Liberty in America
columnist: rtbohan

Topic: Government Regulation
About This "Sanctity of Marriage" Thing

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The State has the power to do many things, but it has not the power to "sanctify" anything.

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by rtbohan
(libertarian)
Saturday, February 16, 2008

For the past several years, since Massachusetts allowed the issuance of marriage licences to gay couples, there has been a great rush among state and national politicians to call for laws and constitutional amendments to "protect the sanctity of the institution of marriage". I am a proponent and a practitioner of marriage and I am also in favor (within limits) of sanctity. With regard to marriage licences, I am at least struck by the position of Aaron Russo, when he sought the Libertarian Party nomination for President four years ago: "What exactly are people able to do with a marriage licence that they cannot do without one?" The problem with this statement is that, unfortunately, there are  some legal things  people can do only with a legal marriage(such as paying income tax returns on a Joint return). And the state plays a role in allowing these things. There are also employee benefits for which some employers require a legally recognized marriage. It is the business of the state todefine legality, and I will consider this below. But the argument that a marriage licence protects the sanctity pf mariage implies that the state is sanctifying marriage, an absurd position.

I felt compelled to address this question now that politicians in South Carolina are seeking a law to prohibit marriage between homosexual couples to protect the sanctity of marriage. South Carolina is one of the few states, maybe the only one, which still recognizes common law marriage. This means that a couple who have lived together a certain length of time without applying for a marriage licence or going through any ceremony are legally married if they have told people they are. What is sanctified about that? Of course the question usually arises when the attraction which drew the couple together has faded, and one wants a divorce (and alimony) even though there has been no legal marriage to dissolve.

Taking out a marriage licence does not make a couple married.  The marriage must be created by the couple entering into a contract before a specified authority and with additional witnesses.  In South Carolina, a marriage may be performed by a Probate judge; in most states a Justice of the Peace may do so; in Maine any lawyer may officiate. No matter how high a regard we may have for Judges and Justices and lawyers, nobody claims that they are capable of sanctifying anything.  Some would say that a marriage is sanctified by the love of the couple, and this probably ought to be true of common law marriages, and marriages performed by civil officialsas well as church weddings.  But love may exist between a gay couple, too, as even religious conservatives may acknowledge.   So this is not what they mean by sanctity.

All states, as far as I know, authorize clergymen of all religions to perform legally binding marriage ceremonies. But under the first amendment, they do not require a church service or a clergymen.  The various religious denominations, by performing the marriage, are asking divine blessiings on the union.  The marriage is therefore sanctified  in the eyes of the church.  Since this is a church matter, each denomination sets its own regulations for sanctifying the marriage.  Some allow their clergymen to perform marriages for anyone who asks and is willing to pay the fee.  Others will marry only a couple in which both parties are members of the church.  Others will perform marriages for mixed religion couples, but some of these require promises from the non-congregant as to the baptism and religious education of any children.  This is certainly the right of the churches and the clergymen, and this is their business.  States certainly have the right to provide marriage licences to any couples they wish, churches will still have the right not to sanctify such marriages.  But this rule does not prevent civil officials from performing the ceremony for those with a valid licence and the state should not attempt to do so.

What is required to receive a marriage licence in any state is in the hands of the state.  It is not a federal question and ought not to be one.  If a particular state restricts  marriage licences to two person of the opposite sex, this merely lowers fees received by the state, since gay couples are free to get a licence and marry in another state.  In South Carolina, the argument is made by those who oppose gay marriage that the state will not recognize a marriage between two a gay couple even if they have been married in a state which does allow such marriages.  This is pretty clearly a violation of the full faith and credit clause of the United States constitution.  Each state sets its own age of legal consent for marriage.  At least until recently, Georgia set the age of consent at twelve years of age.  The people of other states may have been appalled at the Georgia law, but they never sought to invalidate the marriage of a couple who moved into the state on the grounds that one of the parties was too young to be legally married.  In the case of South Carolina, there is court precedent for the view that marriage is covered by the full faith and credit cleause.  At the time that South Carolina law still refused the right to marry to racially mixed couples, a charge of bigamy was brought against a South Carolina resident who had married a second wife without divorcing the first.  He argued in his defence that he could not be found guilty because his first marriage, to a black woman, was not valid under South Carolina law.  The court refused to allow that argument and found him guilty.

I suspect, as I said above, that gay couples are not pressing for the right to be legally married because they believe the state can sanctify their union.  They want the state to legalize this union.  They are not activated by a desire to emulate or to shock the conservatives.  They are motivated by the desire to share some of the benefits that the state confers on heterosexul couples.  One of these, already mentioned, is the right to list themselves as a married couple filing jointly on their income tax returns, and take the deductions allowed to this category of tax payers.  Since determining or defining marriage is not one of the rights delegated to the federal government, they ought to be able to do this if they are have been legally married in any of the states, that is, not only been issued a licence but gone through a lawful ritual ratifying it.  (The libertarian answer of course, would be to abolish the income tax, but this would apply in the short run).

There are other legal rights as well.  One of the reasons the state asserts a right to regulate marriage is that if someone dies intestate, the  probate court must determine the distribution of assets.  A legally married gay couple should have their legal married status recognized by the probate courts both for distributing the assets and for any inheritance tax provisions relating to spouses.

There are also  private employer/employee relationships in which they are interested.  Some employers provide insurance coverage to spouses of their workers as well as the workers.  This should be determined between the employer and the employee, or where the beusiness is bound by a union contract, in negotiations between the union and the business.

No state can be required to issue marriage licences to a gay couple.  No state can be prohibited from doing so.  No state should interfere in any civil contract unless the contract itself is in violation of state or federal law.  No state can invalidate a valid marriage recognized ty another state.

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©2008 rtbohan, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Saturday, February 16, 2008
Last modified: Tuesday, March 18, 2008

The views expressed in this article are those of rtbohan only and do not represent the views of Nolan Chart, LLC or its affiliates. rtbohan is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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