Alabama judges use segregation-era law to avoid gay marriage

MONTGOMERY, Ala. — As Alabama’s all-white Legislature tried to preserve racial segregation and worried about the possibility of mixed-race marriages in 1961, lawmakers rewrote state law to make it optional for counties to issue marriage licenses.

Now, some judges who oppose same-sex marriage are using the long-forgotten amendment to get out of the marriage business altogether rather than risk issuing even one wedding license to gays or lesbians.

In at least nine of Alabama’s 67 counties, judges have quit issuing any marriage licenses since the US Supreme Court legalized same-sex unions in June.

While the precise reason that lawmakers gave for making the 1961 change has been lost to time, the 54-year-old provision says probate courts ‘‘may’’ issue rather than ‘‘shall’’ issue wedding licenses.


Nick Williams, a Baptist minister who also serves as probate judge in Washington County, is among those who have left the marriage license business. He says issuing a license for a same-sex union would violate his Christian beliefs.

‘‘It is a religious freedom issue, but more than that I believe it is a constitutional issue,’’ said Williams, who last month cited the arrest of Kentucky county clerk Kim Davis in asking the Alabama Supreme Court to declare that officials don’t have to allow same-sex marriage if doing so violates their religious beliefs.

Judges in three adjoining counties stopped issuing licenses for similar reasons, creating a region in southwestern Alabama where marriage licenses aren’t available for 78,000 people. As a result, Bo Keahey and Hannah Detlefsen will have to spend nearly two hours on the road traveling to and from Monroe County before their November wedding because their native Clarke County has quit issuing licenses.

‘‘I pay taxes here, and it’s kind of ridiculous that I can’t get a license here,’’ said Keahey, an attorney.

In May 1961, with then-Governor John Patterson pushing to maintain segregated public schools, two Alabama legislators introduced a bill to revamp the state’s marriage law.


Under a statute that went back decades, couples had to get marriage licenses in the county where the woman lived or where they planned to wed. The law had the effect of requiring each county to issue wedding licenses.

But that changed under the bill, according to the Alabama Legislative Reference Service, which researches laws and drafts legislation.

The new law included this line: ‘‘Marriage licenses may be issued by the judges of probate of the several counties.’’

Since the US Supreme Court’s June ruling, some same-sex marriage opponents have used that word ‘‘may’’ to avoid issuing marriage licenses. So far, no one has sued them.