Conservative Oklahoma politician wants to end government marriage licenses

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This story reports about a conservative Oklahoma politician, an Assemblies of God pastor, who has introduced a bill that would end government marriage licenses. Marriages certificates would be signed by a religious official and then filed with the county clerk. For nonreligious marriages, people would file affidavits of common law marriage.

Here are more details:

The Cordell Republican says he wants to protect court clerks from having to issue licenses to same-sex couples. He doesn’t want these workers put in the position of having to condone or facilitate same-sex marriage.

Under his plan, a religious official would sign a couple’s marriage certificate, which would then be filed with the clerk. Marriages would no longer be performed by judges. If a couple did not have a religious official to preside over their wedding, they could file an affidavit of common law marriage.

“Marriages are not supposed to be a government thing anyway,” he said Wednesday.

Russ, a credentialed Assemblies of God minister, is upset with rulings that have supported same-sex marriage.

“There’s a lot of constituents and people across the state who are not through pushing back on the federal government for the slam down they’ve given us with Supreme Court rulings,” he said.

Same-sex marriage became legal in Oklahoma in October. That’s when the high court declined to review a federal court decision striking down a voter-approved ban on the practice.

My quick thoughts: this proposal does not “get government out of the marriage business.” Marriages must still be filed with the government. Would this plan help protect marriage as an institution or not? I don’t know if it would have much effect at all except on county clerks.

Any thoughts from M* readers?

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About Geoff B.

Geoff B graduated from Stanford University (class of 1985) and worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. He has held many callings in the Church, but his favorite calling is father and husband. Geoff is active in martial arts and loves hiking and skiing. Geoff has five children and lives in Colorado.

34 thoughts on “Conservative Oklahoma politician wants to end government marriage licenses”

  1. It seems to me that if you are getting rid of marriage licenses, you’re getting rid of statutory marriage altogether and going back to the way it used to be where ALL marriages are common law marriages. IF this is the case, then this affects more than just the county clerks. This changes the entire relationship between the State and the married couple and their offspring. The State would no longer hold the superior party of interest in the marriage and it’s fruits as it does currently.

  2. Since the State mandates that any sort of union, formalized or casual, is equally legitimate, I fail to see what difference this legislation would make. The basis for “marriage equality” seems to be whatever parties may profess “love” for each other. Regardless of however the term might be defined.

  3. Because we don’t have established religion, government is really the only entity that can defend the core structure of the marriage institution on a societal scale. Marriage fulfills a societal purpose (apart from spiritual/emotional/psychological purposes) in incentivizing men to stay with the women they impregnate and the children they create, and in maximizing the likelihood that children will get to grow up with their mom and dad.

    If we abandon civil marriage, we’ll be protecting the interests of county clerks at the expense of millions of children who will be born outside religious households (or outside other households with unusually strong norms). That’s not fair, at least while we have some chance of healing the institution. For now, believing county clerks should resign (or capitulate). We can’t give up yet.

  4. Parents should be held accountable for their behavior with respect to the children they invite into their households, whether by biological processes, adoption, or some combination thereof.

    I think the proposal to do away with civil marriage to allow clerks to avoid having to document marriages they don’t agree with would be a terrible step. What if they were objecting to marriage between a Christian and a Muslim? Marriage between a Mormon and a non-Mormon? Marriage between their ex-lover and someone other than themselves?

    I can imagine clerks being given a chance to recuse themselves from performing ceremonies they find troubling. But it’s actually cleaner for them to step down from being a county clerk, rather than merely recusing themselves and possibly risk being sued if a couple finds themselves unable to find someone to perform a marriage that should be legal in the eyes of the state.

  5. That is an interesting proposal, and one that does not make me shake my head. I wonder how far it will go in the OK legislature.

  6. Children are protected by government, even if a marriage has not been performed. Today, many couples live together without marriage and have children. The men are still required to provide for the child. So, I do not see a need for government to be in the marriage business, as long as they ensure children are provided for by parents.

  7. The possibility of identifying the father of a child by means of technology as in DNA testing has a profound implication for scion rights to the financial support of parents. Previously there was no sure way to link fathers with children. A man simply had to trust his wife. Legal marriage has meaning and utility beyond ensuring the legitimacy and support of children, however many of the functions of marriage can be covered by various contracts. From ‘jumping the broom’ to elaborate parties costing millions of dollars, marriage no longer implies permanence and various forms of common law marriage are favored by some aspects of our modern culture. Although people may talk of disowning a child, parenthood is the one relationship that remains in force as a biological fact. I find it sad that an extremely small minority has driven those concerned with laws governing marriage to such extremes. I have had occasion to contrast the very different divorce laws of New York and California. They reflect very different attitudes toward marriage but both states promote the necessity of providing support for children. Perhaps if civil licences were issued for ‘intent to parent’ and the association of individuals as partners was treated separately as either a religious or civil agreement those county clerks could keep their jobs.

  8. My prediction somewhat coming true, that one day we would do away with civil marriage completely. As pointed out by Ram, we already have laws that protect children. And if men and women want protection, they would be free to contract as they saw fit, without government intrusion. Having said that, I am sure church leaders don’t want to throw the baby out with the bath water. FWIW – I am an elected official sworn to uphold the laws of my state and country. I average about 10 marriage ceremonies a month. I live in a state that does not currently allow SSM, but I predict the S.Ct. will force it on the states. I wrestled with the notion that I will, in all likelihood, have to perform SSM’s one day. So far I have been able to separate my personal beliefs from my public responsibilities. But the day is fast approaching when I will have to grit my teeth and make some hard decisions.

  9. The url for the bill’s page on the Oklahoma State Legislature website is http://www.oklegislature.gov/BillInfo.aspx?Bill=HB1125&Session=1500.

    There’s a certain logic to what the bill tries to do (if government grants a “license” to do something, it follows that there is no individual “right” to perform that activity; so ending the licensing of marriages is a logical conclusion of judicial holdings to the effect that marriage is a “right”; and I know some judges in Utah who flat-out refuse to perform marriages now because they fear they could lose their jobs if they refuse to solemnize a gay wedding).

    That said: I don’t see a difference in the moral quandary faced by a county clerk issuing a marriage license versus a county clerk recording a marriage certificate; so I don’t see how the bill helps. And the text of the bill strikes me as a little sloppily written.

    (Interestingly, existing Oklahoma marriage law specifically states that marriages performed according to LDS, B’hai, or Quaker rites are valid under state law.)

  10. I have seen some stupid things out of politicians but, this bill that Russ is filing stands head and shoulders above any I’ve read! What a waste of my tax dollar! All to deny a group of people equal rights. People who have not done anybody harm, and just want to live with someone they love within the bonds of marriage. This is why marriage should be a government “thing” and not be left entirely to religion. Isis is driven by an extremist form of a religion. It always surprises me when a “man of God” who claims to follow Christ, can show so much hate to someone he doesn’t agree with. The bottom line is, we are not God, we should let Him do the judging because we have all we can handle to take care of our own sins!

  11. Gae Hill, don’t give me that bull. Marriage by the State has become nearly meaningless these days. Do you know how many people even get married these days? Do you know how many of those remain married? Less than half. That “gays” can now gain the title of “marriage” only proves it has no meaning besides a piece of paper with some official signatures. Its time for marriage to go back to what it used to be; a religious ceremony or social contract. I could care less about the “rights” of a preposterous abomination against God and nature.

  12. Wow! But of course there is no animus involved! Jettboy you really despise gay people, don’t you?

  14. Gae Hill’s comment is ridiculous, and Jettyboy’s comment is not much better (and not helpful to his cause either). And Kay, filled with hate for religious people (so much so that she continues to hang around a religious blog so she can continue to hate), accuses Jettboy of being filled with hate (without noting the irony).

    So it goes in these last days.

    I have kept these comments for now but I would appreciate if people would stick to the subject, which is: what do you think of this proposed law?

    Don’t make me use that “delete comment” key.

  15. I don’t hate gay people. I do hate the gay lifestyle. Since many supporters of the lifestyle can’t divorce from the people, then what can you say? I still think gay marriage and lifestyle is exactly what I said.

  16. Common law marriages are just as ‘legal’ and ‘legitimate’ as statutory marriages. The main difference is that in a statutory marriage, the State determines the terms of the contract and it is a contract between the two people and the State with the State being the ‘superior party of interest’. Why anyone would want the State determining the terms of the contract (non-negotiably, by-the-way) between themselves, I will never understand. A marriage should be between the couple and God only. But I guess these days, for most people, the State IS their God, so I guess it does make some sort of perverse sense.

  17. Aaron – my state does not recognize “common law marriages.” In fact, I think only about 8 states recognize common law marriages at present.

  19. No, marriage is not between the couple and God only. It’s a building block of society. Confusion on that point is a calamity.

  20. Aaron from the link “To state the point most clearly – “not recognized” does not mean, “invalid”. It may be semantics, but “not recognized” means no civil effects flow from the union. In other words, it’s as if the parties are not married and never were married. I understand what he’s trying to say, but he’s misreading Meister. (This sounds like the same guys who argue that we shouldn’t pay federal taxes. I wouldn’t follow the legal advice of these guys.) “The Court noted that a Statute can explicitly ban common-law marriage and require that all marriages be solemnized (kind of like how the Statute of Frauds requires some contracts to be in writing). However, if the State doesn’t specifically forbid common-law marriage, then it is permissible. The basic rule is that if the State does not say ‘no’, then common-law marriage is available. Today, 3/4th of the States do not permit common-law marriage, and have explicit Statutes against the practice.” The distinction is essentially meaningless. Go to a non-common law marriage state and apply for spousal benefits and they will look at you like you’re crazy. File suit in the courts to have your “common law marriage” recognized as valid and you’ll be tossed out on your ear. Sure, parties can “contract” in just about any way that is not contra bonos mores (against public morals), but I wouldn’t exactly call it a “marriage,” much less a marriage which is “legal and lawful.” Watch out Law of Chastity!

  21. And, FWIW – there wouldn’t be a need for laws legalizing SSM if the position taken in the article was “correct.” Plus, plural parties could contract among themselves (engage in polygny and polyandry) and then claim to have separate and distinct marriages and sue to have each of them recognized. I’m all for the concept of common law marriage in those states that do recognize it as an option, but for those contracted without some type of state recognition, I think we would run afoul of the Law of Chastity as it exists today.

  22. The guy who wrote that article has actually performed common law marriages including same sex common law marriages. I personally don’t believe a common law marriage runs afoul of the Law of Chastity, and I personally know someone who was sealed in the temple who was not married under a licence.

  23. Yea – as I suspected, on the left hand side Mr. Champion links to articles debunking the federal tax system. Caveat emptor.

  24. Have you actually read his book, Income Tax: Shattering the Myths? He’s been living successfully as a nontaxpayer for 20+ years now and I guarantee the feds would have gone after him by now if he was incorrect. They HAVE gone after many others in the Tax Honesty Movement who were not correct in their views. The only thing they’ve been able to do so far is get the government to stop him from helping others live as nontaxpayers. I also know several other people who are successfully living as nontaxpayers using the information in Dave’s book. I personally, am not doing it, but only because I work for an employer who will not allow me to work without signing a W-4. If I ever become self-employed, I will most definitely be living under my correct legal status of nontaxpayer.

  25. Geoff,

    I think that this is an interesting topic, and while I haven’t read the bill, the description in the OP makes me think that the shift would be from having the state license the marriage (with all that setup implies, or could involve) and puts the county clerk in the position of simply recording notice of an already accomplished act, much like they do with respect to land ownership, and perhaps with the same sorts of protections.

    In most states, if not all, you can purchase land without recording your deed. You don’t need the county clerk where the land is located to bless your transaction by recording it before it becomes official. However, you record the deed to put everyone else on notice that you now own the land, which is useful in a number of situations. For instance, if you want to buy a specific piece of land, you want to know that you are dealing with someone who has the right to actually sell it. If the person trying to sell the land is not the person who appears to own it from a search of the recorded documents, you need to be a bit more careful. Likewise, if you buy land from someone and don’t record, there may be a situation where the previous owner may try to sell that land again to a second buyer. In those situations, some states favor the person who records first over the person who purchased first.

    Similar conditions may impact marital issues. It seems under the proposed scheme, the filing of the marriage certificate is merely to put the public generally on notice that you are your spouse are, in fact, married. Anyone questioning that fact (IRS, insurance providers, probate courts) could take a recorded certificate as prima facie evidence of marital status.

    I am curious whether or not the bill would alter the divorce laws. It wouldn’t necessarily have to do so.

  26. One additional benefit to the scheme may be that it frees Oklahoma from having to define what marriage is for all purposes. Federal agencies, insurance companies, religious organizations and other states could theoretically examine the certificate and decide whether or not the union represented met their individual standards for what constituted a marriage. This would put the onus on the individuals entering into a marriage to be sure that they public record was sufficient so that they could accomplish what they wished to accomplish by the recording of the union.

  27. I’ve long advocated moving in the opposite direction of what this legislator proposes, e.g., get churches out of the legal marrying business. For “us” that would mean couples could be sealed only after a legally recognized marriage had taken place *AND* all requirements of the LDS Church had *also* been met. This allows the Church to completely control the requirements for temple sealings.

    Having the state set the terms for marriages has value in terms of the defined legal obligations of spouses and parents. Keeping the state involved as the final arbitrator keeps everyone on the same legal page. Having the Church be a *separate* arbitrator of worthiness to be sealed is very valuable. (In my opinion.)

    This also has the advantage of freeing bishops from having to deal with being asked to marry couples in situations which conflicts with Church doctrine. LDS bishop would no longer be in the marrying business.

  28. RE: Aaron “. . . and I personally know someone who was sealed in the temple who was not married under a licence.”

    Interesting, I wonder if their bishop and stake president knew of the “non-legal/common law” status? It directly contradicts LDS Church policy on common law marriages. Missionaries routinely have to deal with people living together without the benefit of legally performed marriage, the Handbook is clear that such couples must first be *legally and lawfully* married before they can be baptized.

  29. I have to confess I’m really, really sympathetic to just getting the state out of marriage entirely. I just don’t buy the attempts at utilitarian like calculus of the benefits of the state promoting marriage because I think one quickly ends up having to adopt gay marriage from that sort of calculus for several reasons. First off you have things like the conservative case for gay marriage noting that it would reduce promiscuity, bring stability, and provide more stability for children. Further as Nate Oman noted a major issue with law is in dealing with children after breakups of a marriage or relationship. That provides a compelling reason to formalize relationships and their end. Even if you think the ideal situation of marriage of a man and a woman should be promoted you have to deal with the inclusion into your calculus of the many (probably majority) of relationships that are far from ideal. Pushing the ideal case really avoids that.

    By separating marriage from the legal issues it seems that Christians can maintain the sanctity of the rites and relationships they want while maintaining pluralism (there’s plenty of religions including mainline Protestants that do gay marriages). The state can do it’s thing on its own.

    Hopefully this move by Oklahoma catches on. It seems like it resolves most of the problems.

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