According to a variety of sources, Alabama's state legislature may "end marriage licenses" if a bill now being heard in the legislature goes forward.
On it's surface, this would certainly appear to be a step in the right direction. The idea that the state should be in a position to decide who can be married — and who cannot be — requires a high degree of trust in the state and its ability to regulate and control societal institutions that ought to be regarded as far beyond the state's level of competence.
As Andrew Syrios has noted, the government takeover of the institution — in the West, at least — is largely a modern invention1 :
The institution of marriage has been a bedrock of civilization, but that had nothing to do with government. In fact, it’s important to note that governments didn’t become involved in the institution until relatively recently. And once involved, their role has been far from benevolent. Stephanie Coontz describes the history as follows:
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
In the American colonies, marriages were required to be registered, but that was about it. Then came a combination of Jim Crow and the Eugenics movement and wise bureaucrats decided they needed to direct the decisions of their benighted citizenry.
Presumably, then, the solution would be to somehow disentangle the state from the marriage issue. In practice, though, what would a "legislative fix" abolishing government marriage really look like?
That remains unclear, although it seems that the Alabama legislature is taking a crack at it.
According to The Montgomery Advertiser: a new process of registering marriages would replace marriage licenses in the state with 'affidavits, forms and data' filed with the local probate judge acknowledging that a marriage has taken place.
This may strike many people as a six-of-one-half-dozen-of-another situation. What's the meaningful difference between a marriage license and an affidavit? Aren't these just two different words for the same thing?
Well, it depends on which state you are in, and the full extent of the role of state agents in licensing in the marriage.
In some states, the term "license" really is apropos since marriages must actually be authorized by a government official.
In Alabama, for instance, the statute currently reads (in 22-9A-17):
(b) The judge of probate who issues the marriage license shall prepare the record on the form or in a format prescribed and furnished by the State Registrar upon the basis of information obtained from the parties to be married.
(c) Each person who performs a marriage shall certify the fact of marriage and return the record to the judge of probate who issued the license within 30 days after the ceremony.
(d) Every judge of probate issuing marriage licenses shall complete and forward to the Office of Vital Statistics on or before the fifth day of each calendar month the records of marriage returned to the judge of probate during the preceding calendar month.
In this case, it does appear that the judge can act as a gatekeeper who can prevent the issuance of a license. Indeed, Roy Moore, when he was a justice of the Alabama Supreme Court, was suspended for stating that probate judges ought to refuse marriage licenses in cases where the judges thought the applicants to be unacceptable (i.e. they were a same-sex couple).
The new bill would circumvent this situation by putting more power in the hands of the marrying couple itself — and thus less in the hands of a government official. The bill repeals the section quoted above and substitutes this section (among others):
The office of the judge of probate shall record, in a permanent record, each marriage presented to the probate office for filing so long as the affidavits, forms, and data are submitted as required by this act, and shall forward each marriage filed with the probate office during the preceding calendar month to the Office of Vital Statistics on 18 or before the fifth day of the following calendar month.
In other words, those who wish to marry shall simply fill out the appropriate paperwork and submit it to the appropriate government office, thus registering the marriage. While not totally abolished — there are still some requirements, such as restrictions on minimum ages — the need for a government "seal of approval" becomes greatly reduced.
Moreover, the new bill also repeals the need for "solemnization" of the marriage, while noting that the legal (i.e., governmental) aspects of the marriage are not tied to its ceremonial or religious aspects:
A civil and independent or religious ceremony of marriage, celebration of marriage, solemnization of marriage, or any other officiation, or administration of the vows of marriage may be conducted or engaged in by the parties by an officiant or other presiding person to be selected by the persons entering into the marriage. The state shall have no requirement for any such ceremony or proceeding which, if performed or not performed, will have no legal effect upon the validity of the marriage.
It is perhaps this section that could be most beneficial in finally clarifying that, yes, religious marriage and government marriage are not the same thing — and the two ought not to be confused.
At this point it perhaps remains far too much to ask that governments excuse themselves from the issue of marriage. After all, marriages do function as legal contracts, and the growth of family law over the past century has made marriage a significant and common issue deliberated in the courts.
For those familiar with the history of marriage in the US, the proposed Alabama statute won't appear especially radical or groundbreaking at all. Ten states in the United States still continue to recognize common-law marriages. And those familiar with the history of the American Frontier will likely recollect that marriages in sparsely populated areas of the country were never regulated in practice. "Marriage" in such areas was simply a matter of recording the union with a county pencil-pusher. And many married couples didn't bother even with that.
Nowadays, however, thanks to tax laws, federal pension benefits, and a growing number of ways that legal marriage status makes a meaningful financial difference to those involved, legal marriage has become increasingly important. But before the days of Social Security and income tax returns, legal marriage was largely irrelevant.
The pending change in Alabama represents to a certain extent the de-bureaucratization of marriage in Alabama. While it's something that's being cast as an issue motivated by the gay-marriage debate, there is a larger issue here in which government control of the institutions is being scaled back. Should the Alabama legislation be signed into law, government marriage in the United States will move one step closer to being little more than a civil contract, and that's a good thing.
- 1Christopher Westley points out (https://mises.org/blog/saving-marriage-state) that support for government intervention in marriage often comes from devout Christians — but the Christian scriptures themselves make it clear that the institution of marriage predates the state: Genesis 2:25 refers to Adam "and his wife" in a time period, presumably, long before any states existed.
