Gay Marriage, Legally Speaking…Part I


by Patti Thornhill

With Illinois becoming the latest state to legalize gay marriage, I’d like to take a minute to explain how the law actually applies to this whole gay marriage thing. Interestingly, it has nothing to do with religion; we are strictly talking United States statutory and common law here.

First of all, I think it bears asking: since why is the government involved with licensing private relationships after all? In the United States there were two basic reasons that the state started marriage licensing. First, it was started as a device to keep different races from marrying each other. Thus, it was a mechanism of state control over private behavior. An unlicensed marriage was considered “illegal.” Licensing gave the government jurisdiction over marriages. Thereafter, the states decided to require licenses for all marriage, since it was by then well known that this was a new source of revenue for the state.

Since marriage is licensed, it has a legal status that is recognized through the mechanism of the state. It is in the same category as business licenses, driver’s licenses and professional licenses. The very fact that marriage is a licensed status means that it is not an inherent right — if it were an inalienable right, there would be no need for licensing. For example, one needs a license to practice certain trades, but one does not need a license to practice one’s religion. The first is a privilege bestowed by a state mechanism and the latter is an inherent right.

Black’s Law Dictionary defines “license” as, “[t]he permission by competent authority to do an act which without such permission…would be illegal.” The authority to license implies the power to prohibit.

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