How the Religious Right is driving towards the demise of the traditional definition of marriage in the common law

Posted on June 30, 2015


As the whole world has probably found out by now (at lease everyone who cares), last Friday the Supreme Court of the United States legalized same-sex marriage across the board in the United States with their landmark decision in Obergefell v. Hodges.  This ruling has been celebrated across the country by the majority of Americans, who thought it was a good idea.

Since then, a host of sour lemons have been hurled at the victors in this civil rights battle, such as this essay in Time Magazine by Rand Paul.

Ironically, Rand Paul doesn’t actually come out and say he disapproves of same-sex marriage. What he objects to, apparently, is letting the government be involved in the marriage business at all, as if that would actually prevent the redefintion of marriage. News flash, Senator: the shifting of social mores in this country is what drove this, and if anything, government has been the tool used by the conservative right to slow or stop it.

So now, in a move Senator Paul thinks is good on libertarian grounds, a number of counties across states like Alabama and Texas have stopped issuing marriage licenses altogether, ostensibly to protect the religious freedom of individual county clerks.

Now, i could go into a rant about how stupid this is–imagine if we just ignored the Establishment Clause in favor of the individual religious liberties of every public servant in the United States. We might have to do things like make Eid a school holiday in places with large Muslim populations, instead of pretending that ‘secular’ holiday breaks which just happen to coincide with Christmas and Easter are fair by changing their names. Or start recognizing the religious rights of practitioners of traditional indigenous religions by protecting their right to smoke peyote in ceremonies or protecting and ensuring access to their sacred spaces.

However, there is no reason for this stubborn resistance on the part of Christian county clerks to prevent anyone from getting married, because in Alabama and Texas, you don’t actually need a license to get married in the first place. Common law marriage is still recognized in these states, along with a number of others. In these states where the clerks are using the language of statute that says they “may” issue marriage licenses as an excuse to not, because it doesn’t say “must” (it’s amazing how often the entire meaning of a statute hangs on which three or four letter word was chosen for its language), there are other avenues to legitimizing and recording marriages.

No one, as of last Friday, should be prevented from getting married. If your county clerk refuses to issue a license, look to the common law requirements and get married anyway!

Image result for rand paul images

You can still get married!

In his Time essay, Sen. Paul said,

It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.

Rand Paul is totally right, government need not be involved. If you live in one of these counties in Texas, for example, you can go right ahead and give that clerk what-for by registering a declaration of informal marriage. The gender-specific language in the statute won’t hold up against Obergefell, because marriage is a fundamental right, and it’s most likely that as a matter of equity and deference to legislative intent the statute would simply have the “husband and wife” bit taken out, not be struck entirely.

The religious right is inviting challenges to the traditional definitions used in common law marriage through these acts of protest. I say go for it! No need to wait another day to get hitched if that’s what you want to do.

Or, for that matter, divorced.

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