Alabama Ends Marriage
Alabama Ends Marriage
Well, the title of this piece is not quite right. However, in response to the legalization of same-sex marriages by the Supreme Court in 2015, Alabama lawmakers passed a bill to end the issuance of marriage licenses by probate judges. Although, I have to wonder if Alabama lawmakers think they are somehow sticking it to them gay-lovin’ libruls, the libertarian in me is cheering this decision.
Under the bill that passed today, couples wanting to get married would submit to the probate judge a form that includes an affidavit saying they meet the legal requirements of marriage and the probate judge would record that as the official marriage document.
This is the way it should be. No one is forced to participate in a ceremony or event with which they disagree or to which they have a moral objection. The probate judge would simply record a legal document, as is his or her job.
Marriage should be a legal contract between consenting adults, and I would treat it just like any free market issue. You don’t force a church to marry a same-sex couple if such a union runs counter to the teachings of the faith. Any church whose officials decide to perform such ceremonies will either lose congregants or gain them, based on individual beliefs.
All Americans should have the right to engage in a contractual relationship, as long as it does no harm to any other individual. And if you oppose said contract, stay the hell away. Free people should be able to engage with one another based on mutual consent. Period.
Marriage wasn’t always an affair of the heart. Marriages fostered political and economic alliances, as well as created business empires.
When the original European settlers voyaged to America, they brought marital traditions with them. A professor specializing in the analysis of family systems, Stephanie Coontz explains that for centuries, marriage was not necessarily a union of love; it was a way to secure one’s social status and ensure a stable financial future. As Coontz reveals, marriage revolved around political, social, and economic factors. Due to this cultural environment, earlier European and American societies considered it an anathema to marry solely for love or to marry someone of a different race or lower economic status. These societies also deemed procreation to be an important aspect of marriage. Since the husband and wife were the central building blocks of a family unit, as Coontz points out, these societies considered marriage to correlate with childbearing. Only a husband and wife were deemed appropriate to raise a successful child. Therefore, marriage was the only socially acceptable gateway to childbearing.
Throughout American history, the government transformed these religious and societal traditions into law, creating the field of marriage law. In addition, the 1888 Supreme Court case of Maynard v. Hill declared marriage to be “the foundation of the family and of society, without which there would be neither civilization nor progress.”
Here’s the thing. From anti-miscegenation laws to the “separate but equal” doctrine, the state has attempted to keep people whose unions weren’t, shall we say, “popular” from marrying. The marriage license was created in the US in the 1920s to ensure that the races were kept pure by preventing white people from marrying them nasty blacks.
And until the Obergefell decision in 2015, marriage licenses were also a tool for some states to prevent gays from entering into a union.
This is the essence of government force. It’s not about living together. It’s not about whether you’re in a relationship. It’s about being able to legally be recognized as a family member across the United States. In Obergefell’s case, it was about the plaintiff being able to put his name on his husband’s Ohio death certificate as surviving spouse.
In his dissent in Obergefell, Chief Justice John Roberts stated that same-sex marriage bans did not violate the Equal Protection Clause because they were rationally related to a governmental interest: preserving the traditional definition of marriage.
I have questions:
Why is preserving the “traditional definition of marriage” a governmental interest?
To what “tradition” was Roberts referring, given that traditions have differed throughout societies over time?
In another dissent, the late Justice Scalia – one of the few times I disagreed with his brilliant mind – wrote that the Court’s decision effectively robs the people of “the freedom to govern themselves.” However, preventing people from freely engaging with one another contractually robs them of the freedom to engage in relationships with one another that both find agreeable.
Justice Thomas wrote that with the Obergefell decision, the ” judiciary strays from the Constitution’s text, subverts the democratic process, and “exalts judges at the expense of the People from whom they derive their authority.”
But does the Constitution give the government the right to define relationships between two consenting adults? The powers of the US Congress are clear, and they are directly related to the economy and national security. Implied powers “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof” refer to the powers specifically enumerated.
Defining a legal relationship between individuals is not on that list, and it’s the epitome of government overreach and the ever-expanding power of the federal government.
But whether you agree with my assessment of Obergefell or not, it’s tough to argue that what Alabama is doing doesn’t make sense. It allows judges to avoid the gay marriage debate altogether. It eliminates the conflict of the existing Alabama law with the Obergefell decision. It would put all couples on equal footing, requiring them to submit a form confirming that they are of legal age, are entering the marriage willingly, are not already married, and are not related.
And it takes the state out of the issue, which as far as I’m concerned is good for everyone.
Featured photo: Pixabay; Cropped; Pixabay License