Friday, June 10, 2016

Why Marriage Lincensure?

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.

Related Reading:

Gay Marriage and Individual Rights


Steve Jackson said...

I'd point out that marriage isn't a contract. Once you get married the law imposes all sorts of benefits and burdens beyond which you might have agreed. And unlike a contract, you need to get government action to dissolve the contract. Actually, marriage is closer to corporation law. Corporation law imposes rules on matters (shareholder rights for example) that you can't contract away.

What if we didn't have a marriage. 2 people (or 3?) get divorced. What about inheritance? What about child custody? Of course these could all be contracted for, but it's probably easier to have one set of rules. And there are certain aspects of marriage where private contracts couldn't superside basic legal obligations. Could I sign a contract with my wife that I have no obligation to support any children from the marriage?

Mike Kevitt said...

All kinds of human relations have countless meanings, etc., but from the legal perspective, they're all contracts, subject to contract law. I think Steve Jackson's complexities are irrelevant to that fact. His complexities are relevant to the fact that, under today's legislation (I won't call it law) marriage isn't just a contract, but something else or part of something else. It's not, not from the legal perspective. It's just a contract. Under today's legislation, marriage, and divorce, is subject to endless hanky-pank (sp? I don't care, I just respelled it.)which changes arbitrarily thru years and generations. That's the very purpose of most legislation of today and for over 100 years now, hanky-pank, not law and order and individual rights.

Michael A. LaFerrara said...

“Actually, marriage is closer to corporation law. Corporation law imposes rules on matters (shareholder rights for example) that you can't contract away.”

The government’s job is to protect individual rights, including the right to freedom of contract (a form of freedom of association). We could debate the rules governing corporations. But in my view the rules are simply a streamlined way of protecting the contractual process. You don’t have to do business as a corporation. But if you do, your customers are agreeing to the terms of contract, including the incorporation rules. Incorporation rules simply alleviate the need to spell out every detail in every contract.

The same could be true with marriage. I agree with Mike. From the legal perspective, marriage should be considered a contract.