Marriage in America

I have not posted much of anything about the topic of gay marriage, because I have believed all along that the argument is all wrong. It is not whether the government should allow or disallow gay marriages, but what business is it of theirs to begin with. The state should act as a guarantor of freely entered contracts, marriage is a contract. Other than protecting the contractual rights of the parties involved, I have no idea what other interest the state has in the matter. To that end, I think we are being led down the right path by, of all places: Alabama, not typically the well-spring of libertarian thought:

Alabama Senate Passes Bill to Effectively Nullify All Sides on Marriage

MONTGOMERY, Ala. (May 23, 2015) – This week, the Alabama state Senate passed a bill that would end the practice of licensing marriages in the state, effectively nullifying both major sides of the contentious national debate over government-sanctioned marriage.

Introduced by Sen. Greg Albritton (R-Bay Minette), Senate Bill 377 (SB377) would end state issued marriage licenses, while providing marriage contracts as an alternative. It passed through the Alabama state Senate by a 22-3 margin on May 19.

“When you invite the state into those matters of personal or religious import, it creates difficulties,” Sen. Albritton said about his bill in April. “Go back long, long ago in a galaxy far, far away. Early twentieth century, if you go back and look and try to find marriage licenses for your grandparents or great grandparents, you won’t find it. What you will find instead is where people have come in and recorded when a marriage has occurred.”

The bill would replace all references to marriages “licenses” in state law with “contracts.” The legislation would not invalidate any marriage licenses issued prior to the bill being passed.

The contract shall be filed in the office of the judge of probate in each county and shall constitute a legal record of the marriage. A copy of the contract shall be transmitted to the Office of Vital Statistics of the Department of Public Health and made a part of its record…

Effective July 1, 2015, any requirement to obtain a marriage license issued by the judge of probate is abolished and repealed.

PRACTICAL EFFECT

SB377 would accomplish two things.

First, it would render void the edicts of federal judges that have overturned state laws defining marriage. The founding generation never envisioned unelected judges issuing ex cathedra pronouncements regarding the definition of social institutions like marriage and the Constitution delegates the federal judiciary no authority to meddle in the issue. Marriage is a realm clearly left to the state and the people..

Second, the bill would get the state government out of defining marriage entirely as well, ending the squabble between factions that seek to harness the power of the state, thereby taking the burden off government officials who may be torn between what is legally required of them and their religious convictions.

The intent or motives behind this bill are a moot point. By removing the state from the equation, no one can force another to accept their marriage, nor can they force another to reject that person’s own beliefs regarding an institution older than government.

“Licenses are used as a way to stop people from doing things,” said Michael Boldin of the Tenth Amendment Center. “My personal relationship should not be subject to government permission.”

HISTORICAL BACKDROP

As a 2007 New York Times op/ed points out, for centuries marriage was a private affair.

“For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In fact, the use of state marriage licenses for many years was a way of preventing people from entering into interracial marriages. Later, the NYT story recounts, the licenses became necessary in order to subsidize the welfare state.

“The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.”

Something that is rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a citizen requires the permission of their government before they can get married. A person cannot drive a vehicle, aside from limited circumstances, without a license. A person cannot practice law without a license, nor can they engage in medical care.

Put another way, marriage is not a right, or a religious institution, but a privilege the state grants us if we meet the conditions put upon us.

Consider this: In the same way a driver can lose their license if they break certain traffic laws, a man or woman, theoretically, could one day find their marriage license revoked for breaking certain “marriage” rules, whether it pertains to child rearing, or their religious and political convictions.

Christopher Wesley, an associated scholar at the Mises Institute, wrote that “marriage is most endangered when it rests in the coercive hands of the State.”

NEXT UP

SB377 would still allow for a formal marriage to be contracted in front of at least two adults, by an Alabama judge or retired judge, or an ordained minister, with limited exceptions. Alternatively, applicants could simply file an affidavit of common law marriage with the court clerk signed by both parties.

Though the bill does not define marriage specifically, the certificate only allows for two parties and forbids them from marrying if they are already married.

SB377 now moves to the state House, where it must pass through the House Judiciary Committee before it can receive a vote on the House floor.