The Southern Poverty Law Center filed a class action lawsuit Wednesday charging that probate judges in most Alabama counties are wrongly denying illegal immigrants and U.S. citizens a marriage license.

The suit was filed in U.S. District Court in Montgomery against Montgomery Probate Judge Reese McKinney, but law center Legal Director Mary Bauer and co-counsel Freddy Rubio said the issue applies to 53 Alabama counties.

Probate judges in those 53 counties require all marriage license applicants to have a Social Security card to verify identity, a requirement that is a violation of the U.S. constitution, Bauer said.

The suit also challenges the probate policies requiring non-citizens to provide proof of legal residence by showing a visa, green card or other immigration document.

Colbert, Franklin and Lauderdale counties are included in the list of counties requiring the documents before issuing a marriage license.

Jefferson County is among the counties that issue a marriage license without the documentation.

The lawsuit is separate from the law center’s challenge of Alabama’s new law cracking down on illegal immigrants.

The question of whether a probate judge should require such documentation for illegal immigrants came up at the end of a hotly contested 2006 race for Alabama Senate, District 3.

Toward the end of the race between outgoing Morgan County Probate Judge Bobby Day, a Democrat, and Arthur Orr, R-Decatur, some anti-Day forces criticized him for issuing marriage licenses to illegal immigrants.

At the time, Day said he was following federal law that does not require the proof and state law that only required him to verify the applicants were old enough to get married.

Orr, who won that election and another for a second term in 2010, said he had nothing to do with the issue that came up over illegal immigrants and marriage licenses during the 2006 campaign.

But in January 2007, Orr sponsored legislation to require proof that “people are who they say they are” when applying for a marriage license. The bill failed.

In a story published in The Decatur Daily that month, Orr said the proof of identity issue that was brought up during the campaign made him think.

“A marriage license is a first step toward getting legitimate within the system,” Orr said at the time.

He said, in an age of identity theft and homeland security issues, people should be concerned about who is getting government documents.

The law center’s suit against McKinney was filed on behalf of U.S. citizen Linda Smith and an undocumented immigrant listed as John Doe, a couple that have lived together for nine years and want to marry. Doe works to support Smith and her children and grandchild, but the couple cannot obtain a marriage license.

“This arbitrary policy attacks one of the most fundamental rights in this country — the right to marry,” Bauer said. “There is no reason why anyone should have to produce their ‘papers’ before they say, ‘I do.’ ”

The lawsuit cites an Alabama attorney general’s opinion from 2004 saying a marriage license can be issued to an applicant who is not a U.S. citizen. The suit also cites a 2008 attorney general’s opinion a Social Security number is not required to receive a marriage license.

Rubio said, even with the attorney general’s opinions, the number of probate judges requiring the documents of marriage license applicants is growing.

“A few years ago, it was only a handful; now it is most of them,” Rubio said.

Bauer said the suit is not directly a result of Alabama’s new immigration law. The new law specifically states that it does not require the documentation for obtaining a marriage license.

The lawsuit states: “The couple desires to express their love for and commitment to one another by getting married and obtaining the economic, emotional and psychological benefits of marriage. But solely because Plaintiff Doe is undocumented, he and his fiancee cannot exercise their fundamental right to marry, a right that is guaranteed under the United States Constitution to all persons regardless of immigration status.”

The lawsuit asks the court to declare the policy void and to enjoin the counties from enforcing it.

M.J. Ellington can be reached at mjellington@TimesDaily.com.