Does Marriage Require a License?
San Francisco Mayor Gavin Newsom ordered the issuing of marriage licenses to homosexuals though the California Supreme Court stopped him. While the issue received tremendous press, all of it was centered on the propriety of homosexuals marrying.
No one has been looking at the marriage license itself and evaluating it on its own merits.
The following article dissects the marriage license, its effect on the couple acquiring it and whether or not a couple needs one to marry.
There is another way.
In the 1800s, when a couple desired to wed, they went before a priest, preacher or other holy man and said their vows. Then they recorded the act in the family Bible.
Thus, it is clear that the modern concept of marriage had religious origins.
What did non-religious people do? Perhaps they lived together, as often they do today. In its simplest terms, marriage was a contract between partners.
Today we have an instrument referred to as a marriage license. Most people in the 1800s and prior to that never heard of such a thing. Yet today, it would seem that a couple must have a marriage license prior to saying their vows.
Has marriage become something other than a simple contract between partners?
The marriage license
What, exactly, is this business of a marriage license? First, in Black's Law Dictionary, Sixth Edition, it is described as follows:
License. In the law of contracts. A permission, accorded by a competent authority, conferring the right to do some act which without such authorization would be illegal, or would be a trespass or a tort. Also the written evidence of such permission.
And, more specifically:
Marriage License. A license or permission granted by public authority to persons who intend to intermarry. By statute, in some jurisdictions, it is made an essential prerequisite to the solemnization of the [particular] marriage [specified in this paragraph].
Intermarry. See Miscegenation.
Miscegenation. Mixture of races. Term formerly applied to marriage between persons of different races. Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to equal protection clause of the Constitution.
These definitions are the same in the first edition of Black's Law Dictionary, 1891. However, the earliest Bouvier's Law Dictionary, 1839, does not contain the last three terms.
Is a marriage license required?
Most would agree that religious people tend to want everyone to live by their rules, their interpretation of the Bible and their ideas of right and wrong. Given that a substantial portion of the population in America has always been religious and has always been dictating the rules, the law, in many respects, follows religious dictums.
The business of a marriage license to legitimize interracial marriage poses a curious thing. If interracial marriage was considered, for whatever reason, to be unfitting, why was it allowed at all?
Since, obviously, it was permitted, noting that there was a license for such a thing, what was the purpose of regulating it? Simply to stigmatize that particular type of relationship? Or was there some other reason?
How is it that any kind of marriage warrants state regulation and taxation (referring to the license fee)? How does the state get involved in what is, or was, a simple contract between partners?
On the surface, marriage is a matter of common right, a contractual arrangement between the two partners, and the business of only the consenting or contracting parties. Is it possible that this idea explains, in part, the source of the concept of the "doctrine of consenting adults”?
Of course, every marriage is different, based on how the partners create it.
In modern times, however, we find that a license is required for any marriage, and yet the definitions of "license" and "marriage license" have not changed. Evidently, the idea of contracts is still alive and well.
So how do we reconcile the idea of the marriage contract remaining solely between the consenting or contracting parties, with the idea of a license that is "evidence" of state permission?
Who’s in control?
Few realize that the license is evidence of a contract between the spouses and the state - a three-way contract - with the state having controlling interest. When a couple contracts with the state, do you think that the couple is in control?
Think about it. If the couple is in control, why is the state involved?
In short, the state controls the marriage and the fruits thereof (children, among other things). We grow up believing, thanks to every authority figure one can imagine, that one gets a marriage license to get married. That's just the way it is done.
Exactly when did this idea take hold?
An educated guess is that governments wanted absolute control over our lives, with marriage representing just one aspect.
Since it would have been difficult in the later 1800s to pass a law demanding everyone get government permission to marry without riling the people, the powers that be took a baby step by regulating interracial marriage - a relationship frowned upon by most. And the original impetus for that was probably religious.
When that small encroachment eventually passed muster, more and more marriages, were surreptitiously included in the mandate until we have marriage licenses as today's standard for marriage.
Operating on disinformation
Hitler said that when a big enough lie is told over a long enough period of time, eventually everyone would believe it. And, sure enough, today we see the amazing phenomenon of homosexual people flocking to sign up for marriage licenses (government regulation) so they can imitate their heterosexual neighbors.
In part, people are simply operating on common misinformation (or disinformation, as the case more likely is), believing that a license is a requirement and that the state has the authority-not right-to control the form, content and fruits of the marriage relationship.
In part, it is homosexuals saying that they want the same so-called statutorily created and regulated rights (or, more appropriately, privileges) that their heterosexual neighbors enjoy and "benefit" from.
Furthermore, it is homosexuals saying that they want their relationships recognized by the state the same as, and having the same weight and value as, their heterosexual neighbors.
Taken together, the last two ideas form the real impetus behind what we are seeing in the homosexual community today.
The state is stealthily encroaching on our very lives via regulation of marriage, as well as other things, and the evidence of that regulation is the license.
We have been told, as well, that one must have a license to drive and that driving is getting behind the wheel of an automobile and motoring down the road.
But when one lifts the statutory carpet and its "legislative history" to see what it is covering, one finds that:
- "traveling" is going from point A to point B via the transportation of the day
- "driving"- a totally different thing - is transportation "for hire," for which one is required to obtain state permission in the form of a license and regulation; and
- for the purpose of traveling in one's "private" automobile on the public roadways in the course of one's "private" business and pleasure, one needs no license (government permission and the evidence thereof) at all.
Once again, the state is stealthily encroaching on our very lives, this time via the supposed regulation of driving, despite the fact that really many licensees aren't driving. In short, we have been lied to for a very long time in a number of ways.
The marriage license and the driver license are only two such examples.
In fact, we pass misinformation and disinformation amongst ourselves as though they were aspirin. Certainly, there are those who know better and who know scams are being perpetrated. But, too often, either they aren't talking or they are disseminating the disinformation.
We've been had.
A benefit begets regulation
Marriage is strictly what the partners define it to be, as long as there is no license in play.
However, once the license is obtained, applied for and accepted (via signature), marriage is defined and regulated by the state. So here are the homosexuals demanding to control their own destinies, to define their own marriages and to obtain the same so-called benefits that their heterosexual neighbors rate.
But it is important to note a legal fact of life that is crucial to this discussion. When one accepts (applies for and obtains) a statutorily created benefit (permission, for which the license is evidence), simultaneously one must accept and abide by the statutorily created regulation that accompanies the benefit.
Control of one's own life and relationships is not compatible with state (statutorily created and defined) regulation. The two cannot co-exist. One cannot be free and simultaneously demand/accept the statutorily controlled and regulated benefit.
In short, one cannot be both a freeman/freewoman and a slave.
Mind you, the average heterosexual is just as blind to the legal principals as the average homosexual. We all have been engulfed in it since birth, and it is high time that changed.
Changing the law
It is possible to force a legislative change of the laws surrounding marriage, but bearing in mind the religious basis of the law-making apparatus, it represents an uphill battle.
And, no matter what the so-called marriage laws were changed to, requesting a privilege (by way of applying for a license) still burdens one with statutory regulation and control - no matter what that regulation and control is.
A benefit begets regulation and control. That legal principle would not and should not change. What is the solution?
Each of us must change his/her mindset and stop asking for the benefit. This is not an easy thing to do, considering that we have been raised since birth always to seek the benefit. That has been designed into society in order to force us into a statutory (contractual) slavery.
One's normal state is freedom. In that state of freedom, only the so-called common law impinges upon us.
That is to say, one can be charged only with a crime wherein there is a corpus delicti: a damaged body, of either property or person. Without very real damage, there can be no crime.
This is known in law as a mala in se crime, a crime in and of itself. The doctrine of consenting adults is in part derived from this idea of "no damage, no crime" or "no harm, no foul."
A statutory crime (such as speeding or not paying auto registration or driver license fees, etc.) is a mala prohibita crime, a statutory prohibition that applies by way of contract.
It should be obvious that the terms and conditions of a contract cannot apply to non-parties. Think about it
No contract, no contractual rules
It is a common belief that we cannot be married if we don't have government's permission, and yet we chafe under government regulation.
Since the rules apply by way of contract, the way around them ought to be rather obvious: Either don't enter the contract in the first place or, if one already is bound thereby, void the contract.
No contract, no contractual rules. Or, to put it another way: In the absence of a government contract, a couple may implement one of their own.
Does one need a license to have a friend?
Isn't friendship also a relationship? So why doesn't one need a license to have a friend?
Indeed, marriage is merely a type of friendship. While a marriage certainly is a bit more involved than simple friendship, it may be wise to implement a (marriage) contract.
But does a couple really need the government's particular contract?
As adults, can we not form our own contracts without permission from, regulation by, and the participation of the state? It ought to be blatantly clear that one does not need a license, state permission and regulation for any personal relationship - at least not if really we exist in state of freedom.
A while back there was a furor over an AIDS patient whose partner was denied access to his hospital room due to lack of a marital arrangement. It had something to do with the hospital's insurance company dictating that only a spouse could be allowed in the room.
It might be interesting to find out the reason for the insurance company's policy on this matter but, in doing so, one tends to miss the point.
We have been trained to react to such a situation by desiring and seeking the "benefit," such as spousal hospital access, that a statutorily created and regulated marriage relationship bestows.
We are being sucked into the statutory maze at every turn. This is but one of many ways.
So, here comes Arnold Schwarzenegger, governor of California, to the rescue.
In the February 21, 2004 edition of the Los Gatos Daily News, in Los Gatos, Calif., an article by Beth Fouhy appeared entitled "Schwarzenegger Orders Legal Action."
The salient paragraph follows:
Our civilized society and legal system is based upon a respect for and an adherence to the rule of law.
‘The City and County of San Francisco's unfortunate choice to disregard state law and grant marriage certificates to homosexual couples directly undermines this fundamental guarantee,’ Schwarzenegger wrote.
‘As Attorney General, you [Bill Lockyer] have the authority to take legal action to require the City and County of San Francisco to comply with the laws of the State.’
There are several things we need to recognize in this paragraph.
- The legal system, being "based upon...the rule of law," is another way of saying that one is ruled by the law (of contract) when one is a party to the contract. Remember the mala prohibita crime?
- As long as one is asking for state recognition, the state has the statutory authority (and duty) to accept or reject said recognition pursuant to statutory rules.
- It is a "fundamental guarantee" that one will be subject to (contractual) law when one enters the contract.
Are you beginning to understand the coded language? Bearing in mind that the governmental legislative apparatus is religiously based, it will be an uphill battle to unseat those forces.
Additionally, it may be that religiously basing legislation is simply a way of slanting or qualifying legislation in such a way that we will accept it along with the accompanying (additional) control of our lives.
Reading between the lines
Whenever one hears politicians espousing religion or qualifying their positions with religious reference, it is likely they are trying to tighten their control over us, and it would be wise for us to pay attention.
In short, the homosexual community's stand is precisely contradictive. They are simultaneously enslaving themselves with government's contract and demanding to be free. They know not what they do.
Their desire to create and control their lives and relationships is entirely positive and appropriate.
However, being unaware of the legal principles stated herein, they misunderstand what they are asking for. They remain utterly unaware of the contradiction.
Freedom means not having to ask the government or any other entity for permission.
Since when does one need permission to form whatever relationship one wants? What exactly is marriage? Literally, it is whatever one wants it to be, just like friendship.
It does not have to conform to anyone's or any society's norm or any religion's so-called (and interpreted) principles. One only need negotiate with one's partner and no one else. It is no one else's business-until one obtains a license.
Is that what we've been told?
Contrary to popular opinion, when one applies for the license, one asks for the state to prescribe the relationship. That is the bottom line. When is one married? How is one married?
A freeman/freewoman declares who and what he/she is and what kind of relationship(s) he/she has.
In essence, standing before priest or preacher or public and stating one's vows is declaring one's (already existing) relationship. Notice that, really, one does not "take" vows; one states or declares them.
To vow is to declare. And declaring is an act of freedom. No outside agency can create a relationship-unless one allows it to by way of contract. In short, the wedding ceremony is (and ought to be) just the public declaration of what already is.
The marriage is created how and when the couple declares it so. "Declaration" is their voice, their word.
When the person presiding over the marriage ceremony pronounces a couple as married, what is his/her authority?
When no license is in play, this pronouncement amounts to no more than "acknowledging" the union, not creating it.
However, when the couple has a license, the person presiding over the ceremony is a state agent (who is also licensed) placing his/her seal thereon, in which case "I pronounce you..." represents a state decree.
Church and state
Doubtless there will be those of religious persuasion who will suggest that a couple must be married "in the eyes of God."
Probably their religious view probably contains the idea that God is omniscient and omnipresent. If so, practically speaking, when and how is a couple ever out of God's view? In that framework, one is always "in the eyes of God," no matter where one is or what one is doing or has done.
Probably those who subscribe to this idea of being married "in the eyes of God" really mean "within the view and according to the mandates of the intercessors," the hierarchy of the church the couple belongs to.
It would seem that this idea is really about corporeal control of the couple's lives, in very much the same sense as state control through the license. The only difference is the particular entity that controls.
In the 19th century and before, the church controlled; today it is the state and sometimes the church as well. Furthermore, church and state are increasingly intertwined.
But no matter what entity is attempting to exert control, free people are self-determining-sovereign. They don't need to ask permission.
More coded language
On August 13, 2004, the article "Homosexual Vows Nullified, Legal Fight Not Over", by Howard Mintz and Thaai Walker, appeared in the San Jose Mercury News. The last paragraph reads:
'We see this as a sanctity and holiness issue, not a civil rights issue,' said David Sawkins, one of a group of evangelical ministers who had threatened a recall effort after the San Jose City Council voted to recognize employees' same-sex marriages.
In an inset above the article, Gavin Newsom is quoted as saying: We decided to challenge the law. We decided more importantly to put a human face on discrimination.
And, in the second inset above the article, California Attorney General Bill Lockyer is quoted as declaring: We didn't pick this fight. I'm not an opponent of same-sex marriages. But I have a duty to defend the law, and so does the court.
One need not read the article itself because these three quotations say it all, and they mirror what I have been saying.
Why, in the first quotation, is the San Jose City Council either acknowledging or failing to acknowledge anyone's marriage? What business is it of theirs?
Bear in mind that this so-called recognition refers to statutory marriages and statutory benefits that apply thereto. Also, it is very clear from the first quotation that religion plays a strong roll in law.
Like it or not, the law-making apparatus always has had a religious basis, and that probably won't change any time soon.
It is likely that that those who wish to enslave us will continue to use the religious underpinning of legislation politically. Sawkins errs, however, in saying that it isn't a civil rights issue.
When religion strongly influences the law, and when the law statutorily controls and permits relationships, his objective becomes a civil rights issue. Why?
"Civil" rights (statutorily created rights stemming from the 1866 Civil Rights Act for subject-class citizens provided for by the 14th Amendment of 1868) are not the same as "unalienable" rights predating, and protected by, the Constitution.
Civil rights were created for a citizenship that did not exist at the time of the enactment; the category of citizens those rights were designed for was created two years later.
And yet, in the second quotation, Newsom says he decided to challenge the law. But why does he wish to change statutorily sanctioned marriage? If the masses really understood what is going on, would they care how government legally construes marriage?
Even if he managed to make some kind of substantive change that allows homosexuals to obtain licenses, has he done a good thing? Or a worthwhile thing? Will people be any freer? Or will government still be dictating what marriage is and granting "permission" for people to enter "privileged" alliances? I wonder if he believes that government should be dictating morals and relationships.
In the context of his comment on discrimination, Newsom seems to be saying that government should be even-handed in its dealings with the slaves (those who procure licenses, i.e., state permission). To be sure, discrimination, in the context of a statutory privilege, is the very definition of a "civil rights" issue.
And then we have Lockyer indicating that, while he's not opposed to homosexual relationships, he is merely defending the law, which indeed is his job.
For those engaging in statutorily created and regulated alliances (activities), he is tasked with "defending the statutory/contractual law", seeing that it is properly administered.
He is saying it like it is. But is anyone listening? Or, more appropriately, does anyone comprehend?
It is noted in the second article that five lawsuits have been consolidated to challenge the constitutionality of the homosexual-marriage ban. Even if ultimately they manage to overturn the ban on homosexual marriage, have they done a good thing?
Or a worthwhile thing? Will people be any freer? Or will they just as surely remain slaves of the system?
It is more likely such a suit is a full-employment-for-attorneys measure, no matter how well-intended.
Instead of pushing legal action, it might be more appropriate for Newsom to explain to people that government cannot and will not make them free, because it is not in the government's interest to do that.
He should be telling people that:
1. government is neither a panacea nor a savior;
2. a license is not a prerequisite for marriage; and
3. people cannot and will not be free as long as they hold those licenses.
On the other hand, what government creates, government can, will and should regulate. The California Supreme Court's recent decision on "Homosexual Vows" should be ample evidence of that.
In the context of homosexual marriage, the best and the single most important thing Newsom can do is to encourage people to get government out of their lives. He should stop wasting time and energy on futile lawsuits and stop encouraging the issuance of marriage licenses.
He should become a teacher and statesman; he should show us the way to freedom.
Accepting the facts
Obtaining a marriage license is not in anyone's best interest – unless, of course, one wants government prescribing one's morals and relationships.
Heterosexuals also should take cognizance of these facts. They don't need marriage licenses any more than do homosexuals.
None of it is about gender or about same-sex relationships; it is about being free, regardless of what religious folk and politicians would have us believe.
Homosexuals are documented in virtually all societies as far back as recorded history. It is likely there have been homosexuals as long as there have been human beings.
Homosexuality has even been documented in animal species. Arguing against homosexuality is like arguing against life. It's completely irrational. Considering that, essentially, there have always been homosexuals, it is likely there always will be. We don't know why.
Homosexuals are people like everyone else. It's about time we became accustomed to that fact.
While the obtaining of a marriage license may appear on the surface to be a breakthrough and a solution for homosexuals, it should be obvious from the foregoing that it is no such thing.
Homosexuals will still be stigmatized by the religious masses, no matter what paperwork they hold. Furthermore, they have opted into statutory/contractual slavery, just like heterosexuals.
In light of this, the problem must be approached from another direction. Opting into statutory/contractual slavery is not the answer.
All of us, homosexual and heterosexual, must opt for freedom. We must stop seeing the state as our salvation, and we must stop seeking government permission for that which is our right.
So why orient this article toward homosexuals?
Currently there are heterosexual couples that have formalized their marriages, and the number is growing every day. Those who are doing so have come to the issue via the patriot (freedom or honesty-in-taxation) movement. That movement began solely with the income tax issue but has expanded to other related matters.
Whether one is considering income tax or traveling in one's personal automobile for personal business and pleasure or getting married, freedom is freedom. Having said that, however, it should be noted that heterosexual couples experience no problem having their marriages recognized, and they have no problem obtaining marriage licenses.
Since heterosexuality is the accepted form of marriage by the “moral” majority, there simply isn't a significant impetus in the heterosexual community to divest themselves of, or do without, marriage licenses that would create a significant enough splash to merit widespread attention - even though the number of heterosexual couples marrying without licenses (and even voiding existing licenses) is growing every day.
In contrast, homosexual couples experience significant difficulty both having their marriages recognized and getting married in the first place. Thus, they have an opportunity to make a sweeping and visible statement regarding marriage.
Bearing in mind that homosexuals created a stir in terms of numbers and publicity during the brief time that Newsome made marriage licenses available to them, think about the statement that could be made should millions of homosexuals throughout the country formalize their marriages without licenses en masse.
If they were to make it publicly known that they are doing so, carefully stating the rationale behind their actions, the impact would be huge. They would be doing themselves, and simultaneously everyone else, a tremendous service.
It is the kind of impact needed to bring home the message to all Americans: that a marriage license is not only unnecessary for marriage; it makes us all slaves.
Furthermore, it would, in turn, bring more people of both persuasions to the freedom movement.
Alan Lewis Painter is a technical writer and editor who has been affiliated with the patriot (freedom or honesty-in-taxation) movement for 29 years.