Penny Thoughts: Marriage Licenses and Government Excess

The views and opinions expressed in this article are those of the author and do not necessarily reflect the policy or position of The West Alabama Watchman.

Did you ever wonder why couples could not be married without an official state sanction? That “sanction” came in the form of the vaunted “marriage license”, which, somehow, became not just a customary step for couples wishing to share their lives together forever – it became law.

As “We, the People” have begun serious challenges to the “Governmental Health Research Complex” which has eroded many of our Constitutional liberties over the past four months, it seems worth while to examine just how these arcane and anachronistic marriage requirements became so  much a part of  our matrimonial rubrics. Their history serves to expose just how extensive government over-reach can become to a population willing to believe in “laws” even when they are arbitrary and capricious.

The history of these marriage license “laws” is both horrifying and revealing in that their very existence is one of the most egregious governmental intrusions into personal liberties in American history, and was “accepted” by the American population owing primarily to racial and xenophobic fears. The purpose of marriage laws was practically to prevent miscegenation, “race mixing”.

Marriage licensing was in the American Colonies from their inception having been carried over from English law. The short, sad truth is that these “licenses” were in place from the 1600’s into the 1900’s and had more to do with preventing miscegenation. In her landmark book, What Comes Naturally: Miscegenation Law and the Making of Race in America published in 2009, the late Dr. Peggy Pascoe of the University of Oregon outlines the following:

“…laws prohibiting interracial marriage (otherwise known as miscegenation laws) were so deeply embedded in U.S. history that they would have to be considered America’s longest-lasting form of legal race discrimination – they lasted far longer than either slavery or school segregation.”

The first recorded miscegenation law in the American Colonies was effected in Maryland in 1664.  By the beginning of the Civil War practically all states had miscegenation laws on their books. The enforcement of those laws was made easier and more prominent by the legalized “permission” granted by the state through licensing marriages. This is where the imposition of the state on private, personal choice was first accepted on wide-scale measures.

The Brown vs. Board of Education of Topeka decision in 1954 struck down the 1896 Plessy vs. Ferguson case which had sanctioned the notion of “separate but equal”, the benchmark for all laws and practices including miscegenation through marriage.

Even with Plessy vs. Ferguson overturned, it took the landmark 1967 case, Loving v. Virginia, to settle the issue of miscegenation in marriage. In the Loving case the Supreme Court found that marriage was “a basic civil right” in the words of Chief Justice Earl Warren and, therefore, was protected by the “Equal Protection Clause” of the Fourteenth Amendment.  

The position I hold and unwaveringly cling to is this: no matter what the intentions, whenever a new law is made, another liberty is diminished. 

A fundamental premise upon which America and the notion of “America” was conceived is rooted in the freedom of choice – a simple, but rudimentary respect for the sanctity of an individual’s freedom to make decisions unfettered by any demands of the State. Concomitant with that basic rubric protecting personal liberty is the obligation to act responsibly in accordance with practices and laws.

Given that as a foundation, then, marriage is a “right”, not a “privilege”, and as such is protected by the Constitution in the Fourteenth Amendment. Marriage is a question of individual liberty and not subject to either permission from or subjugation by the State.

Additionally, most religions have as one of their sacraments the ceremony of “holy matrimony” in which a man and a woman profess their love and devotion to each other with their God as witness and participant. Hence, marriage is a religious function and ceremony.

Considering the great extents to which opponents of religion and of God have gone to hail the First Amendment’s allusion to religion eliminating any mention of God or practice of prayer, it seems very odd that they have never opposed the State’s intrusion into this religious practice. And the practice of religion clearly was foremost in the minds of Our Founders as it is the first reference in the First Amendment.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The argument I present here is that requiring licensing of marriage violates the phrase “…or prohibiting the free exercise thereof.” In effect, regulating marriage through licensing is a distinct form of prohibition. It demands that the parties seek permission from the State to participate in a patently religious ceremony. As such, the State does, indeed, make a “law respecting an establishment of religion”, violating the First Amendment.

I am a constant devotee and student of our Constitution and I am utterly amazed that there have been no cases brought before the Supreme Court challenging the religious freedom violations of marriage licensing.

The good news for us here in Alabama is that as of 2019, specifically after August 28, 2019, as provided for in AL SB69,  “…persons wishing to become married are no longer required to file an application for a marriage license with the county probate court, and the courts will no longer issue marriage licenses.”

Still, it is the vigilant citizen in a democratic republic who must maintain constant awareness and scrutiny into the actions of those in authority to insure that by mandate, edict, executive order, or any other device the State may seek to inhibit to limit our personal liberties.