In 1961, Alabama’s all-white legislature passed a law giving county probate judges the option not to issue marriage licenses. The law was intended as a way to allow counties to refuse legal recognition of “miscegenated” or mixed race couples, and now it’s being used as a way to discriminate against same-sex couples.
The law in question reads: “Marriage licenses may be issued by the judges of probate of the several counties” — not shall but may, meaning that the probate judges may or may not depending on their whim. Thus far, probate judges in Autauga, Bibb, Choctaw, Clarke, Cleburne, Geneva, Marengo, Pike and Washington counties have opted not to issue marriage licenses to any couples regardless of sexual identity, denying over 78,000 Alabamans the right to marry.
One judge, Nick Williams of Washington County says that issuing a same-sex marriage license would violate his religious beliefs and that he’s willing to go to jail blah, blah, blah… Although the Associated Press noted that several couples have been inconvenienced by the counties’ refusal, none so far have sued meaning that the counties’ refusal may go on indefinitely.
James Robinson, Executive Director of Free 2 Be — Alabama’s only LGBTQ community center — told Unicorn Booty, “These are very rural communities that are doing this.” He continued, “It’ll continue until the people in their own counties get fed up with it and realize they’re having to go somewhere else. Either that or the Alabama legislature changes the law, and Alabama’s legislature is not about to change [that] law.”
Robinson may be right. Alabama’s state legislature is Republican-led by a count of 71 to 33 Democrats, and the state’s Republican Party Chair bemoaned the Supreme Court’s legalization of same-sex marriage by saying: “Our boundaries have been breached once again by the overreaching hand of the federal judicial system. The majority of the people in Alabama [who oppose same-sex marriage] lost their voice today.” Yeeeah, not exactly LGBT-friendly.
When Unicorn Booty asked Susan Watson, executive director of ACLU in Montgomery, whether the ACLU will mount a lawsuit against the counties similar to the one mounted against Kentucky clerk Kim Davis, Watson responded:
“It’s always complicated. It would depend on the plaintiffs and a lot of different factors. It’s always faster if we can find a route besides going to court because it could take a year before a court hears it and then the state of Alabama could appeal it. If we could find a different way, that would be preferable.”
Watson says that plaintiffs in such a case wouldn’t have to be same-sex as the refusal affects heterosexual couples as well. She also said that she thinks the state legislature could be influenced and said that voters in each of the nine counties could vote out the probate judges since the judges are elected officials.
Until then, anyone looking to tie the knot in those nine counties are out of luck. But here’s an additional un-fun fact: section 102 of the Alabama state constitution outlawed “any marriage between any white person and a negro, or descendant of a negro” until the Supreme Court ruled it unconstitutional with Loving v. Virginia in 1967, and even then, it stayed on the books until voters eventually repealed the law in 2000 by a vote of 59 percent.
(featured image via Rikard Elofsson)