The U.S. Supreme Court heard arguments this week related to California's Proposition 8, an initiative of California voters to limit marriage between a man and a woman. Considering Hollywood's high commitment to traditional marriage, passing this initiative was some achievement. Regardless of how the U.S. Supreme Court eventually rules, we all know the matter will not be settled any time soon.
One reason this remains a thorny issue is our national reluctance to ask the prior question. On what basis does the state claim the power to grant a license (Read: permission) for any person to marry? What compelling interest does the state have in defining marriage? Further, is contracting in marriage a matter to be conducted between private parties without government involvement or interference?
Historically, European monarchs required their nobles to obtain a royal license prior to marriage. Kings did not want powerful noble families to pyramid their strength through marriages. Likewise, the lord of the manor gave license for his serfs to marry. The ruling elite knew that the power to license the marriage of their subjects preserved the prerogatives of the nobles.
In addition to political concerns, there were religious interests as well. The Book of Common Prayer of 1571 lists 50 prohibited marital partnerships. This list of prohibited unions was based on the holiness code found in Leviticus of the Bible. The argument was that since England was a Christian kingdom, unions excluded by holy writ was also the law of the land. The established Church in union with the Crown enforced these rules. This also meant that Anglican clergymen were prohibited from conducting weddings for divorced persons.
The idea of the state granting permission, warrant, or license for persons to enter into a marriage contract proceeds from the political theory that all power rests in the Crown. The Crown may grant permission to its subjects as it wills; however, any activity not expressly granted by the Crown is prohibited. This doctrine is alien to a secular republic. U.S. political theory holds that all power resides in "we the people" and that powers not expressly granted to the state by the people reside in the people. This is what is meant by the term "limited government."
What is the role of the state with regard to marriage? There was a time when it was unlawful for a free man to marry a slave. Interracial marriage was prohibited as well. We should consider that the state has no more right to prohibit marriage between persons than it has the right to prohibit persons from buying a Buick from an auto dealership. The state does not grant permission to buy a Buick, it simply records the sale, checks the title to prevent fraud, and collects the taxes.
The power of the state is used to enforce a contract by requiring the party who breaches the contract to make the victim(s) whole. Yes, we are all concerned that all marriage contracts are honored; however, the state does not have a compelling interest in who marries whom, what brand of motorcar I purchase, or where I may buy land.
The U.S. Supreme Court should rule that the state is properly limited to recording marriages in the same way county clerks register land deeds and courts demand integrity in all transactions. The state should not act prior to the fact by denying a license. The state must act subsequent to covenanting the contract to ensure that spouses and offspring have their interests protected as defined by contract.
C.D. Chamberlain lives in Spring Hill.