Oklahoma Bill Would End Marriage Licensing, Nullify Federal Control in Practice

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A bill filed in the Oklahoma House would end government licensing of marriages in the state, effectively nullifying in practice both major sides of the contentious national debate over government-sanctioned marriage.

Rep. Todd Russ (R-Cordell), filed House Bill 2235 (HB2235) for introduction on Feb. 4. The legislation would end the issuance of state marriage licenses. Instead, the state would record certificates of marriage after a marriage has contracted by a formal ceremony solemnized in front of at least two witnesses. Marriages not contracted by a formal ceremony would be acknowledged by filing an affidavit of common law marriage with the court clerk.

The bill would replace all references to marriages “licenses” in state law with “certificates.” The legislation would not invalidate any marriage licenses issued prior to the bill being passed.

PRACTICAL EFFECT

HB2235 would accomplish two things.

First, it would render void the edicts of federal judges that have overturned state laws defining marriage. The founding generation never envisioned unelected judges issuing ex-cathedra pronouncements regarding the definition of social institutions like marriage and the Constitution delegates the federal judiciary no authority to meddle in the issue. Marriage is a realm clearly left to the state and the people.

Second, the bill would get the state government out of defining marriage entirely as well, ending the squabble between factions that seek to harness the power of the state, thereby taking the burden off government officials who may be torn between what is legally required of them and their religious convictions.

The intent or motives behind this bill are a moot point. By removing the state from the equation, no one can force another to accept their marriage, nor can they force another to reject that person’s own beliefs regarding an institution older than government.

“Licenses are used as a way to stop people from doing things,” said Michael Boldin of the Tenth Amendment Center. “My personal relationship should not be subject to government permission.”

HISTORICAL BACKDROP

As a 2007 New York Times op/ed pointed out, for centuries marriage was a private affair.

“For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. 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 fact, the use of state marriage licenses for many years was a way of preventing people from entering into interracial marriages. Later, the NYT story recounts, the licenses became necessary in order to subsidize the welfare state.

“The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.”

Something that is rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a citizen requires the permission of their government before they can get married. A person cannot drive a vehicle, aside from limited circumstances, without a license. A person cannot practice law without a license, nor can they engage in medical care.

Put another way, marriage is not a right or a religious institution, but a privilege the state grants us if we meet the conditions put upon us.

Consider this: In the same way a driver can lose their license if they break certain traffic laws, a man or woman, theoretically, could one day find their marriage license revoked for breaking certain “marriage” rules, whether it pertains to child rearing or their religious and political convictions.

Christopher Wesley, an associated scholar at the Mises Institute, wrote that “marriage is most endangered when it rests in the coercive hands of the State.”

WHAT’S NEXT

HB2235 will be officially introduced when the Oklahoma legislature convenes on Feb 4. At that time, it will be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.

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