A state-level marriage bill in Alabama is showing a potential way forward for balancing marriage and religious freedom in post-Obergefell America.
It’s been nearly two years since the Supreme Court issued its Obergefell ruling. Since then, Kim Davis went to jail, was released, and finally ended her lawsuit just a few months ago, but that really doesn’t give an answer the serious questions about the nature of marriage and the power of the government to redefine.
Last week, the Yellowhammer State’s Senate passed a measure that would abolish marriage licenses altogether while removing ceremonial requirements for obtaining marriage.
Instead of the state issuing documents and requiring that agents of the state take part in the marriage process, the state would simply record affidavits of marriage between two consenting parties.
The measure’s sponsor, Sen. Greg Albritton, (R), introduced similar legislation last year, which never became law. It’s also similar to a measure that was introduced in the Oklahoma legislature in 2015.
“When you invite the state into those matters of personal or religious import, it creates difficulties,” Albritton told the Associated Press in regards to his efforts last year. He continued, saying:
Early twentieth century, if you go back and look and try to find marriage licenses for your grandparents or great grandparents, you won’t find it. What you will find instead is where people have come in and recorded when a marriage has occurred.
This would eliminate situations in which conscientious objectors to same sex marriage in the government could be forced to directly cooperate with something contrary to their faith, while not blocking access to marriage contracts for same-sex couples. More importantly, it gets the state closer to its appropriate level of involvement, which should be close to nothing.
Whether you believe that marriage is a covenant from God (in which case your church should be the primary arbiter) or a simple contract between two people with happy feelings (in which your interest in equal application of the law) this arrangement looks like it would work out for everyone.
Firstly, marriage is something that is rightly handled by institutions and communities to begin with, not by bureaucrats and politicians. Sure, the government has abiding interests therein, but — in a system where the institution has been reduced as Scalia put it “to the mystical aphorisms of the fortune cookie” — those should be limited to little more than property rights.
The idea that the modern state should act as a barrier between free people and that institution has created a crisis of federalism between the states and the Supreme Court. Furthermore, the government’s involvement provided the legal track for Obergefell to happen in the first place. In other words, if marriage is the government’s business it only made sense that government would redefine it once the cultural winds shifted.
The only reasons to preserve the current state of things is if you either 1. Entertain the idea of states being able to uphold natural marriage (which didn’t work pre-Obergefell) or 2. Want to continue treating the state as an arbiter of a pre-political institution, which doesn’t make sense either.
Which is precisely why this new Alabama marriage bill could be the solution for everyone.
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.