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Despite the Supreme Court’s invalidation of all state bans on same-sex marriages on constitutional grounds in Obergefell v. Hodges, judges in certain states continue to refuse to sign marriage licenses of same-sex couples. In an effort to appear neutral, however, these judges are refusing to sign all marriage licenses, even those of opposite-sex couples. In Alabama, undoubtedly an extremely conservative state, probate judges in at least seven of 67 counties are refusing to issue marriage licenses to all couples, whether same-sex or opposite-sex. These judges are referring all couples to other Alabama counties to obtain marriage licenses.

One Alabama resident, Gary Wright II, is an avid gay rights activist who was amongst a class of plaintiffs who obtained an injunction from Senior U.S. District Judge Callie V.S. Granade in Mobile, Alabama in early 2015. Judge Granade ruled that the state’s refusal to allow same-sex couples to marry violated the constitution. Now, Wright continues his fight to obtain equality for same-sex couples. He is particularly heart-broken over the continued push-back from state judges to recognize same-sex marriage.

Amazingly, a bill has been proposed by Republican Senator Greg Albritton, who believes he has a solution to this issue. The proposed bill, SB 13, would require all couples who would like to marry, whether same-sex or opposite-sex, to file an affidavit with their local counties, rather than obtain a marriage license signed by a judge and complete a subsequent marriage ceremony. Albritton recognizes that the refusal of these public officials to allow same-sex marriage is a major issue that will likely create additional lawsuits and cause additional court costs that can be easily avoided. Lawmakers in other states, such as Indiana, Kentucky, Missouri, and Montana, have introduced similar measures to try to solve this problem.

The big issue here is that public officials are refusing to sign their names to marriage licenses of same-sex couples because it violates the public officials’ religious beliefs. They are disguising their disdain for same-sex couples by also refusing to sign off on marriage licenses of opposite-sex couples. This issue is particularly interesting because there are likely public officials who disagree with sex before marriage, or cohabitation before marriage. Nevertheless, these public officials should not be allowed to refuse to sign a marriage license of a couple who does not share this religious belief and has in fact had sex and possibly even cohabitated prior to marriage. Albritton’s proposed bill would circumvent these issues altogether by requiring all couples who wish to marry to file an affidavit with their local counties directly, rather than obtain “permission” of a public official who does not agree with the marriage. Specifically, the affidavit would need to state that the couple meets all the legal requirements for marriage, including that they are competent, of age (either 18 or 16 with a parent’s consent), and not married to anyone else. The couple would then need to sign the affidavit and record it with the probate judge of their county. The proposed bill would require the probate judge to accept the affidavit if it satisfies all legal requirements. At that point, the couple would be married, as the proposed bill would also abolish the requirement for the couple to complete a marriage ceremony.

Since 2015, Albritton has introduced this proposed bill every year. Unfortunately, the proposed bill has not passed even though much of the state Senate supports the bill. Albritton plans to reintroduce the bill again next year, hoping it will finally gain enough traction to pass. However, he is working against a highly-conservative state, as 81 percent of voters approved a 2006 referendum that banned same-sex marriage. Regardless, this is an ongoing issue that Albritton would like to find a solution for, but as he says, “Change is difficult, especially when you’re dealing with an emotional, traditional matter such as this.”

Even though the bill has continued to gain support, many critics of the bill do not like the fact that the bill allows an “out” for these public officials, who should just follow the Supreme Court’s ruling in Obergefell v. Hodges. However, at its core, the bill allows the public officials to maintain their religious beliefs without projecting the beliefs onto same-sex couples who clearly disagree. Additionally, the bill would allow all couples, regardless of whose religious beliefs they “violate”, to get married and continue their pursuit for a happy life. Certain supporters of the bill agree that the bill allows public officials to get out of condoning something they disagree with, but it also allows for the marriage to still take place. In total, every side wins. On the other hand, there are critics who believe that the pass of this bill could create more issues down the road, because it will enforce the pass of laws that allow judges to avoid upholding laws they disagree with.

This issue is undoubtedly a highly-emotional issue that is rooted in deep religious beliefs. Regardless, there is an argument to be made that a public official should not be able to disregard the Supreme Court’s ruling in Obergefell v. Hodges by refusing to sign off on same-sex marriage licenses. However, the issue in Alabama is that Alabama’s current law states, “Marriage licenses may be issued by the judges of probate of the several counties.” The key word is “may” because it technically allows the judges to refuse to issue marriage licenses. Despite the vague wording of the Alabama law, many people believe that these judges should just follow Obergefell v. Hodges. However, others stand by their belief that the judges are within their authority to enforce their right under the Alabama state law as it stands.

Interestingly, in refusing to sign off on all marriage licenses, the judges likely believe they are being neutral and not discriminating against same-sex couples. However, there are many critics who believe the judges could still be subject to lawsuit because their decision to refuse to sign marriage licenses is grounded in their refusal to allow for same-sex couples to marry. Refusal to issue marriage licenses to all couples because of an aversion to same-sex couples may in fact still be unconstitutional, and therefore unlawful.

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