Live Free

Same-sex marriage has been a Constitutionally-protected right in the United States for over thirty years.  Unfortunately most people, including every lawyer I’ve ever spoken to about it, don’t know that.  That’s because the Supreme Court decision that established this fact did so by implication, not by direct statement, and (to the best of my knowledge) no one else has noticed this implication or figured out what it means.  I’d like to share this understanding with you now.

Can we agree that it takes exactly one US Supreme Court decision to define what the law in a given area is?  Only one.  That’s what happened with Roe v. Wade right?  One ruling, one fundamental change in US abortion law.  Any provision of a state constitution and any federal or state statute that restricted abortion was instantly deemed unconstitutional.  That was 1973.

Well, five years later, in 1978, the same US Supreme Court issued a decision in the case of  Zablocki v. Redhail (434US374-1978 for all you lawyer-types) that, if read correctly, had exactly that kind of effect with regard to marriage licenses.

The current battle for marriage equality comes down to getting states to issue marriage licenses for same-sex couples.  Because of the aforementioned ruling, there is no longer a need to fight this battle.  There is, in fact, no longer any such thing as a state-issued marriage license.

Do you know what a license is?  It’s permission to do something which you would otherwise be forbidden to do.  If you need a license, then what you’re getting it for is a privilege, not a right.  When someone says that you have to have a license for something, they are saying that you have to get someone else’s permission, that you lack the inherent authority to do whatever it is on your own.  The idea of a license simply doesn’t apply if you already have the authority, the right, to do a thing.

Imagine what your reaction would be if a government official told you that you needed to get a speech or press license before you could publish your opinions on the Internet, or that your bridge club needed an assembly license for its weekly meetings.  When it’s a right, you don’t need permission and therefore there can be no such thing as a license.

If you ask a lawyer today, he or she will likely tell you that you have to get a license before you can get married (or before your marriage will be recognized as being valid).  That is unquestionably the current practice in most states.  But, if true, this requirement means that getting married is not a right, but rather a privilege granted by the state (the party granting the license is the one giving permission).  If marriage is a personal right, then the state simply can not require you to get a license for it.  So, is marriage a right or a privilege?

To answer that, we need to recognize that there are three types of marriage, three ways you can get married: common law, religious, and civil.

According to common law, a tradition going back long before the New World was even discovered, you are married if you present yourself to the public as being married.  Most cultures do require that a marriage be consummated before it’s recognized, but even there they generally accept the word of the couple in that regard.  While both formal ceremonies and living together are the norm, neither are technically necessary.  All you have to do is say you’re married and the public is expected to take you at your word.  When a ceremony is involved, the  participants actually marry each other by the exchange of vows.  The person conducting it does so more as an emcee than anything else. He or she may declare or pronounce that the marriage has been accomplished, but that is an act of observation, not creation.  Under common law, every competent individual is recognized as having the inherent right and authority to wed in this way.

A religious marriage is one where those involved have chosen to make their mutual-commitment though a religious ceremony, to ask for the blessing of their God in their endeavor.  In most such rituals, the marrying is still done by the participants.  While a member of the clergy usually officiates, their direct contribution is rarely more than to consecrate or sanctify the marriage.  They make the union holy, or ask that it be made such by Divine Intervention, but the union itself is made by those involved.   The right of a religious organization to conduct these rituals (on behalf those who meet their particular requirements for marriage), and the right of individuals to participate in them, is explicitly guaranteed in the U.S. Constitution.  We call it Freedom of Religion.

Finally, there are civil marriages, in which the marriage is created under the authority of the state.  These kind of marriages came into being because individuals wanted to get “formally” married, could not find clergy to do it (often because they were of different races or religions), and asked a government official (such as the town mayor) to do the honors.  This is the only kind of marriage for which the state can  require a license because it’s the only one to which it is giving its permission.  The usual ending for ceremonies of this kind are words like “By the power granted me by the state of California, I declare….”.  Marriage of this kind is a privilege which the state selectively bestows on those whose marriage conform to its standards.  While vows are usually exchanged, it is the authority of the state that creates the marriage, not the acts of the participants.

What has happened over the years is that most state legislatures have created statues which undermine individual and religious rights in favor of privileges granted by the state.  Today, in most states, only marriages licensed by the state are considered valid.  This is, however, a recent development.  Those wishing to challenge it have centuries of practice and law to support them in so doing.

Since two of the three forms of marriage are based on rights, not privileges, no licenses can be required for them.  Remember, you don’t need a license to exercise a right.  If you want a civil marriage, you need permission from the civil authority.  But, if the civil authority won’t give it to you, the other forms of marriage are still available.  And, the state must give them the same recognition they give those they have approved.  Otherwise they are denying your free expression of personal and religious rights.

Religious Freedom was one of the founding principles of this country.  Often referred to as separation of church and state, it means that all religious organizations, and their practices, must be given equal treatment under the law.  For this reason, laws giving special privileges to people who are ordained, apply to all clergy, regardless of what organization they belong to. They have to, or they’re unconstitutional.  Because it is also a religious practice, the same must be true for laws regarding marriage.  To have it be otherwise would be equally unconstitutional because it would deny the unalienable rights of association, privacy, and the free exercise of religion.

As much as some would like to, we simply can’t pass laws saying who can or can’t get married.  If we could, we could also pass laws saying who can and who can’t be ordained.  Do you think it would be at all constitutional for the government to require that individual clergy be “approved” by a government official before taking their vestments?  Could you imagine a law to penalize domestic Catholic churches for not having female Priests?   What about saying to local Jewish Temples that since the age of majority is now eighteen, a person has to be that old to become a Bar or Bat Mitzvah?  No, of course not.  It’s up to each denomination to determine who can be counted, forgiven, ordained, married, or whatever.  Because we don’t have a state religion, it’s not up to the public, or their legislative representatives, to determine the criteria for who can participate in a religious marriage ceremony any more than its up to them to decide what color linen to use as an altar cloth.

But wait, what about “State Interests”?  Aren’t there some cases where the rights of the individual have to be mitigated by the greater good?  While there are many people who advocate this idea, it is, in fact, contrary to our system of government, which is known as a Constitutional Republic.  We are often called a democracy, because we use a democratic process to select many of our governmental officials, but once elected, their power and authority is (supposed to be) restricted by republican principles, including the idea that individuals have unalienable rights which can not be limited by legislation.

The state can not create laws which deny individual rights, even for the sake of  “public interest”.  If they could, people arrested for violent crimes like rape or murder would not be released on “technical” grounds, like an invalid search or an omitted Miranda warning.  The rights of the accused are superior to the public interest of reducing crime, or even of saving lives.  Could any other public interest be more important than those?  These same restrictions apply in all matters of individual rights, including those regarding who can get married.  At least, that’s how  the Justices of the US Supreme Court saw it in 1978.

In that year, they issued their ruling for the previously-mentioned case of Zablocki v. Redhail.  Within it are citations of several prior Court decisions which established marriage as “of fundamental importance to all individuals”, that it was “one of the ‘basic civil rights of man”, and “the most important relation in life.”  They went so far as to state that “the right to marry is part of the fundamental ‘right to privacy’ ” in the U.S. Constitution and made an explicit connection between this ruling and the much more famous one they made a few years earlier.

The authors of Zablocki v. Redhail explicitly affirmed that a person’s right to marry was another case where the principles they espoused in Roe v. Wade must be applied.  Unfortunately, the effect has been muted in the case of Zablocki v. Redhail.  Had it not been, all laws requiring marriage licences would have met the same fate as those restricting a woman’s right to an abortion.  Because, if doing something is a right, there can be no such thing as a license for it.

Of all their statements regarding the right of marriage, the following stands out as particularly relevant to the claims of this article, even though it’s stated in the negative: “…regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed”.  Yes, the states can enact laws regarding marriage, but in so doing, they can not significantly interfere with your right to get married.  Trying to redefine marriage or limit its recognition to approved classes of people does just that.  That’s why all such laws, including recently enacted amendments to state constitutions, must be recognized as “void, ab initio” (a legal term meaning they were never really in effect as law).

And that’s why there is no longer a legal basis for taking about marriage licenses.  Since the Supreme Court said that marriage is a Constitutionally-protected right, the states can no longer grant (or withhold) their permission.  State officials can still perform marriages, and a fee for services would be in order, but nothing called a license can be required.  A state can create a marriage registration requirement, just as they do for automobiles.  But in doing so, they would have to accept all such registrations, regardless of the gender (or for that matter, the number) of the participants.  Otherwise, they would be violating the  “… do not significantly interfere…” provision of the ruling.

Those interested in advancing the cause of same-sex marriage might find it more effective to claim the victory they’ve already won than to continue slugging it out in the trenches of public opinion.  All that’s necessary is to remind people that, in this country, we don’t get to decide for others how they are going to exercise their rights any more than they get to decide for us how we are going to exercise ours!

This entry was posted on Monday, June 22nd, 2009 at 11:01 am and is filed under Freedom. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.