States may scrap marriage licenses as counties resist same-sex ruling
“No one’s happy with the situation the way it is,” adds A. Eric Johnston, counsel to the Alabama Citizens Action Program, which fought in court to preserve the state’s ban on gay marriages.
He says that while he doesn’t wholeheartedly support Albritton’s proposal, it could protect probate judges who think that issuing a license means they endorse the marriage.
“The word license carries with it the idea that the person doing it is approving of it,” says Johnston.
Albritton’s proposal “gives them an out.”
Williams and other probate judges who refuse to grant licenses contend that they need not do so given the wording of Alabama’s current law, which says, “Marriage licenses may be issued by the judges of probate of the several counties.”
The officials emphasize the word may, arguing that it gives them discretion about whether to issue licenses.
Legitimizing discrimination?
But others say that the probate judges are vulnerable to being sued. University of Alabama law professor Ronald Krotoszynski says that even policies that appear neutral can be unlawful if done for a discriminatory purpose.
He says that if the officials are refusing to issue licenses “because of antipathy toward same-sex couples,” they may be acting unconstitutionally.
Randall Marshall, executive director of the American Civil Liberties Union of Alabama, says the organization has considered suing, but no plaintiffs have come forward so far.
Wright suggests this isn’t surprising given the political climate in the state; 81 percent of voters approved a 2006 referendum banning same-sex marriage.
“It has always been my belief that all we need is a brave couple ... to be a plaintiff in one of those counties,” he says. Currently, Wright says, most couples are going to a nearby county for a license.
Marshall says that Albritton’s bill is “totally unnecessary,” adding that it could lead to unforeseen consequences. “In the rush to solve a problem that really isn’t a problem, the legislature could, in fact, create more problems,” he says.
The proposed bill would change “a well-developed system of law in Alabama and elsewhere and replace it with a different kind of procedure,” he says.
Suzanne B. Goldberg, a professor at Columbia Law School, criticizes Albritton’s proposal as “a symbolic effort to support those who reject marriage equality for same-sex couples.”
“It is difficult to see this as anything other than a legislator’s effort to legitimize disapproval of same-sex couples,” says Goldberg, who also is director of the Center for Gender & Sexuality Law and a longtime advocate for LGBTQ rights.
Some have questioned whether marriages formalized under the proposed procedure will have the same recognition—for purposes of benefits, adoption, even divorce—as the current system.
But some observers say there’s no realistic chance that officials from other states, or the federal government, would refuse to recognize marriages performed in accordance with Albritton’s proposal.
“An affidavit would be filed with the state that would entitle them to all of the rights of marriage,” says Yale Law School professor William Eskridge, a longtime advocate for the legalization of same-sex marriage. “I don’t see any reason why any state wouldn’t recognize that.”
He adds that even though the proposal would still require officials to perform the action of filing affidavits, doing so is relatively passive compared to conducting marriage ceremonies.
“It seems to me this is not a big deal,” Eskridge says of Albritton’s proposal. “As far as I can see, they’re not changing marriage, simply creating a new process by which people get their marriages recognized by the state.”
This article was published in the July 2018 ABA Journal magazine with the title "Marriage Refusals: Despite the Supreme Court decision invalidating bans on same-sex marriage, some states are still reluctant to go along."
