Alabama judges are invoking Jim Crow laws to avoid issuing marriage licenses

In case there was any confusion about the fact that social conservatives’ massive resistance to same-sex marriage is a direct descendant of their massive resistance against racial equality in the Civil Rights Era (from the Associated Press):

As Alabama’s all-white Legislature tried to preserve racial segregation and worried about the possibility of mixed-race marriages in 1961, lawmakers rewrote state law to make it optional for counties to issue marriage licenses.

Now, some judges who oppose same-sex marriage are using the long-forgotten amendment to get out of the marriage business altogether rather than risk issuing even one wedding license to gays or lesbians. In at least nine of Alabama’s 67 counties, judges have quit issuing any marriage licenses since the U.S. Supreme Court legalized same-sex unions in June.

Move over, Kentucky. Alabama’s wayyyy ahead of you when it comes to codifying the right to discriminate. By changing one word in their statutes regarding the issuance of marriage licenses — “shall” issue became “may” issue — they made it legal for county officials to decide whether they would issue marriage licenses at all. They didn’t “discriminate,” per se, they just effectively gave each county an up or down choice as to whether to execute a function they had otherwise been assigned. And officials in those counties made that choice based on whether they’d be comfortable doing their jobs when it meant serving those people.

In theory, this law could allow every county in Alabama to stop issuing marriage licenses. In practice, it is already creating an undue and almost certainly illegal burden for Alabaman couples:

Gay marriage via Shutterstock

Gay marriage via Shutterstock

“It is a religious freedom issue, but more than that I believe it is a constitutional issue,” said Williams, who last month cited the arrest of Kentucky county clerk Kim Davis in asking the Alabama Supreme Court to declare that officials don’t have to allow same-sex marriage if doing so violates their religious beliefs.

Like Davis, Williams said he would go to jail before he would approve a marriage license for a gay or lesbian.

Judges in three adjoining counties stopped issuing licenses for similar reasons, creating a region in southwestern Alabama where marriage licenses aren’t available for 78,000 people. As a result, Bo Keahey and fiance Hannah Detlefsen will have to spend nearly two hours on the road traveling to and from Monroe County before their November wedding because their native Clarke County has quit issuing licenses.

Taken together with Alabama’s recent move to shutter drivers license bureaus in nearly half of their counties — with the closings having a disproportionate effect on its African-American population and making it harder for them to acquire required forms of ID for voting — it appears as though the state’s government is in a period of social and political retreat. Rather than let LGBT couples get married and black people vote, many in state and local governments are simply willing to shut down the governmental functions that make such activities possible, daring these minority groups to stop them.

They do know how this story ends, right?


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Badgerite

    This really does give the lie to their arguments in court though. If they are willing to deny the right of marriage to everyone rather than recognize the same rights for same sex couples, they are not about protecting or saving the institution of marriage. Clearly. All of their arguments that this was about policy choices rather than religious choices were untrue.

  • Rick B

    What is the difference between getting a marriage license and not getting one? Getting a license provides evidence that the government will, and must, provide the legal advantages of marriage to the people with the license. Without a license, then marriage benefits are offered at the discretion of the agency or organization offering the benefits.

    As a social security Claims Representative in the 70’s we provided wife and widow’s benefits under the law, but it was legally based on acceptance of the validity of the marriage. For people married in the U.S., that meant getting the returned salience in the county of the marriage. But the real complications occurred when individuals married in China applied for benefits. As an administrator of the social security benefits, I had to determine if the marriage was valid. The great horror was to determine the validity of a Chinese Custom Marriage.

    It required getting statements from those who were present at the wedding, determining whether the ceremony was the valid ceremony in that culture, and deciding if all the requirements of a valid marriage were in fact in existence. It could be done, but the paperwork was horrendous. And just because the paperwork was difficult was not a valid reason for denying wife or widows benefits.

    A marriage license is an administrative device for avoiding all those questions and issues. They are determined when the clerk issues the license. All the clerk is doing is attesting that all the requirements for a valid marriage exist. Once that is determined, it is recorded and not normally questioned after that. No one had to do the up to two or more inches of paperwork required to investigate and determine the validity of a Chinese Custom Marriage.

    The difference between getting the marriage license and not getting one is the certainty of the legal validity of the marriage for all legal purposes. If the clerk that issues the license does not have a valid legal (not religous, but legal) objection, then that clerk MUST issue the license.

    Not to issue the license means that lawyers will get rich. They don’t need the money.

    It’s an issue of legal convenience, not a religious issue.

  • Steve E Ames

    No Federal to any state that does not comply with
    issuing marriage licenses

  • Elizabeth Ann Stewart

    They don’t care how it ends; they just want to get re-elected for the next term. And they think that they won’t go to jail for doing something so unconstitutional as denying rights to “those people.” Indeed, they will most likely keep right on drawing their government paychecks, just like that woman in Kentucky.

  • emjayay

    I’ll just say it again. Secede already.

  • It’s not Constitutional, not even remotely, but blindly partisan ideologues don’t care about that kind of thing.

  • Badgerite

    I believe this would also be a denial of the Equal Protection Clause but this time it also involves non same sex couples. By what earthly legitimate state interest do they make the right to marry dependent on the religious preferences of the county clerk? Seriously. This just discriminates based on religious belief. And it discriminates against anyone living in that county. How is that Constitutional?

  • Indigo

    No, they don’t know how it ends.
    Yes, they are that stupid.

  • sonoitabear

    “They do know how this story ends, right?”

    Yep; national Guard troops deployed to Alabama to enforce Federal law…

  • MoonDragon

    I guess a few prenuptial births to young Bubba and Melinda Sue and their friends is a small price to pay to keep Adam and Steve or Amanda and Eve from tying the knot.

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