A war over a right?

In a piece titled "Minorities at war on Obamaland's Western shore," distinguished Canadian journalist Colby Cosh looks at the Proposition 8 conflict (including the latest nonsensical meme that gays who voted for McCain did so out of racism) and concludes,

It's enough to make you glad you live in a country where such matters are handled entirely undemocratically! Like it or not, we do avoid a certain amount of genuine unpleasantness that way.
Via Glenn Reynolds, who says,
Personally, I'd like to see the separation of marriage and state, taking this stuff out of the political realm entirely.
Well, licensing is, after all, a government restriction. When people speak of marriage as a "right," they really are not speaking of a right to marriage, but a "right" to a marriage license. Yet true rights (such as freedom of speech and freedom of religion) are not -- and by their nature cannot be -- subject to licensing.

If marriage were treated as a right, it would not be subject to licensing.

In the normal scope of things, activities that are licensed -- cutting hair, flying planes, driving 18 wheelers, practicing law, medicine, etc. -- are not rights at all, but occupational choices that require training, which are regulated by the state.

I don't know much about the history of marriage licensing, but this minister claims that it's a recent (and racist) development, and that George Washington and Abraham Lincoln had no marriage licenses:

George Washington was married without a marriage license. Abraham Lincoln was married without a marriage license. So, how did we come to this place in America where marriage licenses are issued?

Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800's, certain states began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. In other words they had to receive permission to do an act which without such permission would be illegal.

Blacks Law Dictionary points to this historical fact when it defines "marriage license" as, "A license or permission granted by public authority to persons who intend to intermarry." "Intermarry" is defined in Black's Law Dictionary as, "Miscegenation; mixed or interracial marriages."

Give the State an inch and they'll take a 100 miles (or as one elderly woman once said to me "10,000 miles.") Not long after these licenses were issued, some states began requiring all people who marry to obtain a marriage license. In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws.

Perhaps the current turmoil stems from a confusion between licensing and rights.

I'd hate to think all this fuss is over a desire for official state imprimatur, but I worry that it is. Like almost everything else (soon including the auto industry), marriage is seen as something you get from the government. Maybe it would be better to see it as something that the government cannot interfere with, the way genuine rights are.

(On the other hand, if you can't be born without a birth certificate and can't die without a death certificate, maybe all things -- including life itself -- do come from the government.)

Nah, scratch that. A birth certificate is not a license to be born, nor is a death certificate a license to die.

UPDATE: My thanks to Glenn Reynolds for the link, and a warm welcome to all.

Comments appreciated, agree or disagree.

posted by Eric on 11.10.08 at 06:56 PM


A right is non-negotiable.

Brett   ·  November 10, 2008 7:18 PM

Birth and death certificates are just proof you've done both...

But regarding the LGTG movement's desire for government license, isn't it just the desire for wider cultural acceptance transferred onto the government?

Elena   ·  November 11, 2008 12:19 AM

A marriage license is permission for the State to intrude into the most private and intimate aspects of personal relationships. Opt out. Don't opt in.

Rhodium Heart   ·  November 11, 2008 1:43 AM

What about the right to bear arms?

It's a right - but because of the inherent risks to public safety, it is regulated.

Similarly, marriage is regulated because of its importance to society - whether or not it's a right.

Ben-David   ·  November 11, 2008 4:48 AM

Hello. And Bye.

XRumerTest   ·  November 11, 2008 5:47 AM

Non-negotiable, Ben-David. No matter the rationale, when governments take it upon themselves to "regulate," your rights, they are actually violating them.

Government my recognize and defend individual rights, or it may deny and violate them.

What it cannot do, is grant them. Were the second amendment to be repealed by due process of amendment, the right to bear arms would still pertain.

Brett   ·  November 11, 2008 7:24 AM

Geez. First we learn that the roots of gun control are racist. Then we learn that the roots of the war on drugs are racist. And now we learn that the simple marriage license has racist roots.

I bet the roots of the federal and state income taxes are racist, too. Right? Right? Bueller? Anyone?

Letalis Maximus, Esq.   ·  November 11, 2008 7:29 AM

Brett, to be precise, were the 2nd Amendment repealed, the right to bear arms would instantly vanish.

Rights are not inherent, they are declared. They,like licenses, are man made, that despite my belief that there is indeed ample evidence for rights in the context of the Founder's "nature's God". I would agree with you that I should have the "right" to defend myself. But only my foolish and slothful peers, acting out their idiotic whims and fantasies nationally, hold that "right" in their grubby little clutches.

But by nature, rights must be declared and then enforced. They do not grow on trees. This is why they are indeed enumerated and cherished, that is, cherished for the time it takes to destroy them.

That serves as a preamble to my agreeing with this piece almost entirely, for once recognized as a fragile thing, a right next requires a 24/7 defense against the license, the restriction, and the goddamn State.

We failed. We were lazy. We're losing all of our freedoms. The price of that freedom is indeed eternal vigilance.

How many of us write on a weekly basis the fools we've elected to in effect, rule us?

Ten   ·  November 11, 2008 7:46 AM

Ten, absolutely wrong. In that scenario, the legitimacy of the governors vanishes.

Rights precede government, which can defend or violate them. The declaration of rights is a recognition, not a grant.

This distinction is important, as it separates the moral political stance from the immoral.

Brett   ·  November 11, 2008 8:02 AM

I've been thinking for sometime that governments ought to get out of the marriage business. For legal and practical reasons (property rights, inheritance, health decisions, etc) there is probably a need to have a "government-recognized" life partnership between individuals ie a civil union. But the marriage itself should be a religious or private matter. So if you want to legal rights of a union you get a "government life partnership license". If you want the spiritual bond of a marriage -- go to a church (or shaman or whatever). If you want both -- get both. That way the government is only conferring the legal rights that a government can confer. The marriage part in now in the realm of the private and religious.

NC Reader   ·  November 11, 2008 8:25 AM

Eric, you're not seeing the forest for the trees.

We're not at war over a right, we're at war over a cultural definition of a word. It's not a trivial one, either. One side wants to erase all differentiation between heterosexual and homosexual unions, the other doesn't. The marriage issue is a part of the deal, not the final goal.

The Boy Scouts have been under attack by the gays because they differentiate. The demonstrations against the churches recently were for the same reason. Anyone who makes a distinction between the two relationships will come under attack. The marriage issue is just one battle in the war.

Once they win the marriage issue, public schools will begin teaching that there is no difference between gay and straight relationships. It's no coincidence that one of the biggest opponents of prop 8 were the teachers. An underlying theme of this teaching will be to tie differentiation of sexual orientation to racial discrimination (this is already their primary theme), thus claiming that most major religions are havens for bigotry.

You're way too hung up on narrow, libertarian analyses. It's much, much bigger than just what the government does or doesn't do.

Put the government aside. Is there a meaningful difference between hetero- and homosexual relationships? Is there a meaningful difference between men and women?

K T Cat   ·  November 11, 2008 8:51 AM

In England Marriage licenses were obtained from church officials. They used to require posting the Banns 2 weeks before without a special license that allowed quickie marriages.

In Scotland the elopement destination was just jumping over a broom or a verbal acknowledgement before witness that a man and woman were married.

The only part the secular gov't was involved was partition or consolidation of property.

The crown was obviously interested the property settlements of royal marriages and the treaty obligations that may have been negotiated.

When marriage can start or stop a war, the interests of the government becomes extreme.

In US licenses were used for many purposes, like require blood test for venereal disease or prevent too closely relative people marrying. I am sure that preventing mixed marriages were an interest also. Since legal rights depended on what portion a person was white or black that was of interest to eliminate the confusion.

Gays can easily make a legal partnership agreement and define the terms. They can make up their own joining ceremony and celebrate. They do not need a state license.

Why do Gays want to be regulated on their personal relationships?

RAH   ·  November 11, 2008 8:52 AM

KT Cat is correct. As evidence I will link to a radical attack on traditional church linked at gateway pundit.


RAH   ·  November 11, 2008 8:59 AM

When I lived in Ghana thirty years ago, local people used to joke, "You Americans marry your wives only once. We marry ours up to three times."

In that world, a man went through some cultural/ financial arrangements with his future wife's relatives and they gave her to him. If he was a Christian, he might or might not have a church ceremony as well. If he was an educated city-dweller, he might also get a government license, but the couple was already married in every useful sense.

Seems to me we could remodel the marriage certificate on the pattern of birth and death certificates: registering with the state a life change that has already taken place.

notaclue   ·  November 11, 2008 9:32 AM



K T Cat   ·  November 11, 2008 9:59 AM

No one has mentioned what seems to me to be the obvious reason for licensing marriage: the financial benefits.

Marriage has great impact on the availability of employer-sponsored health and pension plans for spouses, and it also plays a major role in inheritance laws. It is true that "domestic partners" can obtain employer-sponsored health benefits, but they have to pay the full cost, not the much lower contributions that most plans have for married spouses.

Without licensing, two people could declare themselves married for the sole purpose of financial gain. I don't see how the state can get out of the marriage license business without completely redefining all our current laws in which a married spouse plays a key role.

Herrina   ·  November 11, 2008 11:48 AM

Herrina, quite easily, since the employer (or health organization) can make the necessary adjustments.

Since I pay my own health benefits out of pocket ( because we are an extreme case of healthiness that makes it cheaper ), if the government decided to null my marriage to my wife, it would have absolutely no effect. (Oh, I might make out a will, but that's about it) There is nothing of any interest in that regard.

I think people are barking up the wrong tree (government) when they should be asking for a change in the policies of the private parties (employers, etc)

darelf   ·  November 11, 2008 2:19 PM


A right is non-negotiable.

And marriage is nothing but negotiation. Therefore marriage is not a right.

Excellent, good to have solved that.

Now that we've solved that, could you tell me why my right to free speech is trumped by McCain - Feingold? Why many states put limits (like the "you must retreat if you can" doctrine) on my right of self defense? Why the Federal and State Governments impose so many limits on my right to do as I wish with my property? Why the Federal and State Government's continually trample over my right to keep and bear arms? (100 years ago, there was no SSM, but there was private ownership of military class firearms, the equivalent of a fully automatic M 16)?

And then could you tell me why it is that any "right" (just invented last week) that someone from the left wants is "non-negotiable", but the actual rights written into the Constitution don't matter at all?


Greg Q   ·  November 11, 2008 2:20 PM

Why licensing?

Well, if you're (heterosexually) married, and your wife has a child, then you are presumptively the father of that child. If you're not married, and you get your partner pregnant, and want to be considered the father of the child, you have to prove it.

If you're married in a community property state, 1/2 of what's yours is your spouse's (and vice versa). If you get divorced, your spouse may be owed, or may owe you, support for the support (s)he gave you while you were married.

I'd hate to think all this fuss is over a desire for official state imprimatur, but I worry that it is.

Pardon the language, but "no shit, Sherlock!" CA gives every legal right of married couples that it can grant, to members of Civil Unions. The Federal DoMA prevents all same-sex couple from getting the Federal rights of marriage, whether or not they have a valid marriage license from a State.

SSM is entirely about getting State imprimatur, and then shoving it down the throats of all the "rubes" who don't approve of homosexuality.

You want a wedding? Great, throw one. I promise you, call it a wedding v. calling it a civil union ceremony: no one cares.

It's when you get the State involved, and, esp/ when you use black robed thugs to push your desires on the rest of us, that people start to care.

Greg Q   ·  November 11, 2008 2:33 PM

Herrina: Without licensing, two people could declare themselves married for the sole purpose of financial gain.

How is that different from the status quo, except that the two people must necessarily be of different genders?

Bryan Lovely   ·  November 11, 2008 2:33 PM

Marriage is another issue that divides conservatives and libertarians. Historically marriage is the legitimate joining of a woman and man and sanctified by religion. So marriage is seen as more of a religious issue that a state issue. Since marriage also joined estates the issues of significant property came into the issue of marriage and the settlement of property upon the woman or man that entered in the marriage. Since any issue also had inheritance rights this involved also property, therefore property rights are involved Property issues since they are contractual was enforced by secular courts and not religious courts. Thus the state also become involved in the legitimacy of marriage.

Couples that want to become married have no problems as long as they are male and women and of sufficient age and not related too closely. Couples of the same sex have problems because many religions ban same sex activity and consider it a sin.

Since marriage is often both a religious ceremony and a license issued by the state, this is a problem. Now the state can create a new partnership or civil union license and define the property rights included in that joining. But gays often seem to be not satisfied with that but instead want to get a religious ceremony also. For that they would have to a member of a religion that allows same sex marriage.

Conservative religious people do not want their churches’ to sanctify what the religion considers a sin. This issue has split the Episcopalian Church that has existed for centuries.

Most people do not care if a civil ceremony is set up by the state. But they fear is that is not enough. There is reason behind this fear. Smoking was originally banned just in stores and airplanes. Now judges and state legislatures are gone to the point of banning it in private restaurants and some have had a ban issued in their cars and homes. Judges no longer allow a legal activity because the non-smoking advocates were not satisfied and keep pushing more and more bans especially in civil suits about children health.

Gays have been seen as similar in that they keep pushing the boundaries and the indoctrination and propaganda in K-12 schools are evidence of this.

Gays have used the judiciary to impose their desires on the rest of the civil society without the agreement of the society. This creates a lot of resentment. Proposition 8 was an action designed to avoid a law that declared marriage is between man and woman.
So the referendum failed because society is not ready to have this imposed upon them rather than chosen. So basically to be against Proposition 8 is really a libertarian idea since that was the right to prevent a change forced upon the state.

Liberals who advocate state imposed rules and judge imposed rules are happy with this method and have been agreeable with the desires to expand and normalize the gay lifestyle. Libertarians should not be agreeable with state imposed rules and generally should be in agreement that individuals can use free choice on whether to be for or against gay marriage.

Economic conservatives are easily convinced that liberal ideas are fiscally prudent. But State mandated and run health care is not economically prudent. The expansion of CRA into Fannie Mae and Freddie Mac guaranteed loans created a moral hazard and was not economically conservative. But economic conservatives did not come in force for McCain; instead they split their vote to between Obama and McCain. Religious conservatives do not want to impose their faith on others but want to freely express their faith in public and to worship as they please. But they feel constantly attacked by the society that pushes non conservative ideas as teenage promiscuity, couples living together without marriage, illegitimacy of children, same sex marriage and the public displays of homosexuality. Most religious conservatives would not care what happens in the privacy of the home but object to the flagrant displays in parades and the promotion to their children in public school of homosexuality and the encouragement of sex.

RAH   ·  November 11, 2008 3:48 PM

Laws are the codification of the culture. If we are a people that is generous, we will tax the rich at a higher rate and give that money to the poor. If we don't see the difference between gays and straights we will do away with differentiation in marriage.

There's much more to this than economic analysis using Excel spreadsheets. Life is more than tax receipts.

K T Cat   ·  November 11, 2008 4:52 PM

Seems to me that:
1. Government is really just the legalization/legitimization of the use of force. As such, the State does not grant rights, it imposes obligations. Marriage is not a right, it is an obligation, and it essentially permits the State to step into your bedroom. Why anyone would welcome on the theory it will make them “equal” is beyond my comprehension.
2. To the extent any “right” may attach to marriage, it has nothing to do with the direct participants. To my mind, people who argue otherwise do not understand marriage (rightly or wrongly, I arrived at that conclusion because I fell into the category not too many years ago). Marriage is not about the married, it is about the responsibility of raising a newly created human to be a responsible adult (yes, 18-25 years of commitment, minimum). I grant that large parts of our society have failed in their obligations there, and that same sex people can raise (someone else’s biological) children successfully, but that does not mean we destroy the word just to placate the few. [Does the slow rise of “covenant marriage” as a counter to the ongoing degeneration of marriage affect this discussion?]
3. At the end of the day, the word “marriage” has a meaning, and changing that meaning does not make you equal nor does failing to change it make you unequal. Query, however, what judicially imposing your views over those of the majority does to that “equality” determination.

HC   ·  November 11, 2008 9:41 PM

Yes, marriage is primarily a method for protecting the woman and the offspring to get certain rights and benefits. Monetary support for providing children and for the woman who does not have much earning capacity raising children.

I know women can now have a job and children but their are limits on how much a career can be achieved while in the mommy track.

Just see how Palin was critized for having a young child and daring to be a VP candidate.

Anonymous   ·  November 11, 2008 10:17 PM


Marina Ray   ·  November 13, 2008 1:02 AM

Sure, I'll go along with just anybody's choice to call themselves married as soon as everybody will go along with my choice of whom I'll consider married and my choice of whether to rent, hire, or promote people based on whether I consider them married.

The same-sex marriage battle has opened up my eyes to a vast multitude of social and cultural coercions that are championed by the so-called social liberals. Why are so many who style themselves part of the Leave Me Alone coalition so eager to butt into everybody else's business yet lack the self-awareness to recognize that that's what they're doing?

Micha Elyi   ·  November 13, 2008 5:41 AM

I noticed that The LEAVE ME ALONE want to leglislate marriage and impose their pro gay morality on non gays.

Seems contradictory. Why don't they leave marriage alone. So they only want others to leave them alone but not give that consideration to others beliefs.

Again why do gays want to have the state regulate their personal lives? Seems like a really bad deal. All benefits can be negotiated it other ways.

I would prefer the freedom to set up my relationships free of the state. Keep the state out of it.

Those married under the court ruling should consider themselves still married. They do not need the states approval. They only need each others approval.

RAH   ·  November 14, 2008 2:24 AM

Let me get this straight. The marriage license circa 1700 to 1950 was in place to stem the tide of white/black attempts at marriage?

Really? I mean.....really???? That's the argument? Are you sure it wasn't to keep the Chinese from marrying their offspring? Or the gap-toothed hicks of Appalachia from marrying their own brothers and sisters?

It was all about denying devoted lovers their right to marry (despite their racial diffs)and live as decent folk just like "The Christian God" intended? Wow! I guess we were more diverse than we thought back then. Who knew there was such boiling demand for mankind's oldest institution to go interracial right here?

Yeah. Brilliant. Not dumb at all.

ccoffer   ·  November 16, 2008 10:09 PM

Let me get this straight. The marriage license circa 1700 to 1950 was in place to stem the tide of white/black attempts at marriage?

Really? I mean.....really???? That's the argument? Are you sure it wasn't to keep the Chinese from marrying their offspring? Or the gap-toothed hicks of Appalachia from marrying their own brothers and sisters?

It was all about denying devoted lovers their right to marry (despite their racial diffs)and live as decent folk just like "The Christian God" intended? Wow! I guess we were more diverse than we thought back then. Who knew there was such boiling demand for mankind's oldest institution to go interracial right here?

Yeah. Brilliant.

ccoffer   ·  November 16, 2008 10:11 PM

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