Massive Resistance Then and Now

The Alabama legislature is considering doing away with marriage licenses.

Alabama is considering a law that would abolish marriage licenses in the state.

The proposed bill, sponsored by Republican state Sen. Greg Albritton, amends Alabama law to remove any requirement that couples obtain marriage licenses or have marriage ceremonies.

Albritton said the law would protect the religious liberty of probate judges and clergy who have moral objections to signing same-sex marriage licenses while also avoiding likely litigation.

“It keeps the state from making the decision of who can and cannot get married,” Albritton said. “It prevents the state from that gatekeeper position.”

Instead, under the proposed bill, couples would file signed affidavits with a probate judge, who would be required to record, but not authorize or condone, marriages. The notarized affidavit would ask each party to declare they were old enough to marry, not currently married, not related, and voluntarily desired to marry. The bill also would remove any requirement that a ceremony take place.

Rather than issue marriage licenses to same-sex couples, in other words, Alabama would do away with marriage licenses altogether—problem solved! I’m reminded of the time Prince Edward County in Virginia responded to the Supreme Court’s requirement that states integrate public education by, well, doing away with public education altogether. I find that many people don’t know about this, which is unfortunate. It’s worth understanding how far people are sometimes willing to go to avoid providing equal rights—so far that they would abolish the right altogether rather than grant it to the objectionable group.

To start with, notice this:

After Virginia’s school-closing law was ruled unconstitutional in January 1959, the General Assembly repealed the compulsory school attendance law and made the operation of public schools a local option for the state’s counties and cities.

After Brown v. Board of Education, the Virginia legislature passed a law that would automatically close any school that attempted to integrate. And they backed this law up with force—several schools that attempted to integrate in September 1958 were ceased and closed. However, this law was subsequently struck down in the courts. The Virginia legislature responded by repealing the state’s compulsory attendance law and leaving whether to have a public school system at all up to the county or city.

Schools that had been closed in Front Royal, Norfolk, and Charlottesville reopened because citizens there preferred integrated schools to none at all. It was not so in Prince Edward County. Ordered on May 1, 1959, to integrate its schools, the county instead closed its entire public school system.

Yeah, that happened.

The Prince Edward Foundation created a series of private schools to educate the county’s white children. These schools were supported by tuition grants from the state and tax credits from the county.

Did I neglect to mention that the Virginia legislature also passed a law creating tuition grants, i.e. vouchers? Because of course they did. These tuition grants were available only for children in integrated districts whose parents objected to them attending integrated schools, or to students in school districts that had voluntarily closed rather than integrated, like Prince Edward County.

No provision was made for educating the county’s black children. Some got schooling with relatives in nearby communities or at makeshift schools in church basements. Others were educated out of state by groups such as the Society of Friends. In 1963–64, the Prince Edward Free School picked up some of the slack. But some pupils missed part or all of their education for five years.

In other words: The county closed the public schools, and then created a system of private segregation academies funded with public money, while doing nothing at all for African American children, who were forced to find a piecemeal education, or (in too many cases) receive none at all.

…not until 1964, when the U.S. Supreme Court outlawed Virginia’s tuition grants to private education, did Prince Edward County reopen its schools, on an integrated basis.

That’s right—the county’s public school system remained shut down for five years. And this wasn’t all that long ago—anyone 60 or older who grew up in Prince Edward County will remember it, because they either attended a state-funded segregationist academy, or, if they were African American, pieced their education together elsewhere. They didn’t attend public schools, because there weren’t any.

During the civil rights movements, policies like this were referred to as “massive resistance.” Alabama’s attempt to do away with marriage licenses rather than grant them to same-sex couples should be given the same label.

Lest you think they’re not serious, there are eight Alabama counties that are still refusing to issue same-sex couples marriage licenses, and the bill to end the issuance of marriage licenses altogether recently passed the state senate 23-3 and is headed for the state’s house judiciary committee. I’m sure the Alabama legislature would argue that this solution is fair and neutral and affects everyone equally—but then I’m pretty sure Prince Edward County said the same thing.

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