewed try to downplay the unpopularity of gay “marriage” in Alabama):

Much of the debate centered on the Chief Justice of the Alabama Supreme Court who was and is adamantly opposed to federal government intervention in states’ rights regarding gay “marriage,” but Chief Justice Moore is not the only Alabamian who is taking actual steps to address their objections.

The Alabama state legislature has drafted a bill that moves to replace marriage licenses with contracts. Hot Air reports:

Assuming a pending bill in Alabama makes it all the way into law, we’re about to see an unusual test case in the marriage wars. Rather than arguing over the definition of marriage for the purposes of issuing licenses, the Heart of Dixie is moving to do away with marriage licenses entirely and replace them with contracts.

. . . . That may sound like little more than a technicality, but the underlying purpose seems clear. In anticipation of a Supreme Court decision which will probably wind up forcing all states to issue marriage licenses to any couple (regardless of the gender of the parties) who wishes one, Alabama would simply shrug and respond by saying that they don’t have any licenses to issue anyway.

At first blush, this seems like an excellent compromise in that it removes the government (state and federal in one fell swoop, perhaps) from the business of marriage, thus leaving marriage to religious institutions where many (including myself) argue it belongs.  Under the proposed bill, a couple can enter into a legal contract that carries the same legal weight as marriage currently does.  It’s not clear to me if this is intended to include same sex couples.  If not, then the problem is simply shifted to a new venue.

Elizabeth Price offers some additional insight and raises some intriguing questions:

The purpose? Presumably, by taking the State out of the business of issuing marriage “licenses,” marriage would just become another private contractual undertaking, and any Supreme Court ruling that, under the Due Process or Equal Protection Clauses, States must issue marriage “licenses” to same-sex couples would not bind the State of Alabama, which would no longer be in the marriage license business, as a technical, formal matter.

But this seems a bit silly, since SB 377 says, “Effective July 1, 2015, the only requirement to be married in this state shall be for parties who are otherwise legally authorized to be married to enter into a contract of marriage as provided herein.”  It then lists the required form of the contract. But the key question is who is “legally authorized to be married”?  Presumably, the State of Alabama would continue to specify this (and has, pursuant to a state constitutional amendment limiting marriage to one man, one woman). And also presumably, the Alabama Senate did not intend to authorize contractual marriage among multiple persons (polygamy) or among closely related individuals (incest).

It’s truly fascinating in a legal and Constitutional sense and important in a socio-cultural sense, so it will be interesting to see how this plays out . . . if this bill makes its way into law.



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