I posted this about seven months ago over at The Liberty Papers. Given yesterday’s ruling in California, I think a repost is timely:
Historian Stephanie Coontz has an interesting article in today’s New York Times examining the relationship between the state and the institution of marriage. As Coontz notes, the idea that all marriages must be licensed by the state is a relatively recent phenomenon historically speaking:
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
That practice carried over to the American colonies and, later, the United States, where, as Coontz notes, marriage licensing laws quickly became a way to prevent socially disapproved inter-racial marriages:
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
Additionally, the existence of a marriage license was used for another purpose; to determine how, if at all benefits ranging from Social Security benefits to employer-provided health care would be distributed. At the time, it made sense because, up until the 1970s , virtually all adults were married.
As Coontz says, though, such distinctions no longer make sense:
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.
Nor does it recognize the right of individuals to enter into relationships of their own choosing, for their own reasons.
Coontz ends her essay with the statement that we should consider returning to the way things were in the Middle Ages; let the churches decide what marriages they will recognize, and let individuals enter into whatever committed relationship they desire.
I said pretty much the same thing about a year ago:
Get rid of civil marriage licenses entirely. Let people decide for themselves what they believe about marriage and let them, if they wish solemnize that union in a church of their choice. We are hundreds of years past the day where the state was involved in religious affairs, it doesn’t need to be involved in this matter either.
One would think that this would be a solution to issues like gay marriage that would make everyone happy.
