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Well, the title of this piece is not quite right. However, in response to the legalization of same-sex marriages by the Supreme Court in 2015, Alabama lawmakers passed a bill to end the issuance of marriage licenses by probate judges. Although, I have to wonder if Alabama lawmakers think they are somehow sticking it to them gay-lovin’ libruls, the libertarian in me is cheering this decision.
Under the bill that passed today, couples wanting to get married would submit to the probate judge a form that includes an affidavit saying they meet the legal requirements of marriage and the probate judge would record that as the official marriage document.
This is the way it should be. No one is forced to participate in a ceremony or event with which they disagree or to which they have a moral objection. The probate judge would simply record a legal document, as is his or her job.
Marriage should be a legal contract between consenting adults, and I would treat it just like any free market issue. You don’t force a church to marry a same-sex couple if such a union runs counter to the teachings of the faith. Any church whose officials decide to perform such ceremonies will either lose congregants or gain them, based on individual beliefs.
All Americans should have the right to engage in a contractual relationship, as long as it does no harm to any other individual. And if you oppose said contract, stay the hell away. Free people should be able to engage with one another based on mutual consent. Period.
Marriage wasn’t always an affair of the heart. Marriages fostered political and economic alliances, as well as created business empires.
When the original European settlers voyaged to America, they brought marital traditions with them. A professor specializing in the analysis of family systems, Stephanie Coontz explains that for centuries, marriage was not necessarily a union of love; it was a way to secure one’s social status and ensure a stable financial future. As Coontz reveals, marriage revolved around political, social, and economic factors. Due to this cultural environment, earlier European and American societies considered it an anathema to marry solely for love or to marry someone of a different race or lower economic status. These societies also deemed procreation to be an important aspect of marriage. Since the husband and wife were the central building blocks of a family unit, as Coontz points out, these societies considered marriage to correlate with childbearing. Only a husband and wife were deemed appropriate to raise a successful child. Therefore, marriage was the only socially acceptable gateway to childbearing.
Throughout American history, the government transformed these religious and societal traditions into law, creating the field of marriage law. In addition, the 1888 Supreme Court case of Maynard v. Hill declared marriage to be “the foundation of the family and of society, without which there would be neither civilization nor progress.”
Here’s the thing. From anti-miscegenation laws to the “separate but equal” doctrine, the state has attempted to keep people whose unions weren’t, shall we say, “popular” from marrying. The marriage license was created in the US in the 1920s to ensure that the races were kept pure by preventing white people from marrying them nasty blacks.
And until the Obergefell decision in 2015, marriage licenses were also a tool for some states to prevent gays from entering into a union.
This is the essence of government force. It’s not about living together. It’s not about whether you’re in a relationship. It’s about being able to legally be recognized as a family member across the United States. In Obergefell’s case, it was about the plaintiff being able to put his name on his husband’s Ohio death certificate as surviving spouse.
In his dissent in Obergefell, Chief Justice John Roberts stated that same-sex marriage bans did not violate the Equal Protection Clause because they were rationally related to a governmental interest: preserving the traditional definition of marriage.
I have questions:
Why is preserving the “traditional definition of marriage” a governmental interest?
To what “tradition” was Roberts referring, given that traditions have differed throughout societies over time?
In another dissent, the late Justice Scalia – one of the few times I disagreed with his brilliant mind – wrote that the Court’s decision effectively robs the people of “the freedom to govern themselves.” However, preventing people from freely engaging with one another contractually robs them of the freedom to engage in relationships with one another that both find agreeable.
Justice Thomas wrote that with the Obergefell decision, the ” judiciary strays from the Constitution’s text, subverts the democratic process, and “exalts judges at the expense of the People from whom they derive their authority.”
But does the Constitution give the government the right to define relationships between two consenting adults? The powers of the US Congress are clear, and they are directly related to the economy and national security. Implied powers “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof” refer to the powers specifically enumerated.
Defining a legal relationship between individuals is not on that list, and it’s the epitome of government overreach and the ever-expanding power of the federal government.
But whether you agree with my assessment of Obergefell or not, it’s tough to argue that what Alabama is doing doesn’t make sense. It allows judges to avoid the gay marriage debate altogether. It eliminates the conflict of the existing Alabama law with the Obergefell decision. It would put all couples on equal footing, requiring them to submit a form confirming that they are of legal age, are entering the marriage willingly, are not already married, and are not related.
And it takes the state out of the issue, which as far as I’m concerned is good for everyone.
Featured photo: Pixabay; Cropped; Pixabay License
Charles N. Steele says: I agree with your argument, Mrs. Hernandez. But also, the federal government has no business at all defining marriage. The Constitution doesn’t authorize this. But that seems to be Justice Thomas’ position.
I strongly disagree with Justice Roberts’ position, which invents something called “state interests” against which other things, like individual rights or limits to govt powers — must be “balanced.” States aren’t persons with interests, they are mere means to the end of protecting people and enabling us to live freely.
The Alabama law does seem to be a move in the right direction.
Marta Hernandez says: Yep!
Marriage recognizes paternity and inheritance issues.
The state, in order to promote family relationships for a stable society, one where a father stays in the family and the family procreates to provide a stable labor force, may issue laws protecting and promoting that arrangement.
This is a logical function of the state
These issues are foreign to homosexual relationships.
Why give tax breaks to a same-sex couple so one can stay at home to raise non-existent children?
Marta Hernandez says: Because they do adopt and many do have children from previous marriages.
Additionally, as a libertarian (conservative type), I abhor the idea of the state promoting any type of behavior! No. Period. Defend from violence? Sure. Operate courts to arbitrate disputes? Sure. Common infrastructure? Sure. But stay the hell out of my home.
GRA says: >Because they do adopt and many do have children from previous marriages.
Many? Without intercourse of the opposite sex sodomites wouldn’t have any kids – their family formation is dependent on mimicking what naturally they cannot do.
Hate_me says: Why give tax breaks for marriage, at all. Many choose to be single because they don’t feel a family is worth the expense… they prefer the expendable income and time over the joys of settling down. Why is it the government’s job or the single-person’s tax interest to reward one option over the other?
Darleen Click says: While I applaud AL for removing marriage from being a relationship endorsed by the state into one in which a relationship is merely registered, IMHO the reaction to this bill is why I personally opposed Obergefell
Among those voting against the bill today was Rep. Neil Rafferty, D-Birmingham, who is gay and married his partner of 15 years in December.
“I feel like while in and of itself it is not prejudiced, I feel like it was born out of prejudice though,” Rafferty said. “That’s just kind of my ultimate feelings, why I ultimately couldn’t support the bill, even though in and of itself it does create a system that treats everyone equal before the state.”
He doesn’t like it because, in the end it does treat everyone equally but because it doesn’t force those icky Christians and Jews to give full-throated rainbow-hued celebration of same-sex marriage. This guy isn’t voting on dispassionate law but his feelings.
LGBTQQRSTLMNOP isn’t about ‘rights’ or ‘equality’ but about shutting down people who disagree and destroying them if possible.
Scott says: Spot on Darleen, all the alphabet soup mental illness crowd is about is destruction of any traditional values, and forcing others to celebrate their deviance..
Bill S says: The author asks two quesrions:
“Why is preserving the ‘traditional definition of marriage’ a governmental interest?” and “To what ‘tradition’ was Roberts referring, given that traditions have differed throughout societies over time?”
It is hard to believe these are serious questions. The answers to these questions have been given dozens if not hundreds of times over. If the author disagrees with those answers, she should refute them, not pretend an answer has not been give.
Economic theory has discussed the concepts of positive and negative externalities. There is nothing more important than having well-educated, civic-minded, well-adjusted children to hand the country over to. Children who are unproductive, delinquent and/or anti-social are massive drags on society. The pro-abortion lobbied answer here is to abort the next generation and import it from Latin America.
Until recently, no one challenged the wisdow that a mother and father, together, in a long-term, stable relationship is the most effective way to raise children. Data seem to support that wisdom. If the author has data to refute that wisdom, let’s hear it. But let’s not pretend there is no argument for supporting traditional marriage.
Darleen Click says: I won’t speak for Marta (though I strongly suspect her answer) but it is society that needs to step up and support traditional marriage, not the feds. Indeed, we’ve seen time and again that when government sticks it fat fingers into social concerns, it makes things worse.
LBJ’s “Great Society” is directly responsible for destroying families – the worse were black families, but whites weren’t spared either.
The bigger the government, the smaller the citizen.
Marta Hernandez says: Yep. Darleen can speak for me any day!
GWB says: not the feds
This post is about an ALABAMA law. No feds in evidence here. So that argument has no bearing here.
As to the gov’t making things worse. Yes, almost always. But the problem here is that gov’t “sticking their fingers in” was NOT in providing some regulation of and protection for traditional marriage. It was when they decided to tear down millennia of tradition and common law that they were actually “sticking their fingers in”.
You tear down the fence at your peril.
Marta Hernandez says: The Alabama law is in response to the 2015 SCOTUS decision. That’s where the feds come in.
“Governmental interests…” So you think of government as a person, with interests that trump rights of actual citizens. That has no stopping point and doctrine subverts liberty.
Same goes for Pigou & Samuelson’s muddled theory of externalities, which economists such as Coase and Cheung demolished (but lives in, sadly). There are infinitely many uncompensated effects in all human action, and treating them as an excuse for govt intervention has no stopping point.
GWB says: How does “governmental interests” equate to “thinking of gov’t as a person”?
Gov’t has interests, because it was formed to do certain things. In the case of our national gov’t we wrote those things down in the Constitution (mostly – some was left in the ideas of common law). A gov’t interest would be in keeping the peace. A gov’t interest would be enforcing justice. Or maintaining the post roads or the patent office. That’s why we can throw someone in prison (remove their right to liberty) for breaking the law.
Gov’t also has interests that are subsidiary to those prime ones – like classified information. The gov’t normally can’t keep secrets – except where it would truly endanger national security. Or where it would expose someone to humiliation or approbation when it doesn’t rise to the level of a crime (grand jury testimony – which would pervert the end of justice).
In our republic, the gov’t interests are assigned by the people. But common law says that certain things are “gov’t interests” by definition (like the first two listed above). Another would be promotion of a healthy society, including marriage.
Darleen Click says: BTW
To what “tradition” was Roberts referring, given that traditions have differed throughout societies over time?
Marriage predates government and has always been about male/female.
And even if “love” wasn’t always the basis of marriages, it has been a romantic ideal that also predates the state – from folklore, oral traditions, to Biblical sonnets and Shakespearean plays.
GWB says: Marriage should be a legal contract between consenting adults
Yes. And No. Part of the problem with our society is the deconstruction of moral truth into mere rational exercise. Marriage exists to extend the family/clan, and as such it requires certain protections. Making it “just another lifestyle arrangement” is a bad idea.
and I would treat it just like any free market issue.
Except it’s NOT a “market issue”. Moral issues is where libertarianism fails – every time. The state MUST be involved in certain moral issues*, and marriage and some family law is one of the largest of those areas. Adultery wasn’t outlawed merely because it was a sin, but because it breaks down the bonds of the family – which are necessary for well-functioning families, which are necessary for a well-functioning society. A contractual arrangement won’t ever have the same strength.
(* ALL criminal laws and many civil laws have a moral basis – whether the moral basis is right or wrong – and arguing otherwise is where libertarianism and rationalism always fall down. We are not automatons, operating under imperturbable mechanical laws of physics, but creatures with hearts and minds (and souls) and any philosophy of government and social interaction must take that into account.
BTW, this is why government should be held as close to ‘local’ as possible. Laws should be passed by those affected by them – your neighborhood and community. Even most cities are too large for the level of granularity at which this should occur. This allows for more variation around the edges of agreed upon morals and things outside the common law and natural law. The items that should be state level are the big things: murder, theft, fraud, and yes, some amount of family law. The things above state level should be interstate issues, national defense, and some level of interstate infrastructure – as the post office used to be.
Note the big things are pretty well covered by that ‘Law-giver’ Moses. Look at the second table of the Ten Commandments, and you’ll find pretty much everything the state ought to be involved in, in terms of morals.)
Oh, and anti-miscegenation laws are a HUGE difference from laws against endorsing homosexual unions. One is a denial of humanity, the other is an acknowledgement that certain arrangements do not a family make.
Look at the categories: people of different sex from any of the human “races” can procreate with each other – as categories – while people of the same sex cannot. As a category, combinations of people who cannot procreate cannot become a family (not in the sense in which the gov’t should be interested).
Note that our Founding Fathers thought that only a MORAL and educated people could maintain a free republic. Human reason alone will lead you astray in the end.
But does the Constitution give the government the right to define relationships between two consenting adults?
No, because that wasn’t within the purview of the national gov’t. Take a look at the 10th Amendment, instead. And every state/colony had laws about marriage, arising out of the common law of Great Britain.
Yep. This is why I don’t find “libertarians” reliable political allies (see Justin Amash).
Great in theory, poor in practice.
GWB says: I find them good political allies when they recognize their limitations. But that does reduce the number of them, unfortunately.
BTW, I find myself libertarian at a federal level, conservative at a state level down to the county and city. I find myself more flexible at the town and community level. It’s much easier to change neighborhoods than it is to change areas or states. And definitely easier than to move to another country.
David Byler says: What does this do to child support issues and to alimony issues? Perhaps these too should be matters of contract prior to recording the marriage.
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