“Have License, Will Marry” – The Incredible Shifting Ground Under Marriage

This is an extraordinary moment in history,” Gavin Newsom, mayor of San Francisco told a cheering, standing-room-only crowd at City Hall. “I think today, marriage as an institution has been strengthened.

These were the words that rang out from the news coverage but, what does he mean “marriage as an institution has been strengthened”? Is it because a greater number of couples can now be married?

As couples lined up to purchase marriage licenses in California, did anyone bother to ask what this is really all about? The state handing out “permits” to marry is one issue, but the other is: What is marriage anyway?

In the past, you didn’t need a permit (license) in order to solemnize your marriage. A priest or pastor (or civil official) along with two friends or members of the family witnessed the exchange of the couple’s vows. All the parties would then sign a marriage certificate, which constituted proof that a marriage had taken place. The marriage certificate — like any other important document that had public implications — was taken to the courthouse and filed, usually with the register of deeds. But, this activity was only about registering marriages — not getting permission to marry.

In today’s world, as engaged couples prepare to marry, they will find information like this posted on their state’s web site: “The marriage license permits a marriage to take place. The marriage certificate indicates that a legal marriage has been performed.” (This statement comes from the State of Hawaii’s web site.)

Decades ago, state legislatures enacted marriage codes that would require a license from the State in order to be married. There were multiple reasons for this new law, including trying to prevent teenagers from marry. Another purpose was to control who married whom during a time when inter-racial marriage was not allowed in some states.

Marriage certificateIn 1884, the official marriage certificate form in Wisconsin included twenty questions that had to be answered, including “color of the parties.” The form also included questions, like “name of the father of husband,” and “name of the mother of husband,” and likewise for the wife. These questions were asked in order to clearly identify the parties who were marrying.

In 1906, a new ‘model’ law was proposed by the American Bar Association’s drafting arm, the Uniform Law Commission. This law, called the ‘Revised Marriage Code’ prescribed “the manner of contracting marriages” and “providing for the issuing of marriage licenses.”

The ‘Code’ was drafted by the same organization of lawyers that, in 1970, created the blueprint for “no-fault” divorce in this country which overturned a century of law by eliminating all previous grounds for divorce and installing a new ground called ‘irretrievable breakdown.’ The problem with this new term was that it was given no legal meaning by the authors of the new law and the term subsequently slipped into the legal lexicon and found its own definition over time. A Florida Supreme Court ruling essentially said that was “okay” and since then, the term covers a multitude of sins for the person wanting out of the marriage. The marriage-exit is a given for the person filing because the State backs up the person filing by using the state’s police powers if need be.

Another way to say this is that religious authority over marriage was replaced by the State — insidiously and without much outcry. Organizations that lobby for the Catholic Church typically have either been silent on this issue or have gone along with legislation that tightens the grip of the state.

A precedent can be found in 1917 during the Bolshevik takeover in Russia. New law nullified the role of religious authorities in marriage, replacing them with the State. Religious marriages were no longer considered valid. Marriages performed by a civil authority were the only ones recognized that would receive the so-called ‘benefits.’ The corollary of no-fault divorce was Russia’s Post Card Divorce which operated essentially by notification. One party filed and the other received a form in the mail.

The fight over marriage now is centered around the right to get a marriage license. Do we need a “permit” to marry — which puts marriage in the same category as handguns that also need a permit in some states to “conceal and carry.”

How would it look if we eliminated this vestige of state-control over our private relationships? Maybe we need to turn back the clock to the time when marriages were simply registered, and authority was not automatically vested in the state.

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