Abolishing Marriage Licenses

On August 29, 2019, over four years after the landmark Scotus ruling in Obergefell v. Hodges, Alabama followed through on a lingering threat to abolish marriage licenses. The resulting law is…..interesting, to say the least.

Under the new law, county probate judges are now required to record marriage certificates but are no longer required to issue licenses. Couples are no longer required to apply for a license, and only need to complete and send a marriage certificate to a probate judge, who is required to declare the marriage valid. A ceremony may be held for the wedding, but solemnization is no longer required for a recognized marriage in Alabama.

Coincidentally, this method is similar to how marriage is done in Australia. Over there, marriage licenses do not exist, and are instead carried out in the following manner:

1. the couple notifies a certified celebrant one month in advance
2. the couple meets the celebrant in person with at least two witnesses over the age of 18 present
3. the celebrant recites the required words to solemnize the marriage
4. the couple signs the certificate in front of the celebrant and witnesses
5. the celebrant sends the marriage certificate to that state’s Registrar of Births, Deaths and Marriages, who registers the marriage as valid.

The Alabama system seemingly discards the need for a celebrant of any type. It’s as close as Alabama might get to common-law marriage. Unironically, this makes sense, even with the Respect for Marriage Act codifying Loving v. Virginia and Windsor v. United States into law. Now, on the other hand….

The “Utah Compromise”

I still think about how Utah’s SB 296 from 2015 has been hailed since as the “Utah Compromise” on LGBT rights. It was written to protect against discrimination in housing and employment for LGBT people. And now SCOTUS may further gut anti-discrimination laws in order to force this compromise on those states which have more comprehensive civil rights laws in place.

Only Indiana and Arkansas went so far as to pass their bills into law (Georgia and Arizona’s were both vetoed by Republican governors), and both did so without an LGBT nondiscrimination bill being considered by their Republican majorities.

The RFRA moment reached its crescendo in state legislatures in 2015-16 in the run-up to and aftermath of Obergefell v. Hodges, after which the religious right shifted its war-making in the direction of targeting public accommodations for transgender people.

What if this outgoing Congress had passed the Fairness for All Act, which adds the broad religious exemptions to LGBT rights protections sought by the LDS church? The ACLU criticized the bill in 2019 due to its singling-out of sexual orientation and gender identity for religious exemptions, its attempted undermining of then-ongoing court cases, and its undermining of child welfare protections.

I’m trying to find an example of a federal bill which would have advanced broad religious exemptions to all existing civil rights law, something like what Indiana’s SB 101 did. I’ve seen federal bills attempting to expand RFRA to vaccines and vaccine mandates during the height of the pandemic, but not yet something that would expand federal RFRA into a sledgehammer against all other federal civil rights law.

That’s the problem, IMO, with the Fairness for All Act being framed as a federal analogue to Utah SB 296. It specifically targets SOGI for exemptions, like bills filed during the pandemic by Ron Estes or Marco Rubio targeted vaccines, when the GOP could have gone whole-hog and targeted all civil rights law like Indiana SB 101 did. Meanwhile, Utah SB 296 only protected against discrimination in housing and employment, said nothing about SOGI in public accommodations, and was built into Utah’s extremely-broad religious exemptions for state civil rights law (even on race and color).

SCOTUS, these days, seems interested in carving out such exemptions on SOGI. The question is how far are they willing to wreck the Civil Rights Act(s) and Americans with Disabilities Act in the process.