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|A Dissertation on Marriage
Proposition Eight on the November 2008 California Ballot was for a California Constitutional Amendment restricting
‘marriage’ to a man and a woman. A similar measure had appeared on a previous California ballot and was
overwhelmingly approved. However a panel of judges overturned the voters desires stating that the previous
Proposition was un-constitutional.
This is a Letter to the Editor that was submitted before the November election but was never published (editor’s
Proposition Eight asks the wrong question. Prop 8 asks if anybody can marry
anybody, yea or nay. It should ask: why does anybody require the government's
permission to marry anybody. That is what a Marriage License is. It is the
permission of the government to marry.
It is the same with a Dog License. That is the government’s permission for
you to have a dog. A Barber's License is the government's permission for someone to
cut hair. Nothing more and nothing less. A Dog License says nothing about the quality
or lack thereof that the dog has or needs. A Barber's License does not guarantee the
customer of a decent haircut.
A Government License only says that the government has granted permission for
someone to do something within the limits of the License.
Why is the government’s permission (license) necessary? Only because the
government says it is necessary. Did your great-great-great-grandparents ever get a
Marriage License? Doubtful, since the various State governments only started
requiring them about 1900.
Oh, by the way, it now costs $97.00 to even ask the government’s permission to
marry. That's the current Marriage License fee in Ventura County.
Jay C. Wood, Libertarian
Something not covered in those 197 words is a definition of the word ‘marriage’. The most common dictionary
definitions include something about the civil and/or religious ceremonies which are performed in order for a couple to
be ‘married’. But is it absolutely necessary for a civil or religious ceremony to be performed in order for the couple to
be ‘married’? Also, most definitions assume that the couple is composed of one man and one woman but is that the
only combination which can be ‘married’? Using current definitions, the answer is ‘yes’.
A ‘legal marriage’ is easier to define. This involves a couple appearing before some government official and obtaining
a Marriage License for a fee of course. They then take that document to another official, either governmental or
religious, who performs a ceremony. Then, the ‘marriage’ is recorded on the government books and the couple is
then ‘legally married’.
As an aside, there are three documents which genealogists consider marriage documents. A Marriage License is
issued by the government and shows the intent of the couple to get married. A Marriage Certificate is usually given to
the newly wed couple by the person performing the ceremony. The Marriage Return (usually the signed Marriage
License) is what is recorded on the government books signifying that the couple did indeed get married, where and
when and who officiated and, if required, the names of the witnesses.
Solutions to the current problems are many and varied. It seems that everyone has an opinion one way or the other.
Some are going the legal route and attempting to, once again, invalidate the will of the electorate. The movements to
legally overthrow the passage of California’s Proposition Eight started the day it first qualified to appear on the ballot.
The entire hullabaloo about Proposition Eight and similar proposals is not so much about the definitions of ‘marriage’
and ‘legal marriage’. Underlying the whole controversy and what goes unsaid is not the union between two people,
any two people, but the economic and social benefits, if any, derived from being ‘legally married’.
What also went unsaid in those 197 words and is seldom pointed out is that there are three aspects to marriage.
There is the Legal Aspect, the Religious Aspect and the Emotional Aspect. These are three completely different things
but having a common objective. That objective is to determine what is and perhaps what is not a marriage. What is
permitted and what is prohibited. Marriage has legal consequences. Marriage has religious consequences. Marriage
certainly has emotional consequences.
First, the Emotional Aspect since it existed even before religion or laws and of the three it is the most important.
Ever since men and women found that there were differences between them and that one plus one often resulted in
three or more, couples have wanted to live together and share their fortunes and misfortunes. Even if one plus one
only resulted in two, they have wanted to bond together into a family unit.
There is strength in numbers and two is stronger than one. “Symbiosis” is the result of a mutually beneficial
relationship which results in the whole being greater than the sum of the parts. There is symbiosis in the bonding of
couples. One person’s weaknesses are compensated by the other person’s strengths. One person’s talents are
compensation for the other person’s lack of those same talents.
This dissertation is not an argument for or against the three combinations of two people: man/woman; man/man;
woman/woman. It would be difficult to argue that any two people cannot form an emotional bond that has a
symbiotic strength. There are arguments against man/man and woman/woman ‘marriages’ but the emotional bond
between the two participants cannot be denied. Men have been living with men as a ‘marriage’ unit and women have
been living with women as a ‘marriage’ unit for a long, long time. And this does not even take into consideration plural
marriages such as polygamy.
But there are also man/woman ‘marriages’ that are not religious or legal. A great many couples have
been living together as man and wife without the benefit of clergy and without the permission of the
state. There is probably a couple who are not ‘married’ that you know and you probably don’t know
that they are not ‘married’.
The further back in time you go the more likely you will find couples that were not ‘married’.
Sometimes there were one or two children born before their marriage date. Perhaps the Circuit Riding
Preacher didn’t come around that often.
In the United States, the national government has left marriage up to the various States (Tenth Amendment?). It
wasn’t until about 1900 that the States started requiring the keeping of records such as birth, death and marriage.
Some did before 1900, most didn’t!
There are several reasons why couples choose to live together without benefit of clergy or permission from the state
and a recent one is Social Security. Currently, when one spouse dies the surviving spouse is entitled to either their
own Social Security benefit or the deceased spouse’s Social Security benefit whichever is greater. If the surviving
spouse never had a Social Security Account the possibility exists that he or she would loose significant income if he or
she remarried. Two checks are greater than one even if they have to live ‘in sin’ to get both. Economics is always a
Another economic consideration is the IRS Tax code. In order to determine your income tax based on one “Married,
filling joint” return instead of two “Single” returns, it is required to be ‘legally married’ but there are probably those
who file this way based solely on the Emotional Aspect of their marriage.
In all of the cases of two people living together as a family unit, who is to say that they are not ‘married’? These are
people who have fulfilled the Emotional Aspect of their marriage. They may or may not have had the benefit of clergy
or the permission of the state but who is to say that they are not ‘married’? For all the important reasons, important to
them, they are ‘married’. Religiously? Questionable. Legally? Questionable. Emotionally? No question! They consider
themselves ‘married’ and they are the only ones that really matter. Furthermore, they consider themselves as
‘married’ as any couple who have had the benefit of clergy or have obtained the permission of the state.
Second is the Religious Aspect. As long as there have been religions there have been conditions
that must be met before a couple may be considered ‘married’ by any particular religion. One
condition has been that a ‘marriage’ may only be between a man and a woman.
There is usually some sort of ceremony involved. The actual ceremony varies among the
various religions and within each religion. For the most part, the couple being united in
matrimony are making and exchanging promises to each other. Some ceremonies are huge
affairs with hundreds of people attending. Other ceremonies are conducted in the presence of only the required
people. The simplest would be the couple and the minister, priest, rabbi or other representative of the religion.
Most, if not all contemporary religions and their various denominations, proscribe the ‘marriage’ between a man and
a man or between a woman and a woman. Yes, there are, apparently, religions today that allow a man/man or a
woman/woman marriage. But is it the underlying fundamental religion or denomination that allows such marriages? Or
is it individuals acting in defiance of their own denomination’s rules and regulations?
At various times throughout history some religions have permitted plural or polygamous marriages. Whether this was
some deeply held religious belief or due to some social or economic condition at the time is beyond the scope of this
It is not required to have the government’s permission to be ‘religiously married’ although it may be difficult to
obtain a representative of any given religion to conduct the ceremony. The reasons for that will be discussed under the
Legal Aspect of marriage. Here, it is only necessary to say that the government’s permission is not a religious
There are probably many, many couples living today who have been married in a religious setting without having
obtained a Marriage License from the government. It is possible that they were able to find someone to perform a
religious ceremony either within the rules and regulations of that religion or outside those rules and regulations. It
seems that almost every day we hear of another representative of a religion performing a wedding ceremony without
the permission of the government. Weddings between a man and a man and between a woman and a woman are
possibly being performed without all the publicity attached.
Third is the Legal Aspect. This is the largest consideration and the one with the most impact on our current society.
This is what Proposition Eight and similar measures are all about: the ‘legal marriage’. Prop 8 has nothing to do with
the Religious Aspect of marriage, although there are those who claim it does. It certainly has nothing to do with the
Emotional Aspect of marriage. It only concerns ‘legal marriage’ and its definition.
As said earlier, for a couple to be ‘legally married’ they must first obtain a Marriage License from a government
official. Second, the couple takes that document to either another government official or religious representative who
performs some sort of ceremony and who may or may not give the couple a Marriage Certificate. Third and finally,
the ‘marriage’ must be recorded on the government’s books (Marriage Return). Then and only then is the couple
Each of the fifty States has their own requirements concerning marriage. There are over 3,000 Counties within the
fifty States and the requirements may vary among the Counties, even Counties within a State. It was not that long ago
that some States required a blood test before obtaining a Marriage License (some may still have that requirement).
A ‘legal marriage’ and its associated documents are often referred to as a Marriage Contract.
For all intents and purposes it is the same as almost any other formal contract. It is entered into
voluntarily. Each party brings something to the marriage. Vows or oaths are freely and publicly
exchanged. A document is signed by all parties to the contract including the legal representatives.
The signed Marriage License must be returned to the issuing office and entered into the
government’s records. The penalties for breaking the contract by either or both parties are
severe. Either or both parties may sue or be sued in a court of law for the breaking of their
Marriage Contract, one result of which is called Divorce!
Another requirement that is little known is that the person who signs the Marriage License as the person performing
the ceremony must also be licensed by the State. That ‘license’ may be implicit in the duties of a government official
For a representative of a religion to perform legal marriage ceremonies they first must, in most cases,
satisfy the requirements of their religion to perform religious marriage ceremonies. They then apply to the
State for a license. They may be issued a license if they meet that State’s requirements. This may not be
true in all States but it certainly is in most of them.
There is no difference in the legal status of the marriage because of who conducts the ceremony and signs the
Marriage License. Either a government official whose duties include performing legal marriages or a religious
representative who is licensed may sign the Marriage License. However, without a valid signature, the ‘marriage’ is
not ‘legal’ and the couple may not claim married status in any of their social or economic dealings.
In the case of a government official conducting a legal marriage ceremony, that person is acting solely as a
government official with no religious implications. That person cannot also act as a religious representative unless they
also meet the requirements and approval of their religion to conduct religious marriage ceremonies.
In the case of a religious representative performing a marriage ceremony, that person is acting as both a religious
representative and a legal representative. However, it is important that a distinction be made that these are two
completely separate representations. It is not a requirement that a religious representative be licensed by the State to
perform a religious marriage ceremony. It is a requirement that a religious representative be licensed by the State to
perform a legal marriage ceremony.
Potential changes in the definition of a ‘legal marriage’. Let us assume for the moment that the ‘legal marriage’
requirements are changed. The law would allow man/man and woman/woman
‘legal marriages’? Does this insure that such marriages would also be
emotional marriages? No! Does this insure that such marriages would also be
‘religious marriages’? Absolutely not!
Would such a change also require that any and all persons licensed or otherwise authorized to perform marriage
ceremonies and sign ‘legal marriage’ documents as the official conducting such ceremonies, be required to perform
ceremonies for any and all couples requesting their services? Currently, no but that could change. If that change
occurs there could be a lot of religious representatives refusing to conduct any such ‘legal marriage’ and turning in
their License. They could tell the couples to first go to a government official who will conduct the legal marriage
ceremony then come back and have a religious marriage ceremony. There are those who would applaud this further
separation of church and state.
Other than emotional considerations and religious considerations, why would any two people want to be ‘legally
married’? It is not necessary to be ‘legally married’ for a couple to be emotionally married. Religions have restrictions
against man/man and woman/woman religious marriages, but those restrictions do not prevent the couple from being
Practically all if not all the arguments for a man/man or a woman/woman ‘legal marriage’ are economic. Two have
been mentioned before: Social Security benefits and Income Tax filing status.
Another argument used in favor of man/man or woman/woman ‘legal marriages’ is the employment benefits
available. However, any benefit gained or lost because one person has or does not have specific employment is
between that person and their employer. A single person has the same argument: why does a single person receive less
‘pay’ for doing the same job as a ‘legally married’ person does because benefits are extended to the married person’s
spouse? These are not marriage questions but economic and legal questions that have very little to do with marriage,
legal, religious or emotional. There are those who would applaud the incorporation of these economic requirements
One problem with current stop gap measures is that there are no or very few contract provisions involved. There
should always be a binding contract between the parties involved in a legal marriage. Each must enter the union
voluntarily. Each must bring something to the union. A legal ceremony must be performed during which vows or
oaths are freely and publicly exchanged. A document must be signed by all parties to the contract including the legal
representatives whether government official or a licensed religious representative. That document must be returned to
the issuing office and entered into the government’s records. Either or both parties may sue or be sued in a court of
law for the breaking of their Marriage Contract.
Sooner or later, proponents of same sex marriage will realize that their complaints are aimed in the wrong direction.
The ‘church’ is not their enemy! The proponents are not trying to change a religious marriage. Or are they?
Nor are the voters their enemies. The voting population is voting according to their principles. Give them something
they can vote for and not vote against.
Again, there are three aspects of marriage: the Emotional Aspect, The Religious Aspect and the Legal Aspect. Some
of the Emotional Aspect must already exist between the couple, any couple, wishing to be ‘married’. Maybe it is not
fully developed but there must be something emotional there to begin with.
Proponents of same sex marriage must recognize and acknowledge that it is not necessary for all couples to have a
licensed religious representative perform the ceremony. They should not spend time trying to change the Religious
Aspect of marriage. Religious convictions about marriage are deeply rooted and to argue against them is an exercise in
Only one of these three aspects of marriage would require change to allow same sex
marriage: the Legal Aspect. Proponents of same sex marriage should not attempt to change
the current legal system to fit something that government, the voters and their
representatives will vote against. Any Legal Aspects of marriage can only be changed when
the government, the voters and their representatives are presented with something they can
vote for and not against.
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