The Corner

Marriage Is Illegal . . . Without a License

A license is a permit to do that which is otherwise illegal. State governments issue licenses to protect certain activities in which that state government has a compelling interest. One must have a license to drive, to fly, to practice medicine, to conduct certain business, to teach school, to practice cosmetology, to join the bar and to own one. In order to get married, one must possess a marriage license.

Each license comes with a set of qualifications that must be proven in order to obtain it. Those qualifications always indicate the government’s compelling interest in the activity. To drive, one must prove he or she is a safe and capable driver. The government’s compelling interest is safety. To teach school, one must prove he or she is equipped to teach adequately, prepare children for the rigors of society, and handle unique challenges of certain students. The government’s compelling interest is to perpetuate what is best for the children.

To marry, two people must prove they are of opposite sex, not related, of age, and not married to anyone else. There is no requirement for proof of enduring love, comingling of finances, or even intent to cohabitate. To ask the government to certify any of those things would offend all Americans who jealously guard their individual autonomy. The government has a compelling interest in a legal record of procreation (this is further indicated by the doctrine of presumed paternity), and in creating a lasting environment where children will thrive. The fact that one must obtain a court order to divorce and the existence of tax-based incentives for marriage are other effects of the government’s interest in marriage.

Marriage is the stable platform from which families are launched. Government surely has a compelling interest in ensuring the stability of that platform, and even subsidizing the practice with tax incentives. Moreover, society has an interest in promoting procreation amongst married adults. Same-sex marriage does not present the possibility of natural procreation nor has same-sex parenting endured and thrived for millennia of human experience.

In our legal system, qualifications for licenses have long-standing foundation, and those qualifications are not considered discriminatory. They are considered to be necessary to pursue the interest of the public. In the case of marriage, those interests are all about children.

You do not need a license to begin a new friendship, start shopping at a new grocery store or pharmacy, or even begin a new dating relationship. Likewise, one does not need a court order to terminate any of those relationships. This fact indicates that there is something unique about marriage that necessitates government involvement. Insisting upon heterosexual marriage is therefore not discriminatory, nor does it constitute the government telling anyone whom to love. The argument for upholding the Defense of Marriage Act is rooted in the way marriage is historically treated by state laws. To understand why government is involved in marriage in the first place is to understand why government cannot validate same-sex marriage.

 Steve King represents the Iowa’s fourth congressional district.

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