Earlier this year, Truth in Media reported on an Alabama bill that, if it had passed, would have abolished marriage licensing in the state and replaced the system with a contract process. The purpose behind the bill was to remove probate judges (who have a role in approving Alabama marriages similar to that of Rowan County Clerk Kim Davis in Kentucky) from the marriage licensing business in advance of what was expected to be a Supreme Court decision that would legalize same-sex marriage nationwide.
Earlier this year in Alabama, some local probate judges had been threatening to discontinue the issuance of marriage licenses in the event of a federal court ruling requiring states to provide for same-sex marriage. Alabama’s marriage licensing abolition bill would have prevented a Kim Davis style shutdown of marriages in rural counties and would have allowed those local officials who oppose same-sex marriage on religious grounds to stay out of the process. It also would have allowed same-sex couples to certify their marriages without having to engage in county-by-county legal battles.
However, opponents claimed that the bill was premature and unnecessary, and politicians voted against it, kicking the can down the road. Now, months later, following the Supreme Court’s decision in favor of same-sex marriage in the case Obergefell v. Hodges, some Alabama probate judges are, as predicted, refusing to issue marriage licenses, and Americans nationwide are forced once again to debate the otherwise-settled same-sex marriage issue again and again as more and more local officials follow Kim Davis’ lead and use the authority that states and counties have given them to deny Americans’ legitimate rights to free association.
The Alabama bill would have allowed couples to have a notary or attorney sign off on their marriage instead of an elected official or appointed government bureaucrat, taking politics out of the matter entirely. It also included some provisions preventing a slippery slope beyond same-sex marriage, such as a prohibition on still-married people marrying a second time.
Marriage licensing as a concept was not created to make marriage easier for couples. The primary purpose of any licensing system is to prevent non-licensed individuals from doing a particular activity.
When adults who are not immediate blood relatives voluntarily decide to marry one another, who could possibly be the victim? What interest does the state have in preventing consensual marriage between adults? What is the worst that could happen if we were to let free people decide who they should marry and take away government bureaucrats’ power to deny marriages on the basis of their personal biases?
For a glimpse as to what life without marriage licensing might be like, all we have to do is look to recent history, as marriage licensing is itself a fairly new concept in the U.S. As Ben Swann notes in the below-embedded CBS46 Atlanta Reality Check video, nationwide, universal marriage licensing began in the U.S. in the 1920s and was primarily established to consolidate abhorrent state-level licensing schemes that had originally been put in place to prevent interracial marriage (prior to a 1967 Supreme Court ruling in the case Loving v. Virginia that found all anti-miscegenation laws unconstitutional).
Considering marriage licensing’s troubling history and its conflict-laden, complicated present, maybe it is time to face the reality that empowering county-level government officials like Kim Davis to deny marriages based on personal biases is a policy that does not serve the public’s interest nor protect individual rights.
States should begin passing bills to get officials like county clerks and judges out of the marriage licensing business before countless Kim Davis types of conflicts begin gumming up court systems across the U.S.