If Alabama’s new law abolishing the issuance of marriage licenses was intended to circumvent the U.S. Supreme Court’s Obergefell v. Hodges decision regarding marriage, its Legislature utterly failed. Five years ago, some of Tennessee’s House members almost made the same mistake, and if they don’t get their thinking straight, I expect some to want to again follow Alabama’s lead. Here is why they should not.

Though the Alabama law passed just last week, it was initially proposed after the Obergefell decision in 2015. Obergefell held that it was unconstitutional for a state’s “enacted law and public policy” to license something as a “civil marriage” but limit the issuance of those licenses to two people of the opposite sex. Biological sex had to be irrelevant under a state’s enacted “civil” law.

Back then, some of Tennessee’s representatives wanted to follow suit, and I opposed that effort.

That proposed law did nothing but remove Tennessee’s county clerks as the official purveyors of a government license for a couple to enter into a legal marriage if the applicants were of the same sex. That’s all Alabama’s new law does, except that in Alabama, licenses are issued by probate judges, not county clerks.

What Alabama’s Law Actually Does and What Tennessee’s Would Have Done

Alabama’s law actually defined in state law for the very first time a legal marriage as a relationship between two people regardless of sex. Alabama’s Legislature actually voted to legalize same-sex “marriage.”

I doubt that was their intention, but if the only way to have a legally recognizable marriage in Alabama is to file what the Legislature requires and meet the conditions for filing, then the Legislature has defined what constitutes a marriage in Alabama and who the enacted law will recognize as having one.

Since the Alabama law does not require the two persons filing the statutorily required document for a legal marriage to be a male and female, that means being male and female is not a part of Alabama’s definition of a legal marriage. Defining a legal marriage without regard to a male and female is same-sex “marriage,” and that is what some of Tennessee’s representatives wanted to do.

Why Don’t Legislators Understand This Simple Logic?

While I don’t know the thinking of every Alabama legislator who voted for its same-sex “marriage” law, the problem is that too few legislators think outside the box when it comes to marriage, namely, the box that says marriage is something the state enacts in its public policy. That leads them to think that the Legislature must have a statute that defines and legalizes marriage.

But why would Christians in those civil government offices think that way when they protest against Obergefell on the grounds that God created and ordained marriage and that marriage as such existed prior to any positively “enacted” laws by civil governments?

It’s because their right thinking about marriage has not worked its way down into their thinking far enough.

In other words, Christian state officials who believe male-female marriage is a real thing, not a man-created thing, are stuck in the mindset that an adult man and woman cannot get married unless civil government gives them a de facto permission slip (license) to get married or, at a minimum, defines it for them.

Tennessee’s legislators simply need to repeal the marriage licensing statutes and let an adult man and woman enter into what the civil law has called for centuries a “marital contract.”

How Would a Man and Woman Marry Without a License?

What I’m saying is that a man and woman would marry the way they did it for centuries under the common law—a non-written type of “law” that precedes “enacted,” or statutory, written law. They would declare publicly their intention to be married as husband and wife, and then live as husband and wife.

I know that sounds rather loosey-goosey to those accustomed to the certainty of government paperwork, but that would only be true if one is playing loosey-goosey with his or her marital intention in the first place and wants to claim later he or she was never married.

So, to avoid widespread panic among those who like government paperwork and want to “nail down” the marital intention, the law would allow (not require) the happy and newly married man and woman to file a notice of their marriage with the county clerk and have the county clerk send that notice to the state for a statewide record of their private, non-government marriage.

Answering the Naysayers

I can hear the naysayers now: This is unheard of. This can’t work.

Hogwash!

Texas allows couples to choose between a licensed marriage and an “informal” marriage, or what I’ve called a common law marriage; a few other states still recognize common law marriages. Federal law recognizes common law marriages.

Moreover, this type of private “transaction” coupled with a “public registration” system has worked for decades with respect to real estate. People don’t get a government license to sell their home, and people don’t get a government license to buy a home. A buyer and seller contract for the sale and purchase of a home, exchange a deed and money, and then register that transaction to provide notice of the arrangement to the public and third parties.

In fact, these naysayers fail to realize that marriage was considered a civil (as opposed to ecclesiastical) contract at common law, the same as that governing a buyer and seller of real estate, only the former was known as a “marital contract” and the latter was known as a real estate contract. Even the United States Supreme Court has acknowledged that a marital contract and registration procedure was common before states switched in the 1900s to requiring licenses. There is really nothing new here.

Tennessee’s Constitution Affirms Marriage as a Civil Contract

The right to contract is not itself a right created and bestowed by civil government. People have been entering into contracts before there were any “enacted” statutes governing contracts. That’s why, as far as civil law (not ecclesiastical law) was concerned, this private, non-government created and non-government licensed understanding and form of marriage was called a civil contract.

That’s also exactly how our state constitution understands and treats marriage: “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state.”

Alabama’s Constitution is much the same. Unfortunately, its Legislature didn’t appreciate the fact that there is no constitutional conflict between a man and woman exercising their right to marry under the non-government enacted common law and Obergefell’s holding regarding the right to marry under “enacted law.”

Alabama can fix its mistake next year; let’s hope that next year Tennessee’s legislators won’t make the same one.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.