The Alabama legislature has passed a bill that would end the issuance of marriage licenses in the state.
No, the state hasn’t abolished marriage. But it is seeking a way for its probate judges—who sign the licenses—to avoid violating their religious conscience concerning same-sex marriages.
The new law would replace the licenses, which the probate judges sign as an attestation that the couples applying for it met all the requirements for marriage in the state of Alabama, with marriage “certificates.” These certificates are filled in by the couple, accompanied by an affidavit from the couple stating that they meet all the requirements for marriage in the state. At that point, the probate judge signs a statement that he or she has officially “recorded” the certificate in the public record.
That small difference in what probate judges signify by signing the new “certificate” makes a significant difference regarding religious conscience. The state’s probate judges view the recording of the certificate—and signing it in the process—as not requiring them to agree with or endorse the same-sex couple’s “marriage.” In the view of the bill’s sponsor, Senator Greg Albritton, “A license is permission.” And in the eyes of some of the state’s probate judges, permission equaled approval, a line they felt they could not cross with a clear conscience.
In 2015, when the U.S. Supreme Court handed down the same-sex marriage decision known as Obergefell v. Hodges mandating a constitutional right to same-sex “marriage,” some of Alabama’s probate judges objected to signing marriage licenses or performing a same-sex wedding for conscience reasons. Some stopped issuing marriage licenses altogether so as not to be accused of discrimination.
The crisis of conscience over same-sex marriages and government officials extended to other states as well.
Some states, such as North Carolina and Utah, chose to grant their marriage officials the right to recuse themselves and let another government employee sign licenses and/or perform civil ceremonies for same-sex couples. Kentucky eliminated the requirement for its county clerks to sign licenses. Alabama’s solution is simply another way to address the problem of conscience.
It is notable in Alabama that some Democrats voted against the bill even though they agreed that it treated all types of marriages equally. State Representative Neil Rafferty of Birmingham, for example, felt the law was “born out of prejudice” toward homosexuals. Rafferty self-identifies as homosexual and is now married to his partner of 15 years. His view is not uncommon among many in the LGBT community who feel that government officials must willingly perform duties related to same-sex marriage or seek another job.
The contrary view, that the religious conscience of government employees should be accommodated, is contained in the federal employment nondiscrimination law commonly referred to as Title VII.
The legislation just needs Governor Kay Ivey’s signature to become law. Ivey, a Republican, recently signed Alabama’s “heartbeat” abortion ban bill into law.
Photo from Jim Bowen via Flickr
