Post
by Seth » Sun Sep 27, 2015 8:07 am
So here's an interesting and related question: Why is the State allowed to "license" marriage at all in the US? You see, the power to license something inherently includes the power to deny that license, because that's what "license" means in law. But marriage is, and always has been, a religious, spiritual and/or metaphysical bonding between two individuals. According to the US Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
But licensing of marriage has been going on here since before the US became the US, and there were marriage licensing laws in Colonial times.
But why did such laws exist when, at the common law (which is still recognized in many US states, including Colorado) two people become "married" when they publicly hold themselves out to be married. Simply by saying to your friends "Me and her are married" you are, in fact and law, married, and get to enjoy all the perks and privileges, and all the responsibilities that accrue to being married. Unfortunately for common-law marriages, there is no such thing as a common-law DIVORCE, divorce being a fairly recent state-created legal process, so couples that hold themselves out to be married...say by signing a motel register as "Mr. and Mrs. Smith" in order to get a room to canoodle, have just gotten married in law.
So back to why marriage license laws exist here. It's about racism. It's pretty much all and only about racism. Nearly every state licensing law (and Colonial ordinances before the founding of the US) were imposed in order to prevent miscegenation, which is to say interracial marriages. Whites were explicitly forbidden from marrying blacks and vice versa and the penalties could be quite severe. These laws were upheld for a long, long time and were only overturned in the 1960s in the "Loving v. Virginia" case where the Supreme Court held that marriage is a constitutionally protected civil right.
This brings us back to marriage licenses. If, as the SCOTUS says, marriage (gay, interracial, uniracial, intersexual, monosexual or polygamous) is a fundamental civil right, then the question is by what legal reasoning do states presume to license marriages at all? The exercise of civil rights are not "licenseable" because the power to license is the power to deny the license (for racial or sexual reasons for example), and the state has no authority to deny the exercise of the civil right of marriage.
Moreover, since marriage is, and has always been a religious, spiritual, metaphysical bonding, presuming to license (approve of) one sort of marriage but deny (disapprove of) another sort of marriage (like gay marriage or marriages between atheists and Catholics) is a direct violation of the First Amendment proscription against making law infringing on the free exercise of religion.
This line of attack on the whole concept of marriage licenses simply takes marriage, of any two people, completely out of the purview and authority of the state to approve or deny because it is an inherently "religious" exercise (which is a good reason for Atheism to be a religion) which NO person of religion, Christian, Muslim, Buddhist, Tolerist™, Atheist or Pantheist, should tolerate for even one second.
If we simply remove, or refuse to obey the dictates of the State that marriage be licensed, and by "we" I mean EVERYONE, then the issue of who may marry whom becomes moot, and the only real concern, which is the extension of public benefits to married persons that are denied to non-married persons, becomes the last remaining hurdle to true equality in domestic relationships.
One thing that's rarely discussed is WHY gays want to be "married" in law. Do they want to be married because they want to enjoy a metaphysical bonding and relationship with their partner, or do they want to be afforded the perks and protections of the statutes as they apply to married persons (but not non-married persons)?
I'd say it's both. But the issue of marriage itself is completely off the table and has been since the 1965 Loving v. Virginia case (IMHO). I say that if you make an agreement with another person to be "married" then you are married, as per the common law, and you can hold yourself out as being married because you are, regardless of your religion, beliefs or sexual orientation. What's lacking is the imprimus of the State "license" that is the document that entitles you to the legal (not religious or metaphysical) aspects of being married.
There's yet another line of attack that factors in to all this, and that is the Equal Protection and Due Process clauses of the Constitution that make it a violation for the State to offer something to one person that it does not offer to another person. The excuse for giving licensed married couples benefits that are not available to single persons even if they are living together in exactly the same manner as a "licensed" married couple has general had to do with "protecting the stability of the family" and providing benefits for children by encouraging licensed marriages. This of course is just nonsense intended to get around the actual root of marriage licensing, which was to FORBID particular legal marriages for reasons of racism. But the Supreme Court has long held that the regulation of marriage is a STATE'S RIGHTS issue and that the federal government has NEVER had any Constitutional authority to regulate marriage AT ALL. This is why racist anti-miscegenation marriage licensing laws persisted in the slave states long after the Civil War was over and only recently (1965) were all such laws struck down as unconstitutional because they violated federal anti-discrimination laws and the 14th Amendment!
It seems to me that the Court has taken a half-measure even in it's most recent holding that bans on gay marriage are unconstitutional. What it should hold is that all federal or state laws that purport to license marriage or provide benefits to licensed married persons not likewise provided to similarly-situated non-married persons are unconstitutional.
Dealing with the legal aspects of a domestic relationship (the preferred new term that government should use rather than "marriage") should be a matter of regulating conduct within such relationships to protect both parties and, particularly, any children that are involved and being the public records registrar for "contracts of domestic relationship" that would be negotiated, agreed upon and signed by the parties to the relationship if they choose to do so. Absent such a contract, only a basic state-mandated domestic partnership contract would automatically take effect if and when children become involved, for THEIR protection, under the general police power of the State to act as guardian ad litem for the children.
The State would have no role whatsoever in allowing or disallowing any sort of domestic relationship contract (excepting perhaps "unconscionable" provisions contrary to law) between any two or more persons. It would merely record the contract and the courts would adjudicated disputes under the standard provisions of civil contract law.
This setup should fix the current dispute and every possible future dispute about who can or can not be "married." If you want to be married, and you agree to be married, then you are married...for what it's worth. That's what people do anyway, even when the law denies them a license, so we should simply acknowledge that love cannot be denied and get government the hell out of the whole matter.
Which means that this particular lady would not have to issue any licenses to gays because no licenses for anyone would be authorized in the first place. That way gays get what they want; marriage equality and equality of benefits and the Clerk gets what she wants; she doesn't have to issue licenses to anybody for them to be married, all she has to do is stamp the contract and put it in the public records along with all the other ministerial recording duties she has.
"Seth is Grandmaster Zen Troll who trains his victims to troll themselves every time they think of him" Robert_S
"All that is required for the triumph of evil is that good men do nothing." Edmund Burke
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