Bench Memos

Paging Congressman King

My friend Adam MacLeod, a visiting fellow at Princeton University’s James Madison Program this year and a law professor at Faulkner University, writes in response to Rep. Steve King’s Corner post this morning:

I am grateful for Congressman Steve King’s sensible voice, and equally grateful that National Review gives him a venue to exercise it. So, I hope that I do not appear ungrateful by correcting a misstatement in the title of his essay on NRO, “Marriage is Illegal… Without a License.” He repeats the misstatement in the text itself: “A license is a permit to do that which is otherwise illegal.”

That is true of driver’s licenses, professional licenses, and hunting licenses. But it is not true of marriage licenses. The licensing scheme for marriage is not paired with any prohibitions against unlicensed marriage. In fact, civil marriage has long co-existed with common-law marriage, ceremonial and religious marriage, and cohabitation. Unlike the licensing scheme for medical doctors (for example) the licensing scheme for civil marriage encourages legal recognition of real marriages—monogamous man-woman pairings—that exist outside the scheme.

This is important because proponents of removing sexual complementarity from our marriage laws today argue that the redefinition is necessary to eradicate the same-sex “marriage ban.” There is no ban. Same-sex couples who hold themselves out as married face no criminal or civil penalties. No administrative agency prohibits the Episcopal Church from solemnizing same-sex weddings. (That fact has, incidentally, gone largely unnoticed in the controversy over the HHS mandate requiring Catholic and evangelical institutions to subsidize employees’ use of contraceptives and abortifacient drugs.) What proponents of redefinition want is not to eradicate any ban but rather to change the definition of marriage for everyone.

Most Popular

World

Trump Pulls American Troops Out of Somalia

President Trump on Friday ordered almost all American troops to be withdrawn from Somalia, following similar reductions in U.S. military presence in Afghanistan and Iraq. The Pentagon announced that the majority of the approximately 700 troops in Somalia will leave the area by January 15. Many are expected to ... Read More
World

Trump Pulls American Troops Out of Somalia

President Trump on Friday ordered almost all American troops to be withdrawn from Somalia, following similar reductions in U.S. military presence in Afghanistan and Iraq. The Pentagon announced that the majority of the approximately 700 troops in Somalia will leave the area by January 15. Many are expected to ... Read More
White House

Trump’s Disgraceful Endgame

President Trump said the other day that he’d leave office if he loses the vote of the Electoral College on December 14. This is not the kind of assurance presidents of the United States typically need to make, but it was noteworthy given Trump’s disgraceful conduct since losing his bid for reelection to ... Read More
White House

Trump’s Disgraceful Endgame

President Trump said the other day that he’d leave office if he loses the vote of the Electoral College on December 14. This is not the kind of assurance presidents of the United States typically need to make, but it was noteworthy given Trump’s disgraceful conduct since losing his bid for reelection to ... Read More
Politics & Policy

Can Joe Biden Pardon Himself?

John Yoo argues that once he’s president, he can. He mentions the contrary possibility that the pardon power mentioned in the Constitution was understood to refer to a power to pardon someone other than the pardoner. He does not, however, defeat this possibility. He stacks the deck by presenting the argument ... Read More
Politics & Policy

Can Joe Biden Pardon Himself?

John Yoo argues that once he’s president, he can. He mentions the contrary possibility that the pardon power mentioned in the Constitution was understood to refer to a power to pardon someone other than the pardoner. He does not, however, defeat this possibility. He stacks the deck by presenting the argument ... Read More
Elections

The Post-Election Madness Gets Worse

On the menu today: Two lawyers who aren’t formally on the president’s legal team but who keep filing lawsuits on his behalf tell Georgia Republicans to not vote in the Senate runoffs; Michael Flynn endorses a call for “limited martial law” and a “re-vote” of the presidential election; and the ... Read More
Elections

The Post-Election Madness Gets Worse

On the menu today: Two lawyers who aren’t formally on the president’s legal team but who keep filing lawsuits on his behalf tell Georgia Republicans to not vote in the Senate runoffs; Michael Flynn endorses a call for “limited martial law” and a “re-vote” of the presidential election; and the ... Read More