Why are there marriage “licenses” – a permission slip granted or denied by the state – rather than just contracts like any other? Why does government stand in the position to veto the choices of two people who want to commit to each other?
These are questions that the Alabama Senate considered in May this year. The result was the passage of Senate Bill 377, supported by 22 senators and opposed by only 3. Under this legislation, licenses would no longer exist for marriage. Marriage would become a plain contract filed with the Probate offices.
In effect, this would restore the traditional role of law in marriage as it has existed in most times and places, before the racially motivated and eugenically inspired idea of “marriage licenses” came along in the early part of the 20th century.
Governments embraced them as part of a larger effort to stop race mixing and to reduce procreation among undesirables. They were later entrenched as a standard of proof for government benefits claimants.
The conception of marriage as a legal contract, in contrast, exists as the private decision of the parties involved, along with a legal representative (and/or clergy) and witnesses. Just as anyone can make a contract for goods and services, marriage would become purely a matter of individual choice, not government decree.
This step would go a long way toward ending the division and confusion over marriage that has taken over the state, pitting one group against another and leading to a tug-of-war between the federal government and a politically ambitious judge in the state who speaks for religious fundamentalists.
It would bring about a nearly complete ceasefire in this front of the trumped-up culture war. Surprisingly, the move has been welcomed by most, if only as an answer to the legal confusions that have come about from conflicting court orders.
In January, a federal court ruled that Alabama must grant licenses to same-sex couples.
In response, the fundamentalist state Supreme Court Justice Roy Moore (of the 10 Commandments Monument fame) issued a directive telling probate justices to ignore the rule.
In March, the Supreme Court issued an edict stopping judges from issuing any licenses to same-sex couples. Moreover, following the Senate passage of this bill, a US District Court ordered the state to comply with federal mandates.
As a result, no one knows for sure what to do, and thousands of same-sex couples, driven out of the state in order to marry, are unclear whether their unions are recognized by the state.
How such a dramatic shift would affect the thousands of legal benefits and privileges afforded to those with licenses is unclear. Regardless, it will be worth the test because the current system is outdated, anachronistic, and deeply divisive. As long as government is the decision maker, the voting citizenry imagines itself to have a stake in the shape of decisions that should only involve those party to the exchange.
It would also end the dispute over finding a legal definition of marriage that applies to all. Keep in mind that this is not only about same-sex couples. Many religious traditions have strict rules concerning what is and is not a valid marriage. The Catholic Church, for example, will not codify a second marriage if the first one remains not annulled by Church courts. Their conceptions are not the same as the states’.
The search for a single definition for everyone, created and enforced by the state, is untenable, and threatens actual damage to the institution and to millions of people who, for whatever private reason, happen to disagree. The move from licenses to contracts would leave the terms and conditions entirely up to the couple. The civic order as such has no role whatsoever in intervening.
What is driving this change? Some people speculate that conservative Alabama politicians and judges anticipate being forced by courts to accept same-sex marriage and want nothing to do with it. By getting rid of licenses completely, they remove their own moral (or electoral) culpability for legally approving something they find offensive. Perhaps that's right, but ulterior motives aside, it seems like a step in the right direction.
To be sure, this is not a perfect solution. The best answer would leave marriage entirely up to private parties. In my own case, in 2014, I officiated at a wedding in which the couple filed their vows and promises on the Blockchain, a distributed ledger that provides an immutable record. Though it has no legal standing now, the couple was anticipating a time when marriage is completely taken out of the realm of public policy altogether.
Nonetheless, the end of the license and its replacement with a plain contract would take us a long way in the direction of the goal: a complete wall of separation between the state and marriage. Otherwise, the culture war will continue without end, and everyone will lose.