The Supreme Court is listening to oral arguments this week in the two cases involving same-sex marriage; Hollingworth v. Perry involving the constitutionality of California’s Prop 8 which outlaws same sex marriage and U.S. v Windsor which seeks to overthrow the federal Defense of Marriage Act (DOMA) defining marriage for the purpose of federal benefits as between one man and one woman. Windsor has issues all its’ own, but the current buzz over Hollingsworth makes me wonder if the Supreme Court isn’t being asked to rule on the wrong issue. Shouldn’t we be questioning the right of government to mess with marriage at all?
Marriage is essentially a contract, i.e. a “binding agreement between two or more persons or parties; especially : one legally enforceable.” Marriage is, in fact, the third definition of a contract given by Merriam Webster. But there are dozens of types of contracts to which government is not required to be a party – leases, employment agreements, and partnerships to name just a few. There are other contracts in which the state is involved only after the fact – property transfers, UCC filings, and stock transactions among them.
A license on the other hand is defined simply as “permission to act.” Where the government is the entity granting permission it is typically for two reasons; to raise funds through fees or to protect the community by insuring the qualifications or ability of an individual to act; whether it is to drive a car, build a house, represent someone in court, or cut their hair.
So is marriage a contract or something requiring the state’s permission? If the former then what interest does the state have in that contract outside of adjudicating the terms upon request of one of the parties? If the latter, then on what basis is permission required?
I’m not suggesting that the state is without reasons to legitimize marriage. It involves matters of property and inheritance: the welfare of children may be involved and with divorce dissolving half of all marriages, it is helpful to have something legal to dissolve. But these are largely contract matters, not issues requiring a determination of skill or training nor an act involving a community’s safety or well-being.
The days of requiring a blood test to ensure sexually transmitted diseases are not brought to the marriage bed is long behind us and the licensing process does nothing to ensure the potential partners’ ability to enter into a contract beyond asking if they are legally free to do so. If the state is going to argue their duty to license is based on protecting children then they would do better to issue one to procreate based on sound evidence of parenting skills.
In fact, licensing folks to marry seems about as logical as licensing the person in need of a colostomy. If we turn to the concept of marriage as a contract, then the states’ role would be to license or certify the ability of someone to officiate at the contract signing, something states do in some form anyway. That person, be she an officer of the court, notary, priest, or whoever else the state might wish to deem qualified, would swear to uphold the states requirements for entering a contract, determining the legal age, ability to consent, and the unmarried status of the parties, just as the town or marriage clerk now does. No official would have to marry anyone he did not wish to marry thus protecting issues of religion, faith, or personal judgment.
In order for the marriage to be valid and enforceable as a contract it would have to be registered with the state or its designee within a set time limit and at this time the state could collect the same fees it does for a license so, God forbid, there will be no loss of revenue. The state would then be able to perform any legal determinations it might consequently need to make in the event of a death, divorce, or property dispute.
By reversing the order of the state’s involvement in marriage it removes it from the ability to pass judgment on who can be married and who cannot be. It also transfers the onus of that decision to a “professional” just as it does with the responsibility of determining who would benefit from electrolysis or undergo an appendectomy. If the religious right has a problem with a wedding let them take it up with the woman or man facing the back of the room.