Alabama’s Sanctity of Marriage Amendment is a 2006 amendment to the state constitution that defined marriage as between a man and a woman and barred Alabama from issuing or recognizing same-sex marriages. It is still in the Alabama Constitution, but it has no legal force. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges made it unenforceable, and the federal Respect for Marriage Act of 2022 added a second layer of protection. Same-sex couples marry in Alabama today under the same process as everyone else.
What the Amendment Says
In June 2006, Alabama voters approved Constitutional Amendment 774 by a wide margin. It added Section 36.03 to the Alabama Constitution, defining marriage as “a sacred covenant, solemnized between a man and a woman.” The amendment declared any marriage between individuals of the same sex invalid in Alabama and barred the state from issuing marriage licenses to same-sex couples.1Legal Information Institute. Alabama Constitution
The amendment reached beyond in-state ceremonies. The legislature reinforced it in statute at Alabama Code Section 30-1-19, which says the state “shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction.”2Alabama Legislature. Alabama Code Title 30 Chapter 1 Section 30-1-19 – Marriage, Recognition Thereof, Between Persons of the Same Sex Prohibited A same-sex couple married in Massachusetts or New York would, under this language, be treated by Alabama as though the marriage had never happened.
Neither Section 36.03 nor Code Section 30-1-19 has been repealed. Both remain on the books in their original form.1Legal Information Institute. Alabama Constitution
Why It No Longer Has Force
The first ruling against Alabama’s ban came on January 23, 2015. U.S. District Judge Callie V.S. Granade held in Searcy v. Strange that the ban was unconstitutional, finding that Alabama had failed to show “any rational, much less compelling,” link between prohibiting same-sex marriage and the state’s asserted interest in promoting biological family structures. She issued no stay, so same-sex couples could begin applying for licenses immediately.
Five months later, on June 26, 2015, the U.S. Supreme Court settled the question nationally. In Obergefell v. Hodges, the Court held that the Fourteenth Amendment requires every state both to license marriages between two people of the same sex and to recognize such marriages lawfully performed in other states.3Justia. Obergefell v. Hodges, 576 U.S. 644 (2015) From that day forward, Section 36.03 and Code Section 30-1-19 have been dead letters. The words are still printed, but they cannot be enforced.
Alabama’s Resistance and the End of Marriage Licenses
Alabama did not accept the change quietly. After Judge Granade’s ruling but before Obergefell, then-Chief Justice Roy Moore of the Alabama Supreme Court ordered the state’s 68 probate judges not to issue marriage licenses to same-sex couples. Several complied. Some stopped issuing licenses to anyone at all rather than issue them to same-sex couples. In January 2016, months after Obergefell, Moore issued another order declaring the state court’s earlier ban “in full force and effect.” The Alabama Court of the Judiciary suspended him from office without pay for the remainder of his term over that defiance.
The standoff reshaped how marriage works in the state. In 2019, the Alabama Legislature passed Act 2019-340, eliminating marriage licenses entirely. Since August 29, 2019, no couple applies for a license or appears before a judge. Both spouses complete an Alabama Marriage Certificate form, have their signatures notarized, and file it with any county probate court within 30 days for recording. A wedding ceremony is optional. The probate court’s role is ministerial: if the form is properly completed, it gets recorded. That change removed the individual discretion that had allowed some judges to refuse service to same-sex couples.
The process is identical for every couple, regardless of the spouses’ sex. The effective date of the marriage is the later of the two signature dates, provided the form is recorded within 30 days.
The Federal Backstop: Respect for Marriage Act
Congress added a federal layer of protection in December 2022 with the Respect for Marriage Act, which repealed the Defense of Marriage Act. The new statute does two things that matter for Alabama. It defines “marriage” for federal purposes as a union between two individuals that was valid in the state where entered.4Office of the Law Revision Counsel. 28 U.S. Code 1738C – Certain Acts, Records, and Proceedings and the Right to Marry And it prohibits any person acting under state law from denying full faith and credit to a marriage based on the sex, race, ethnicity, or national origin of the spouses.
The Act also gives affected individuals a private right of action. Someone denied recognition of a valid same-sex marriage by a state official can sue in federal court for declaratory and injunctive relief, and the U.S. Attorney General can bring enforcement actions.4Office of the Law Revision Counsel. 28 U.S. Code 1738C – Certain Acts, Records, and Proceedings and the Right to Marry
What Happens If Obergefell Is Overturned
Because the Sanctity of Marriage Amendment was never repealed, it functions as a trigger law. If Obergefell were overturned, Section 36.03 would immediately reassert itself as enforceable state law, and Alabama could stop accepting new same-sex marriage filings.
The Respect for Marriage Act would still require Alabama to recognize same-sex marriages validly performed in states that continued to allow them. It does not, however, independently require a state to issue new marriage certificates to same-sex couples in that scenario.4Office of the Law Revision Counsel. 28 U.S. Code 1738C – Certain Acts, Records, and Proceedings and the Right to Marry Couples already married would keep their legal status. Access to new marriages inside Alabama would depend on whether the legislature repealed the amendment or the state courts read it narrowly.
For now, the amendment sits in the constitution as text without effect. Same-sex marriage is fully legal in Alabama, the certificate process is the same for every couple, and both federal case law and federal statute stand between Section 36.03 and any renewed enforcement.