Statists claim that the purpose of licensure laws is to protect people and produce quality results. They would say that through licensing, states can guarantee that whether you are educating your children, insuring your life, or getting a haircut you can be assured that the provider of those services has been through a state sanctioned training program and thus will render services with at least a minimal standard of performance required to ensure the health and vitality of society.
But, what about marriage licenses? Are they intended to guarantee a minimal quality of family life? Apparently they were first intended to do just that. In the United States, by the early 1920s, marriage license laws in at least 38 states made it a crime for whites to marry blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. It doesn’t make it right and these laws seem totally reprehensible to us today, but they did reflect the social mores of that time period.
So, what does it say about our time period that voters are still supporting similarly repugnant laws? I speak of course about the voters of North Carolina recent approval of an amendment to the state constitution making anything other than a union between one man and one woman an invalid relationship under state law. The amendment passed with the support of 61 percent of the electorate! What’s worse is that North Carolina became the 30th state to amend its constitution to prohibit marriage between same-sex couples. Whatever happened to the principle that constitutions are meant to limit the scope of government and protect individual rights? It apparently has been thrown out the window, into the street, and run over by traffic time and time again just like other time tested principles of constitutionalism.
And like all laws dealing with personal matters, the number of unintended consequences once this law goes into effect will be huge. An ACLU analysis of the new constitutional mandate indicates that domestic violence laws could be undermined for folks in unmarried relationships; parents that aren’t married to each other could no longer have the same child custody and visitation rights as married parents; end-of-life arrangements like wills could be altered; and lastly, agreements between unmarried life partners could be determined null and void.
In the final analysis, government has no jurisdiction over who can marry whom. We are talking about private relationships between consenting adults. It has no more right to interfere in this area of life than it does to tell people where they can live within the country or how many children they can have.
When you think about it, why do you need a license to marry, but not to have children? Are children, who are completely dependent on their mothers and fathers, not a more intense responsibility than caring for a spouse who is a self-sustaining adult?
Isn’t marriage, like child rearing, a very personal matter that should be left in private hands? Individuals should be free to consummate their commitment as they see fit. Instead of or in addition to vows, a legal contract could bind the parties together. Pre-nuptial agreements already exist so the idea is not far-fetched. Government could intervene like it does in other contractual matters – to adjudicate a dispute under the marriage contract. Privatizing the institution of marriage eliminates the controversy of same-sex marriage. States without same-sex marriage would not be required under the full faith and credit clause of the Constitution to recognize gay marriage granted in another state. Divorce rights, the partitioning of assets, child custody, and next of kin status would be mandated in the marriage contract. It is possible that businesses could deny same-sex couples the same employment benefits enjoyed by heterosexual couples, but those companies would do it at their own peril by risking the loss of top quality applicants to fill important positions.
At the end of the day, licensing laws are a means for government to control society. Within the institution of marriage they have been/are being used to place value on one kind of relationship over another. They are anti-democratic, intolerant, and infringe upon the liberty of individuals. By making marriage a totally private institution, a controversial issue that divides America would be laid to rest. As a nation, we could tackle the pressing issues facing our people – the loss of civil liberties, endless wars, and an unsound monetary policy. People would be free to live as the Founders intended and the age of bigotry with regard to marriage would finally end.
Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina