Thread: Gay Marriage, Legally Speaking…Part I

Gay Marriage, Legally Speaking…Part I

Posted by Patti Thornhill on Dec 3, 2013

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.

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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.

When courts declare that homosexual marriage is a right, they are making declarations that are contrary to historical law and the Constitution. They are also establishing a very dangerous precedent on many levels, including one that could be detrimental to the very people who seek the state’s recognition of their gay union.

When jurists declare that homosexual marriage is legal because it is a civil right, not only could they not be more incorrect, but they are opening a Pandora’s box that can lead down a “slippery slope” that many advocates of gay marriage might not be aware of and certainly of which they would not support.

There is also an issue regarding the Full Faith and Credit clause. That clause states that contracts (licenses) that are valid in one state have to be considered lawful in all states. If the states want to make gay marriage legal, the appropriate legal path would have been to amend the Constitution to create an exception to the Full Faith and Credit clause to allow gay marriage to be decided on in a state-by-state fashion. However, the clause has been ignored, resulting in a patchwork system of statuses that are legal in some states and not legal in others. What ensues from this sort of legal application is chaos at any level where marital status is at issue. This was never the Framer’s intent.

The fact is, because of the way our common law system works, once gay marriage is ruled a “civil right,” then all unions between adults will have to be regarded as a civil right as well. You simply cannot say that gay marriage is a civil right without regarding other adult unions as such as well. Thus, once the precedent is established, the next adult union that will also have to be recognized by the state with a license will be polygamous marriage. There will be no way to stop it because competent adults cannot be allowed to marry someone of the same sex while disallowing multiple competent adults of any combination the right to do the same thing. Incestuous marriages will likely follow, although the state might be able to prevent this on the basis of an overriding concern with the genetic effects on offspring of such a union.

Most Americans don’t care what consenting adults do when they are alone, but they feel nevertheless that something regarding the gay marriage issue is just not right. They just can’t put their finger on it.

Stay tuned for Part II – The Law of Gay Marriage and the “Slippery Slope.”



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