More controversy spurs LA ending marriage regulation

Louisiana’s policy-makers should understand that a law designed to discourage illegal bigamous situations that also has made it too difficult for some non-citizens to apply for marriage licenses does not need alteration but, because of larger judicial trends, needs excision.

Act 436 of 2015 changed standards for issuance of marriage licenses, in part impacting those applied for by non-citizens. It continued to require those not born in the U.S. to produce additional documentation that included a birth certificate, but removed a passage that permitted almost any state or local judge to waive this criterion. Its sponsor, state Rep. Valarie Hodges, noted that without that documentation – useful for where applicants did not have a Social Security number – this made more likely the possibility that a person already married elsewhere could not be identified as such.

But while the law could verify someone illegally in the country tried to obtain a license, it also made the process impossible for some legal resident and nonresident aliens in the U.S. A number of plausible situations could prevent these individuals from obtaining a certified birth certificate, such as having fled from war that additionally could cripple the capacity of their country of birth from sending verification of their natality – to the point of making the law possibly conflict with a 2007 federal court ruling that allows those who cannot prove U.S. citizenship or legal immigrant status to marry.

Accepting that court decision as the final word, this could invalidate the entire portion of the law that has the effect of encouraging obtaining legal status to be in the country, as it requires a non-citizen to submit additionally a current visa and I-94 form that would demonstrate legal presence in the country. This would disappoint those who also saw the law as a method to discourage illegal immigration or marriage fraud – the gaining of citizenship by marrying a citizen with the intent of dissolving the marriage shortly thereafter.

That gradual creep of federal control over how states can regulate marriage – culminating in the logic-impaired, emotionally-driven Obergefell v. Hodges U.S. Supreme Court decision that decoupled the regulation of marriage from the achievement of important state objectives – reminds that any state marriage regulation, much less that designed to capture information that could determine individuals’ legal status or whether they remain in a married state elsewhere, has little use in this new environment. As such, this provides another reason why states should remove their oversight from the institution entirely.

A suggested change to moot the unconstitutionality argument as well as to enable legal alien residents and visitors to marry surfaced with this past session’s HB 968 by Hodges, which would restore the ability of a judicial official to waive the birth certificate requirement, she actually shelved after it overcame its initial legislative hurdle. Yet with the rapidly diminishing role of states in regulating marriage logically expected to disappear entirely when extending the rationale of Obergefell, Louisiana simply should exit the business of state regulation of marriage at all. End, don’t mend, this law and anything related to it.