JEFFERSON CITY, Mo. (Dec. 8, 2017) A bill prefiled in the Missouri House would replace marriage licenses in the state with “contracts of domestic union,” effectively nullifying in practice both major sides of the contentious national debate over government-sanctioned marriage.
Rep. T.J. Berry prefiled House Bill 1434 (HB1434) this month. The legislation would amend current marriage-related state laws by replacing marriage licenses with “contracts of domestic union.” In practice, the state’s role in marriage would be limited to recording marriage contracts entered into by consenting adults or with parental consent if under the age of 18.
The proposed law would change all references un/married persons in state law to those “not party to a contract of domestic union” and swap all mentions of “marriage” with “contracts of domestic union.” Further, it removes a section of state law that specifically defines marriage as a union between a man and a woman and that prohibits same-sex couples from receiving marriage licenses.
Two people wishing to enter into a domestic union would only need to submit a contract to their county’s recorder of deeds that includes their names, a statement they are legally authorized to enter into the contract, and their signatures. The contract is considered valid the date it is executed. Although a civil or religious ceremony is still permitted, it is not required to make the contract valid.,
However, HB1434 would still retain certain restrictions such as those under the age of 15, as well as a continued prohibition on incest and bigamy. Common law marriages would also remain illegal.
Although some may be inclined to oppose the elimination of state law championing traditional marriage, this would nevertheless be a return to the traditional Western custom in which the state had little to no involvement in marriage, even though it was a legal contract as well as a religious institution.
Marriage in medieval Europe technically fell under the legal jurisdiction of the Catholic Church, with priests officiating weddings at the door of the community church. However, it was ultimately a private arrangement that did not require a third party in order to be considered legitimate.
In “The Middle Ages: Everyday Life in Medieval Europe,” Jeffrey Singman writes that proposed marriages were announced at the parish church of both persons for three Sundays, but this was in order to ensure problems such as preexisting marriage agreements did not arise. Still, “not every marriage followed these formalities.”
According to canon law, marriage could be contracted either by a vow of marriage expressed in the present tense or by a statement of future intent to marriage followed by sexual consummation. The latter sort of marriage in particular could take place without the participation of church or community. Such marriages were illegal, but not invalid; the although the couple might be prosecuted in the church courts, they remained legally marriage.”
In fact, state marriage licenses were initially used as a way to prevent interracial marriages. As a 2007 New York Times op/ed points out, licenses later 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.”
In a modern political context, HB1434 would be a step toward reducing the state’s role in defining and regulating marriage, which has become a contentious issue and places a burden on government officials torn between the legal requirements of their jobs and their personal religious convictions. By limiting the state’s role in marriage, the legislation would allow Missourians to structure their personal relationships as they see fit without interference or approval from the government.
Something rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a person requires government permission before getting married. In America, people generally cannot drive a vehicle without a license. People cannot practice law without a license, nor can they provide medical care. Put another way, under a licensing scheme, marriage is not a right, nor a religious institution, but a privilege granted by the state and limited by its requirements.
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.”
Constitutionally, marriage is an issue left to the state and the people.
Removing state meddling in marriage would render void the edicts of federal judges that have overturned state laws defining the institution. The founding generation never envisioned unelected judges issuing ex-cathedra pronouncements regarding the definition of social institutions, and the Constitution delegates the federal judiciary no authority to do so.
HB1434 will be officially introduced after the regular session begins Jan. 3. At that time, it will be referred to a committee where it will need to pass by a majority vote before moving forward in the legislative process.
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