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Alabama Moves to Replace Marriage Licenses with Contracts

Alabama Moves to Replace Marriage Licenses with Contracts

In anticipation of the Supreme Court’s ruling

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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Civil union. Incorporation. Actually, the latter model fits the contemporary concept of “marriage” and meets its needs better in a post-normal society. It is inclusive, and does not arbitrarily discriminate based on number, gender, relation, species, etc. It also promotes the concept of “assets”, with implicit rights for the corporation’s executive officers to establish and determine their disposition, including disposal of unwanted or underpeforming acquisitions. I suggest an annual audit in order to assess compliance with the State-established laws.

Good. Get the gov out of marriage.

    legacyrepublican in reply to showtime8. | June 4, 2015 at 10:05 pm

    This is not so far fetched a solution either.

    My Quaker ancestors got in trouble in the early 1800s with their brethren for having gone through the state run system of a getting a license to validate their marriage.

    The Quaker belief was that it was God who defined marriage, not man with his laws.

    So, there is precedent for the stance of Alabama historically to validate this method of looking of defining marriage.

    Radegunda in reply to showtime8. | June 4, 2015 at 10:39 pm

    As long as the government, representing the citizens, recognizes a “married” state and treats it differently from an unmarried state, the government has a responsibility to define and circumscribe what a “marriage” may be. If the government is truly “out of the marriage business,” then a “married” status should not even be officially recognized–except for enforcing a specific contract in the way that any other legal contract is enforced if the Alabama plan prevails. There would be no community property, and no one would draw a deceased spouse’s Social Security. Somehow, I don’t think that’s all acceptable to everyone who says we need to “get the government out of the marriage business.”

      platypus in reply to Radegunda. | June 5, 2015 at 2:45 pm

      Government marriage licenses have never been the sole exclusive method of creating a marriage recognized by law.

      I am married pursuant to the First Amendment prohibition against government intrusion into my freely mutually agreed relationship with my spouse. I call it a first amendment marriage although that is not the authority for it. It is not a common law marriage which is a condition imposed on certain relationships by force of law.

      Government licensed marriage is nothing more than authorized sexual congress. With no-fault, marriage is protective of nothing and a threat to all.

I forget which politician said this but he stated that government should not be involved in marriages. It needs to go back to the Churches. I think this would be a good plan.

    There’s a lot of churches, and I will laugh out loud if anyone suggests the government can/ should/ will regulate what the churches should deem to be marriage.

    And some churches are going to support polygamy. Some mosques absolutely will.

great unknown | June 4, 2015 at 4:23 pm

Classic stupidity to do this before the SCOTUS decision. If SCOTUS is indeed going to favor SSM, all they have to do is enter a single phrase: an authorization to marry may not be conditioned on the sexes of the partners.

If Alabama had waited with this until after the decision, SCOTUS might have left itself open for this kind of shenanigans, and Alabama might have bought itself a few years.

Of course, SCOTUS has also been known to change the text of its decisions even after they have been issued.

I think the core problem is that many people no longer understand the purpose of marriage. The purpose of marriage is not to distribute various benefits to adults or to give “dignity” to intimate relationships. Marriage is a heterosexual social institution, the purpose of which is to regulate heterosexual behavior. The social institution of marriage contains the ideals, norms, and values that, if followed, promote long-term monogamous, faithful relationships for the benefit of the children produced within these relationships. Thus marriage has a great deal to say to heterosexual couples, but little to say to same-sex couples, whose relationships are necessarily sterile.

Adding same-sex relationships into the mix only confuses people about marriage. It’s not that same-sex marriage harms your marriage or my marriage. It’s that same-sex marriage harms the social institution of marriage by making its purpose unclear. We present marriage to our children as an ideal. We say to them “some day you’ll get married and have your own children.” But if marriage is not fundamentally about the children, how then is it an ideal? Are we to say “some day you’ll get married and get a tax break”? Is marriage an ideal, or merely a “lifestyle option,” just one option among many?

The State is, or should be, interested in having stable, long-term heterosexual marriages for the sake of the children created in those marriages. But, as one blogger recently wrote, “homosexual couples are in no danger of creating, and then fraying, any bond that society has a stake in protecting.”

The danger of so-called gay marriage is not that it will change marriage. Rather the danger is that it may be the beginning of the end of marriage. If indeed marriage is really about providing benefits to adults and giving “dignity” to their intimate relationships, why should the State even care about that? Why even bother with an institution that has such a trivial purpose? How could such an institution provide ideals, values, and norms that tell people how they should behave?

Now, not surprisingly, there’s talk of doing away with marriage and replacing it with “contracts.” Will a contract carry the same moral force as wedding vows? Will it have the same legal force? Will a father feel obligated to continue to provide for children born under one contract after he has decided to move on to another “contract?” Will one party to a contract feel obligated to care for the other party to the contract through years of illness or financial distress?

I dread to think what our ancestors — the billions of people who throughout millennia, across continents, cultures, races, and language groups, for whom marriage could only be between male and female — would say of us. To our ancestors it would appear that we were gripped by some kind of mass moral and intellectual darkness that prevented us from seeing the truth of what marriage is all about.

    DaveGinOly in reply to siguiriya. | June 5, 2015 at 12:52 am

    Marriage is, and has been, defined by people. Institutions created by people change and evolve over time. If you can create an institution, you can change it later. No human institution remains unchanged over time (marriage certainly hasn’t).

    You mentioned “the children.”

    Although marriage is usually associated with the state’s interest in responsible procreation and effective parenting, not all of its purposes and advantages are directed towards these issues. Yet conservative legal analyses and moral/religious objections to alternate forms of marriage usually, if not always, come down to the state’s interest in children and how they are raised. However, many married people today intentionally avoid having children, others are on their second or third marriage and their parenting time is behind them before they entered into their latest marriage, and so on. Why should these people (straight, gay, poly) have their marriages constrained by laws written for marriages that include children and parenting? If this is the legal norm, let’s just admit then that marriage licenses are actually licenses to procreate. Once that is admitted, it should be possible to separate “marriage” (as a union between two or more persons) from “procreation and parenting,” and issue separate licenses for them, so that couples who do not want, can’t have, or are done with children aren’t limited by laws specifically directed at having and raising them. At that point, we should be able to get the government out of marriage licensing altogether, and to adopt a system of permitting/licensing directed exclusively at the subject in which the state has an interest – child rearing.

    Of course, such a proposition will raise howls about “freedom” and “liberty.” This is understandable, and, from some, hypocritical. Anybody objecting to such a scheme who also believes government should play a role in preventing “alternative” marriages, especially “for the children,” doesn’t have a leg to stand on in opposition to the licensing of parenthood, because that’s essentially what the government is doing now, so long as it structures (and defends) its marriage laws around having and raising children, and forces into conformation all consenting adults whether or not their unions will have anything to do with children.

    Most people would probably agree, that for various and very good reasons, licensing procreation is out of the question. But if government can’t license people before they are permitted to procreate (i.e., a system of regulation directed narrowly by and towards the state’s interest in protecting “the children”), why should it be able to do so indirectly, while it dictates directly to consenting adults how they can, and cannot, arrange their own personal affairs with respect to one another even when children are not involved? Surely, when the state dictates to consenting adults how they can and can’t arrange their personal affairs by invoking its interest in “the children,” what is it doing but interfering with that which should be beyond its authority (how adults arrange their personal affairs) in order to regulate indirectly that (licensing procreation) which is admitted it shouldn’t be allowed to regulate directly?

    anoNY in reply to siguiriya. | June 5, 2015 at 7:45 am

    “Adding same-sex relationships into the mix only confuses people about marriage. It’s not that same-sex marriage harms your marriage or my marriage. It’s that same-sex marriage harms the social institution of marriage by making its purpose unclear.”

    In regards to the State, marriages have always had more than one purpose. Marital status is used to determine heirs, divide property upon breakup, distribute tax incentives, determine who is allowed to visit whom in the hospital. Traditionally (note that word), marriage was also a property deal between a husband and a father-in-law, disregarding the female half of the relationship entirely.

    It is stupid to accuse gay marriage of “confusing” people about marriage when you yourself are confused…

      Shane in reply to anoNY. | June 5, 2015 at 11:58 am

      Marriage as it currently exist in the eyes of the State, is a contract. The scary thing about this “contract” is that it’s terms and conditions are not usually known by either parties and carries legal weight if the conditions of the contract are broken. Better that all of the terms and conditions are spelled out before hand and at least the two adults can be aware that there really are conditions and maybe have a hint at what they might be.

      Midwest Rhino in reply to anoNY. | June 5, 2015 at 11:59 am

      I’m thinking most of those other issues for gay or straight can be handled with written permissions or contracts. The big concern for the state is the children, and a joint commitment to raising them.

      The whole part about sharing SS, Medicare, or pensions, would seem to me, to have arisen out of the little woman at home, the Leave it to Beaver concept of family. But there is no reason to share those benefits with a spouse that raised no children. Why would government subsidize having a spouse that doesn’t work, except to reward them for raising kids?

      Lotsa folks get married at 55 and then live to collect their spouse’s pension or benefits after that spouse dies, costing taxpayers maybe another million each time. Those giveaways should only go to the couple that raised children. That’s not licensing children, but it is incentivizing the couple to stay together to raise them.

      Why should a teacher with no kids get to pass on his pension (or half of it) to someone he marries late? The spouse earned nothing and yet some city or state is expected to dole out the cash. There may be some benefit to the state if a spouse takes care of a sick mate, and keeps them from becoming the state’s burden. But that benefit exists without childless marriage being subsidized.

      Heterosexual marriage is not old fashioned, but the incentives for “the little woman” may be.

        anoNY in reply to Midwest Rhino. | June 5, 2015 at 2:09 pm

        This might work, so long as we recognize that gay couples (married or not) can also raise children, and should be treated the same as straight couples that do so.

          Vancomycin in reply to anoNY. | June 5, 2015 at 2:15 pm

          Well, they might be able to, but they shouldn’t be allowed to.

          anoNY in reply to anoNY. | June 8, 2015 at 11:36 am

          Vancomycin: “Well, they might be able to, but they shouldn’t be allowed to… because Jesus”.

          There, I edited your comment for you….

Do Alabamans believe in Sanity Clause?

My marriage contract attorney is on the right…

States are only “in” the marriage “license” or registration (and now, paternity establishment) business for the purposes of documenting WHO is the spouse of or otherwise legally related to whom, for, in turn, facilitating the orderly administration of laws that pertain to rights or obligations implicated by family relationships. “Who is family”.

This originated in connection with intestate land inheritance rights, land ownership being a singular interest of the state occupying it.

For many years, and still in some states, marriage licensing (really only a pre-registration identification of the individuals and only secondarily their eligibility to marry (e.g. not currently married to someone else, not underage, not under guardianship) and registration were not necessary. Common law marriages were recognized simply by publicly holding out as married, coupled with the passage of a certain amount of time.

One possible way to thwart the undermining of heterosexual marriages that create biological families is to cut out government benefits granted solely on the basis of individuals being married, and condition such benefits first on that the marital union also have produced biological children.

Would there be carrying on about “discrimination” from childless married couples, older second-marriage couples, and so forth? Undoubtedly. But being a childless union isn’t a protected class, and marriage benefit laws already arguably “discriminate” against many worthy people without incident (e.g. never-married supportive siblings who live together during their lives; e.g. that there is no spousal support requirement even in a decades long non-marital residential relationship that produces biological children.)

    DaveGinOly in reply to janitor. | June 5, 2015 at 1:09 am

    Having been in a common law marriage, I have researched the subject rather extensively. If you check, you’ll see that there was (is, for what few states recognize their creation) no “time” requirement. “Holding out” was all it took to establish a common law marriage. Some legal experts considered something as simple as registering at a hotel as “Mr. and Mrs. Smith” sufficient to establish a common law marriage. In fact, you can live with someone indefinitely, and, so long as you don’t hold out as “married,” you would not establish a common law marriage (even in a common law state).

    BTW, you may see some information online about states that don’t recognize, or don’t recognize the creation of, common law marriages. Some of the terminology and how they apply it is confusing and just plain wrong. All states recognize any legally-established marriage. If you establish a common law marriage in a state that still allows their creation, that marriage is recognized by every other state. (For instance, mine was created in Rhode Island, and enforced – during the division of property – via a divorce in Washington State, a state that does not permit the creation of common law marriage.)

    Sammy Finkelman in reply to janitor. | June 5, 2015 at 7:22 pm

    I think registering or defininbg marriage by the government originated, back in England, with the need to determine who was married to whom for the purpose of laws against bigamy and adultery.

“This alters the fundamental way we’ve approached marriage for a long time.

Watson continues, “It really does away with the traditional sense of a marriage certificate and what we’ve been dealing with in Alabama as far as marriage certificates for more than a hundred years, I believe.”

The bill itself disposes of marriage certificates and replaces them with a contract that you file with the probate judge.”

Hahaha! Now who is the one redefining marriage, Alabama!

Sammy Finkelman | June 5, 2015 at 7:20 pm

This is the system they had in the old Soviet Union starting I don’t know, circa 1930?

Couples just signed papers, and no ceremony, not even by the government.

Later on, I think around Brezhnev and Kosygin’s time, they started doing ceremonies. No, maybe Khruschev started it.