License to thrill

Have you been following the story of Kim Davis? She is the county clerk for Rowan County, Kentucky, and she gained considerable fame (notoriety?) in 2015 for refusing to provide a marriage license for two gay men who wished to be married. She spent a week in jail for her “contempt” of federal judge David Bunning’s order. Her attorneys worked out a deal whereby her deputies could issue in the licenses to gay couples in the name of the judge, but she steadfastly refused to sign any or allow her name to be used. She cannot be fired except by the voters of Rowan County. She became a hero to the Christian right, but her foes sarcastically pointed out that she was no poster girl for traditional marriage, since she had been married four times (divorced three). Ironies abound—Davis originally won election as a Democrat, the party that generally defends gay rights. Another oddity is that one of the gay men who initially brought suit against her, David Ermold, announced his intention to run against her this year. She has decided to run as a Republican this time.

One of the interesting questions in this hoo-ha: Is the right to marry derived from the government? Or is it derived from the two individuals? Or is it derived from God? In a sense it is all three (though only Christians would acknowledge the third). Christians know where marriage came from—God was so pleased with his brilliant invention that he actually built it into the sixth day of creation. Christians also study their Bibles to grow in their understanding of how God designed this relationship to work and how he brings benefits to individuals and society through it. Clearly also there would be no marriage without the conscious and public choice of two people who wish to bind themselves together.

It’s interesting to ponder that governmental authority is a latecomer in asserting the right to confer marriage. For many centuries marriages were either pledged in churches, private ceremonies, or just the result of years of common law cohabitation. Governments saw it to their advantage to record information about marriages for census and genealogical reasons. It is only within the last two centuries that the idea took hold that individuals needed to petition their government for the right to marry. You must apply for the license beforehand; in my county you are charged the extortionate rate of $110 for that one piece of paper. So what’s your view? Does the state own the marriage franchise? Is it alone the dispenser of the right to marry?

For most of the first century of our country’s existence, state governments contented themselves with merely registering existing marriages. But in the middle of the 19th century, states began to assert their authority over the formation of all marriages. The prime mover for that change? Terror over miscegenation, i.e., marriages of mixed race. Thirty-eight states passed laws condemning it and attached a typical penalty of ten years in a state prison. For obvious reasons the states of the Old South were the most intense about criminalizing interracial marriages and were the last to rescind those laws (Alabama not until the year 2000). Over the years states judged it in the interests of their citizens to add further rules: 1) Age limitations. You must be 18 to get a license; written consent of both parents is needed if the applicant is 16 or 17, and no licenses are provided at all for ages younger than that. 2) Public health. States insisted on a blood test, hoping in this way to retard the transmission of syphilis and rubella (German measles). 3) Prohibition of bigamy. The federal government fought a decades-long battle with the Mormon church over their members’ determination to have multiple wives. The Mormons reluctantly yielded in order to gain statehood for Utah. 4) Mandatory six-month waiting period for widows and widowers petitioning to remarry (presumably this would dampen the desire to kill one’s spouse). In 1923 the federal government passed the Uniform Marriage and License Act directing all states to assert its right to license all marriages.

But things keep changing. In the year that I was ordained, only pastors and judges could perform marriages. Along with my ordination license, I needed to acquire a document from the county courthouse authorizing me to perform marriages. Nowadays anybody can “preside” over a marriage. In fact, Wisconsin state law today actually allows couples to “self-marry.” The rules mandating blood tests are gone. The rules about interracial marriage in 38 states were struck down by the U.S. Supreme Court’s Loving v. Virginia decision in 1967. The year 2015 brought the landmark Obergefell v. Hodges Supreme Court case that found in the constitution a right for same-sex couples to obtain a marriage license, and this ruling struck down the many state laws permitting heterosexual marriage only.

Still, the argument remains that the state is overreaching to insist that it alone owns and controls marriage. The Oklahoma state House of Representatives passed a bill in 2015 doing away with marriage licenses, requiring only notification from couples. No word on whether it has become state law yet. Libertarians of all stripes would love to see marriage licenses disappear. Pro-licensing advocates cite the following social benefits of keeping licensing:

  • Public health benefits of prohibiting marriage to first cousins (many believe that congenital diseases come from inbreeding)
  • Refusal to permit marriage when one party has a living spouse (thus a disincentive to bigamy)
  • Age limitations (see above)

Libertarians argue that those cases are statistically too small to justify the governmental overreach in claiming the right to grant permission to marry.

Clearly some sort of legal document is needed to demonstrate a married relationship (as opposed to two people just cohabiting who don’t want formal and permanent bonds). Among the times when people should be required to prove marriage:

  1. The right to Social Security survivor payments
  2. Joint property laws automatically grant ownership of property to widows and widowers, but not to current boyfriends and girlfriends
  3. Automatic power of attorney decision-making in times of financial or medical crisis
  4. The ability to be covered under a family health care plan

Obviously that proof could be provided by a marriage registration certificate, not just a license.

Pastor Mark Jeske has been bringing the Word of God to viewers of Time of Grace since the program began airing in late 2001. A Milwaukee native, Pastor Jeske has served as the senior pastor at St. Marcus, a multicultural congregation on Milwaukee’s near north side since 1980. In addition, he is the author of several books and dozens of devotional booklets on various topics.

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