The Kim Davis episode, in which Davis refused to perform her job as county clerk in issuing marriage licenses to same-sex couples, raises a fundamental question: Why does marriage licensure exist? In comments below a New Jersey Star-Ledger editorial titled Kim Davis, certified bigot, gets her 15 minutes, I said, quoting the Star-Ledger:
“It would be better if her release would redirect the discussion onto the rule of law.”
And this whole episode begs the question: Why should marriage require a government license at all? I could think of no reason why consenting adults should require government permission to marry, especially considering the racial and eugenics roots of the institution of marriage licensure.
Marriage has many personal meanings, both religious and secular, to different people. But from a legal perspective, it’s a contract. The government’s job is to enforce the terms of contracts and mediate contractual disputes, so long as the terms of contract do not involve the violation of the rights of others (like a mob hit contract). There is no more reason to require a government license for marriage as to require a license to contract with a home remodeler.
Alabama has made a move to end marriage licensure. It’s time to end it across the country. Short of that, the basic issue is not freedom of religion or conscience. It is the proper role of government. As long as the government issues marriage licenses, its officials must not discriminate on the issuance of those licenses. Government has a fundamental duty to protect individual rights, always applying the laws equally to all persons at all times. The personal opinions of individuals in their capacity as government officials is irrelevant to their duties as employees of the government. Davis thus had two choices; set aside her religious convictions and perform her duty as a government official, or quit. Short of that, she should be fired (which in her case means impeachment).
One model for marriage could be the corporate laws. No licensure is needed to start a corporation. One need only file papers with the government, and you’re off.
Gay Marriage and Individual Rights