For just over a month now, Alabama officials have not issued marriage licenses. They instead record certificates memorializing marital contracts, signed by married couples and notarized.
The law authorizing this change is a sensible and principled compromise. Indeed, it might be a model for other states. It accommodates both the opinion of the U.S. Supreme Court, expressed in its 2015 Obergefell v. Hodges ruling, that natural marriage can no longer be privileged in law and the rights of state officials who cannot in good conscience affirm a conception of marriage that they understand to be false.
Alabama probate judges have long had different legal obligations than Kim Davis, the county clerk in Kentucky who stopped issuing marriage licenses after Obergefell.
In August, the United States Court of Appeals for the Sixth Circuit ruled that Davis infringed the rights of same-sex couples. Kentucky law requires a clerk to issue licenses. And the Supreme Court’s ruling in Obergefell requires that, if states license natural marriages then they must also issue licenses to same-sex couples.
Davis argued that she was not flouting Obergefell. She did not discriminate; she did not issue licenses to anyone. In the words of the Fourteenth Amendment to the U.S. Constitution, she did not deny anyone “equal protection” of the laws of Kentucky. But the Court of Appeals ruled that her refusal to issue licenses violated a right that was “clearly established” in Obergefell and grounded in the Due Process Clause of the Fourteenth Amendment.
The idea that the Due Process Clause requires states to issue marriage licenses is implausible.
So, the sensible interpretation of the Davis ruling is that, because Kentucky law requires clerks to issue marriage licenses, Davis shirked her duty by refusing.
That reasoning has no bearing on Alabama law. Even before Alabama abolished marriage licenses, its laws authorized but did not require county officials to issue a license.
The alternative—that the Due Process Clause requires marriage licenses—would be ludicrous.
The Fourteenth Amendment was ratified in 1868. States did not begin issuing marriage licenses until the early 1900s. Union soldiers did not fight and die in the Civil War to obtain permission from the state to get married. Nor would it have occurred to anyone who voted to ratify the Fourteenth Amendment that “liberty” means seeking government permission to do what God and nature commend.
When states did begin licensing marriages, they did so in part for reasons that violate the Fourteenth Amendment. Some states created marriage license schemes and other vital records in order to improve public health data. But many did so to prevent inter-marriage between the races (known as “miscegenation”) and to facilitate forced sterilization and other eugenics programs.
Proponents of marriage licensing laws were candid about these goals. The influential eugenicist Harry Hamilton Laughlin explained in a 1922 report to the Chicago Municipal Court: “[A]mong the most eugenical of [limitations on marriage] are those relating to certain types of miscegenation and those denying marriage to the insane, feebleminded and other constitutional degenerates or defectives.”
Marriage licenses empower states to control marriage.
Laughlin explained that marriage records are also important to enable eugenicists to identify “individuals personally defective,” who suffer “hereditary degeneracy,” so that they can be denied admission to marriage. “The location of such degeneracy is a difficult task,” he conceded, “but is necessary as a foundation for the intelligent purging of the race.”
Laughlin’s frank disclosure of the racist, social-Darwinian motivations behind marriage licensing laws might startle those who have never studied the history of legal concepts (a group that today includes most lawyers, unfortunately). But some judges and elite lawyers today seem to share his assumption that judges and other government officials have power to define what marriage is and to grant permission to marry.
Laughlin was candid about the implications of this assumption. The power to define marriage and to grant permission to marry is the power to prohibit real marriages between man and woman, which are capable of producing children whom the government deems undesirable.
Laughlin looked forward to the day when governments would not only prevent marriages between different races and by “defectives” but would also “limit marriage to persons who can demonstrate the possession in their family trees of socially valuable mental, physical and temperamental qualities.” Advances in scientific knowledge would, he hoped, eventually bring about “the limitation of marriage to persons of demonstrated natural worth.”
This is not to suggest that those who today advocate a statist conception of marriage do so because they are closet eugenicists. It is to expose the folly of the idea that marriage exists because of state law or the opinions of federal judges.
Marriage pre-existed the first state statutes and the creation of federal courts by several thousand years.
And the Constitution does not require states to attempt to re-engineer marriage for the purposes of dogmatic elites.
Adam J. MacLeod is Professorial Fellow of the Alabama Policy Institute and Professor of Law at Faulkner University, Jones School of Law.
Opinion | There’s still work to be done
Last weekend should have been a shining moment for the state of Alabama, a celebration of the life and efforts of Congressman John Lewis — a true freedom fighter and hero for civil rights and equality in our nation.
It was also an opportunity to reflect on our past and be proud of how far we Alabamians have come. Republicans and Democrats, blacks and whites — all came together to honor and remember the life of Alabama’s courageous and remarkable son.
Well, not all, apparently.
What possible reason could a public official have to attend a 199th birthday party for the founder of the Ku Klux Klan while you’re in the same city as the funeral procession of a venerated civil rights hero who was literally beaten by that same Klan?
It almost seems absurd that we should have to have these conversations here in 2020, but here we are.
It is especially disconcerting to see behavior like this coming from someone so young. Perhaps one could expect this sort of thing from a grandparent or great-grandparent, as they were products of an era that may still hold those problematic, antiquated views — but from a 30-year-old, someone who should exemplify how far we have come as a state? It is worrying, to say the least.
To lack the basic knowledge of history to know that the 199-year-old birthday boy at your party was the founder of the KKK seems incongruent with the career of this young House member, who continues to claim to be a student of Confederate history. Perhaps it’s willful ignorance — it’s tough to tell.
For all the progress our state has made in moving forward from our history of racial divisiveness and strife, incidents like the one involving this young State representative are an important lesson that while it is important for us to remember our past, our priority must be our continued journey to the better, brighter future that awaits us all and that, thanks to Will Dismukes, that journey is clearly not over yet.
Rep. Dismukes has, however, shone a bright light for those of us that thought racism was something we could put behind us. In the words of Congressman John Lewis from our own Edmund Pettus Bridge, “We must use this moment to recommit ourselves to do all we can to finish the work. There’s still work left to be done.”
Opinion | Dr. Wayne Reynolds should resign from the State Board of Education
Dear Dr. Wayne Reynolds, Thank you so very much for apologizing to our awesome Gov. Kay Ivey for your comments made recently. First, let’s talk honestly about the little girl with freckles from Camden, Alabama, who grew up to be our nation’s best governor.
In Alabama, the most trusted and powerful elected officials are Sen. Richard Shelby and Gov. Kay Ivey. The reasons are due to their core values, such as honesty, integrity, trust, accountability, responsibility, and prudent decision-making.
Dr. Reynolds, when I first read your comments concerning Gov. Kay Ivey, I was very upset. Although I’m a 63-year old African-American Republican, those comments hurt me, because I have worked with Gov. Ivey for years to solve problems. I was worried that she may be hurt.
Just for your information, due to the poorly performing state school superintendent, Alabama State Department of Education and State Board of Education, there is a lack of trust from the public.
Gov. Ivey has earned trust from the nation — from the president of the United States, vice president, secretary of defense, chairman of the Joint Chiefs of Staff, secretary of the Air Force and the chief of staff of the Air Force. Truthfully, she is the only person who can get things done. I personally know.
I have binders and documents stacked 6 feet high, concerning numerous issues and solutions Gov. Ivey has provided. Although I send emails to the state superintendent, State Department of Education and the State Board of Education. I can recall no solutions coming from any of these entities. Basically, all I see are people following parliamentary protocols, and raising their hands — but never solving any problems, including no solutions from Dr. Reynolds.
Due to these poor perceptions, many people are wondering if these entities are needed. In my view, since Gov. Ivey seems to be the only one solving all of the problems, and she is out-thinking all of us, why do we need a state school superintendent, State Department of Education or State Board of Education?
Dr. Reynolds, sir, we can’t be observing women’s bodies — looking at their rear ends and commenting on their weight. You claimed you were just making an observation. Sir, we have a mission to accomplish, and we have too much work to do. Education must be fixed. The state of Alabama is dead last in math, and we are at the bottom of all national lists.
Dr. Reynolds, sir, please spend more of your time providing solutions to the numerous problems facing our great state. If you can’t provide solutions, you should respectfully resign instead of discussing foolishness.
I was raised to compliment and help our leaders, especially our female leaders, by placing them on a pedestal and helping them to be successful.
Gov. Ivey has earned the respect from the highest levels of the federal government. She is one of our trusted wingmen, because she has been doing the jobs of the state superintendent, State Department of Education and the State School Board. She doesn’t have time to waste on craziness.
Respectfully, Dr. Reynolds, if you and the other board members resign, you can be easily replaced. We are in last place anyway. The lack of trust, and foolish comments by Dr. Reynolds, surely do not help the State Board of Education, which continues to be ineffective. No one is following you. Folks are running away from you.
Haven’t you recognized this yet? Gov. Ivey is basically doing your job anyway.
Opinion | Alabama’s finest hour
Progress for unity comes in fits and starts, Sunday in Alabama was a giant leap forward and a day that helps define our future.
In describing his constituents, George Wallace used to say that “the people of Alabama are just as cultured, refined and gracious as anyone else in America.” Whether it was true when he said it or not, it made Alabamians stand a little higher and feel better about their circumstances.
If actions speak louder than words, on Sunday, the people Alabama in memorializing John Lewis demonstrated to the nation how truly refined, gracious and cultured we really are. While other parts of the nation were literally on fire and factions seethed with hate, Alabamians provided a stark contrast in honoring Congressman Lewis.
Where 55 years ago State Troopers severely beat John Lewis, on Sunday fully integrated law enforcement officers saluted him and gave him the dignity and respect he earned and deserved. Where once the governor of Alabama prevented Civil Rights marchers from entering the Capitol, on Sunday, Alabama Gov. Kay Ivey, silently stood near Jefferson Davis’s star and with respect and solemnity saluted and welcomed the casket of the 80-year-old congressman.
In other parts of America, where Democrats and Republicans engage in angry debates neither giving nor receiving quarter, in Montgomery, on Sunday, members of both parties came together, transcended partisanship and found common ground in recognizing someone who lived a faithful life in support of peace, justice and mutual understanding.
Indeed, in some cities in our country federal law enforcement officials, without invitation or consent from mayors or governors, were engaged in riot control. At the Capitol in Montgomery, federal officials were not only invited but attended and participated in a memorial service. Federal troops came, not with a show of force, but as an honor guard to drape the mortal remains with an American flag as a pall to lie in state. While Federal marshals were present, they were there to pay their respects and mourn Lewis, not to protect federal property from destruction.
On Sunday, Alabama taught the world what racial harmony looks like; Alabama showed an integrated community embracing a hopeful future. Any outsider saw clearly that Alabama is no longer tied to a past anchored in division, but is a mosaic of people from all walks of life coming together, laying aside their differences and agreeing that when a great man dies, the brightness of his sun setting reveals a glorious legacy for all to pause, reflect and regard in all its majesty.
Sunday was a testament to dreams anticipated and while not yet fulfilled, much closer to reality. The celebration of Lewis in his native Alabama served to acknowledge the legacy of the civil rights movement that still motivates us to judge people not on their externals, but on the internals of kindness reflected in the content of each one’s character.
Progress for unity comes in fits and starts, Sunday in Alabama was a giant leap forward and a day that helps define our future.
Opinion | Prison system issues show “lack of institutional control”
“Our Department of Corrections is not being run in a manner that the people of Alabama should accept, and it is past time to make a change there.”
“Lack of institutional control.”
Growing up as a sports fan in Alabama, and even when I attended the University of Alabama, I became familiar with that phrase as the NCAA brought down sanctions on our beloved athletic programs.
Our athletics programs should hold themselves to higher standards, the champion level programs we’ve come to expect in our state, whether you say “Roll Tide” or “War Eagle.”
Shouldn’t we hold the officials in charge of running and managing Alabama’s prison systems to at least a modicum of the same standards?
When you look at the Department of Justice report released last week detailing the continued horrendous abuses within our state’s prison system, there is no way that you can read the horrors outlined there and not think there’s a lack of institutional control that starts at the very top.
When a prisoner handcuffed to a bed is beaten with a baton while an officer yells “I am the reaper of death, now say my name!”, there is a lack of institutional control.
When an inmate is punched in the face for simply sticking their tongue out, there is a lack of institutional control.
When the officials in charge of our prison system have known about these violations for years and know they are under investigation from the federal government and the abuses still continue to happen, there is a lack of institutional control.
Our prison guards, corrections officers and staff are overworked, underpaid and understaffed, with some of our prisons remaining at half of their full hiring capacity – despite the fact that last year, the Legislature appropriated more than enough money to fill those positions and create new ones to help secure and make safer our correctional institutions. Those positions, both current and new, have not been filled, so our officers and staff at these prisons continue to not get the support they need and deserve due to the inaction of our Alabama Department of Corrections Commissioner.
Not using the ample resources and funding that have been given to you – again, it’s a clear lack of institutional control by the Alabama Department of Corrections’ leadership and something has to change.
We need new leadership who is actually willing to address these problems head-on and make the changes necessary to fix these problems.
We need new leadership who is willing to work with the Legislature and not try to do things behind the scenes of behind closed doors. The entire nation is watching how we handle this, and we need to be as open, as honest and as transparent as we possibly can be.
Our Department of Corrections is not being run in a manner that the people of Alabama should accept, and it is past time to make a change there.
Lack of institutional control – we would not allow and have not tolerated it from a football coach, and we certainly don’t need to continue to tolerate it from appointed government officials who should be working for the people.