Alabama is considering a law to abolish marriage as we know it. Not the form or function, or course, but its legal nature:
“Right now, if you want to get married you go to the courthouse and the probate judge gives you a marriage license.
“…
“‘[SB377] does away with that and requires parties to enter into a contract and file it at the courthouse, as I understand it.'”
In effect, it is a private contract that becomes legally binding upon filing of said contract with a probate judge. Marriage licenses, then, would cease to exist in Alabama. This isn’t to say that “anything goes”:
“The bill itself disposes of marriage certificates and replaces them with a contract that you file with the probate judge.
“But that could add confusion for all kinds of folks who rely on marriage to prove a link to the federal government, insurance companies or anyone else. Plus it would put up another barrier for same-sex marriage.
“…
“If the Supreme Court orders all states to issues same-sex marriage licenses, Alabama could possibly argue that it doesn’t issue any licenses, it just limits the contracts it accepts.”
Chances are, such a defense won’t fly with same-sex-loving courts.
The only way such a divorce (no pun intended) could work is complete separation of marriage and state, where the state recognizes a domestic partnership, and marriage becomes something that people are free, or not, to accepts without the coercive force of the state to induce them to believe, speak, or act otherwise.
The text of the SB377 can be read below:
I’ve been throwing this idea around for a while. Marriage as a religious institution pre-existed the secular, contractual form, thus the religions own the name of marriage, and government participation thereof is interference in sacrament which is a violation of the establishment clause and the doctrine of separation of church & state.
The logical way to solve this problem is that government retains the contract, which they can redefine as they see fit, but is forced to rename it (civil union, domestic partnership, etc.) and strip away the ceremonial aspects, while the churches get to keep the ceremony and define it as they see fit.
This actually won’t do anything. The’ll still get sued for not accepting a same-sex marriage contract. Furthermore, trying to pigeonhole marriage into a contract is likely to end up a nightmare.
It’s more accurate to say that prior to the last 200 years, there was no secular/religious divide. The church handled marriages, but that didn’t mean that the state wasn’t involved. The church and state were intertwined for most of human history, and while each had their responsibilities but they worked together. You got married by the priest, who was basically a bureaucrat for the prince or king.
I don’t see this solving any problems. Again, trying to fit a concept as broad as marriage into something as limited as marriage won’t work, especially since the left will push to validate every crackpot coupling possible.