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.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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