With the Alabama state Senate recently passing SB77, a bill that would end the practice of licensing marriages in the state, many detractors have come out to express their opposition. Interestingly, some of it is not on principle, but what they regard as practicality.

In a recent article, Casey Given, director of communication at Students For Liberty and director of Young Voices, wrote the following:

While leaving the complex matter of marriage up to two consenting adults and their community is undoubtedly the best option in a libertarian utopia, the unfortunate reality is that doing so in the American legal system today would put a couple at significant disadvantage. To be specific, the federal government has a number of tax and entitlement benefits earmarked specifically for married couples, and Alabama’s failure to recognize a couple’s nuptials — gay or straight — could lead to a bureaucratic headache.

Without a marriage license, a couple cannot file taxes jointly, potentially resulting in thousands of dollars each year. Worse, a surviving spouse cannot receive an estate tax exemption or Social Security benefits when their loved one dies. The list goes on and on. Until the federal government recognizes contracts as an alternative to a marriage license, it seems to me that Senate Bill 377’s chances of enactment are bleak.

In other words, the federal government is so deeply entrenched in marriage that we should maintain the status quo rather than fight back for the sake of temporary gain. By doing so we are giving up the freedom of association in marriage for the security of a government tax benefit. Wasn’t there an American who once warned us about making that sort of trade-off?

These predictions don’t reflect how the federal government has treated state marriage definitions in recent years. In the 2013 Supreme Court case U.S. v. Windsor the court ruled that same-sex married couples could receive federal benefits despite the fact that the Defense of Marriage Act defined marriage as one man and one woman.

According to nolo.com, the case involved a same-sex couple residing in New York that lawfully married in Ontario; New York later recognized the marriage in 2008. When one of them died in 2009, the other was preventing from claiming the federal estate tax exemption for surviving spouses because the IRS said the exemption didn’t apply to same-sex couples. SCOTUS overturned this, claiming it violated their civil liberties.

According to www.oyez.org:

The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection (emphasis added).

If the feds actually tried to withhold these tax exemptions for Alabamans by refusing to acknowledge the state’s marriage “contracts,” a federal lawsuit would no doubt ensue, and the legal precedent set by Windsor pertaining to how federal agencies must recognize state definitions of marriage without violating their equal protection under the law tells us how the Court would rule.

Still, the claims about the IRS are also moot. When couples file joint tax returns, they don’t have to provide any “significant proof” they are legally married. True, the IRS checks their Social Security numbers, but this is just to make sure it matches with the SSA; you aren’t required to get a new SS card if you don’t legally change your name to reflect a married status, according to legalzoom.com.

Alabamans could also simply claim status under the state’s common law marriage, which both the SSA and IRS recognize when determining whether people have a valid marriage (SB 377 specifically states that it does not affect common law marriage).

Under Alabama state law, a common law marriage requires three things, according to alabamalegalhelp.com: They must have the legal right to marry; they must intend to be married to the other; lastly, it must be established among the family, friends and the community they are married.

“In Alabama, these three things make you legally married by common law,” according to alabamalegalhelp.com. “The common law marriage is just as legally binding as a ceremonial marriage. It can only be ended by a divorce or by the death of the husband or wife (emphasis added).

Given’s examples of federal meddling into the institution of marriage only adds credence to the astute observation made by Christopher Wesley, an associated scholar at the Mises Institute, who wrote that “marriage is most endangered when it rests in the coercive hands of the State.”

Rather than maintain a “don’t rock the boat” approach, the time has come to oppose the micromanaging of our private lives. Having the government tax people or offer their “benefits” based on whether or not their relationships are recognized by a bureaucratic agency is not only blatantly unconstitutional, but highly intrusive.

As a 2007 New York Times op/ed points out, for centuries marriage was a private contract between two families, controlled by neither Church nor State.

The true “utopian” belief is that a centralized government can effectively decide what constitutes marriage for the purposes of keeping or giving back the revenue of hundreds of millions of people without causing unnecessary political and social feuds.

This unholy matrimony between marriage and government contradicts the basic principles of a free society. All other states should join Alabama and file for a divorce, not just from licensing marriage, but from unconstitutional federal authority seeking to control an institution that existed well before it did and will certainly be here long after it is gone.

TJ Martinell

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