Posted on 06/03/2015 7:13:20 AM PDT by SeekAndFind
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.
Right now, if you want to get married you go to the courthouse and the probate judge gives you a marriage license.
Attorney Jake Watson explains, “[SB377] does away with that and requires parties to enter into a contract and file it at the courthouse, as I understand it.”
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.
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. Elizabeth Price explains the difference.
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”?
That last question is the big one. If the Supreme Court specifically states that “marriage licenses” must be issued, then Alabama has an out on a technicality. But since they will be substituting “contracts” in place of the licenses, the state gets to define who is eligible to enter into such a contract. And their state constitution currently says that only traditional, opposite gender couples could receive one. Of course, that boils down to what is essentially just an argument over semantics and a new round of challenges and appeals would likely follow.
The first part of Alabama’s move (the removal of licenses) is in keeping with what I’ve always felt was the solution to this thorny issue. As I’ve stated here many times, my unpopular opinion is that the government shouldn’t be claiming the power to demand a license from or charge a tax on two consenting adults who want to get married, so doing away with the licensing process would be a good first step. But that’s really not what’s going on here. The legislature is basically just looking to replace the license with a contract, and one can safely assume that it will be a requirement and have some sort of processing fee associated with it, so nothing really changes.
It’s an interesting approach, but one that will eventually be shot down in the courts if the current legal arc continues at the national level. But it might add years to the process and allow more time for the national debate to play out. We’ll keep an eye on it as it hits the inevitable wall of legal challenges.
Breaking away is the only option.
Sounds like a good idea. That way people will see the contract as the actual legal instrument that it is, and may have second thoughts........................
Will there be any legal protections left in marriage, like not being forced to testify against a spouse?
This actually opens up a lot of possibilities. Let churches define marriage.
This is exactly what should be done if the Courts are going to try to ignore its definition - put it back entirely with the churches to define it.
I agree with this move as a step towards freedom. It does change the State’s role from “granting permisssion” to “recognizing a contract.” In addition, it would eliminate the ability to force any organization, for example churches, from performing the act of executing the State’s granting of permission.
Much more difficult - they can’t force the legislature to meet and reinstate a statute for marriage licenses no matter how many rulings they issue.
I think they should have a bunch of contracts. They should have them with a percentage. The people who want to can pick 10% for you 90% for me or 50/50 or 60/40 etc. for when they get separated. Let the people pick which one. Then there is no haggling or hiring lawyers. Judge divides it all.
Mr. TwoFaygz: “I shall sue Alabama, for they now deny me the right to a marriage license.”
Mrs. Twofaygz: “You go get them, honey!”
Alabama: “We don’t give marriage licenses to ANYONE any more.”
Mr. and Mrs. Twofaygz: (shrieking) “YOU ADMIT YOUR CRIME!”
I’m headed to the Courthouse with my toaster. We’ve known each other for a long time, the entirety of which the toaster has lived in my house. It’s about time we got hitched.
The gov’t should never have been involved. Contracts is the best term for the gov’ts role here.
So how does all that work if there is a challenge to ‘dad’s will, when mom and dad araren’t ‘married’?
Uh... they've been doing it for at least a year. And they don't need a legislative action, the judges just order court clerks and officials to comply, or else.
Or what about probate-free inheritance?
I think OK was looking to do this also.
“Let churches define marriage”
Until the government starts threaten them too. (IE loss of tax exempt status.)
Marriages existed before churches came along. It is clearly a defined territory for property settlement/ownership, and not much else. Some legal intent was put into the concept in the early 1800s to prevent a guy from marrying multiple women.
I’m in agreement with the method Ala has gone with this. It puts the bulk of the gay marriage argument into a non-issue. Contracts are the way to go. Face it....threesome marriages would be five years away from another mess....so we are already putting this out the door by just saying it’s a contract situation only.
The law of unintended consequences is going to bite them in the butt.
The answer to the Left’s attempt to destroy the institution of marriage is not to destroy the institution of marriage, it’s to defend the institution of marriage.
Sadly, Republicans now are too cowardly to do something so simple and necessary.
So...this would mean a woman can’t marry her horse...a brother can‘t marry a sister...a trio of women can’t marry each other? Hhmmmm...contract law only? This could be good. Means the idiots would go directly after churches tho.
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