By Steve Esposito

Marriage has every trapping of a right, and rights should not be subject to licensing. This basic position seems to evaporate into emotion when the topic turns to marriage. But whether it’s styling hair, making coffins or calling your relationship with another person a marriage, no level of government should be licensing these activities to begin with.

It helps to distinguish between a marriage and a marriage license. To statists, this might not matter: Marriage is whatever the State says it is. To the rest of us, the distinction is meaningful. Marriage licenses—slips of fidelity paper—unlock a flow of government benefits and privileges that should not be disbursed at all, let alone disbursed only to a select few.

Marriage licenses have been a favorite tool for much state-imposed misery, for the good of society of course. It hits close to home for me, too, since I’m a white guy and my wife is Asian. Well into the 1960s we would not have been allowed a license in Arizona, Georgia, Montana, Nebraska, Nevada, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming (see tables at the link). It was not just a matter of race either. Some states included nation of ancestry, with Filipinos hardest hit by the restrictions. White people couldn’t marry anyone of another race in South Carolina, Texas, and Virginia for much of our nation’s history.

Every bit of these restrictions were driven by a ruling set of people who decided for others what a marriage should look like. When some states, and eventually the Supreme Court, ended the miscegenation prohibition, the “solution” was to extend permission to miscegenate, while retaining the rest of the discriminations and the licensing scheme to enforce them.

In Tennessee, couples get a discount on their licenses for completing “marriage counseling.” Oddly, all of the counseling is about the marriage and none of it is about the license. That is, the State tells you how to run a marriage. Until you finish that course—just as ignorant about Tennessee domestic law as you entered it—or unless you pay extra to skip it, Tennessee considers the both of you “incapable persons.” Our pastor had to go along with this; if he’d married us before we obtained a license, he could have been fined $500 and lost his own license.

Without a license I could not have given my wife the wedding she wanted, from the minister of our choice. Other than that, my wife and I did not have to worry about license restrictions in 2011 Tennessee. But that does not remove my resentment at the State’s injecting itself into the process at every turn.

Governments that recognize the license grant a host of special illiberal privileges to the licensees. That, and only that, is what the same-sex marriage “debate” is about. In 2004, relating to the Defense of Marriage Act (DOMA), the Government Accounting Office identified for the Senate majority leader 1,138 federal programs that mention marriage as part of a recipient’s qualifications. All of the arguments before the Supreme Court on this topic are about accessing these special privileges and benefits for licensed couples. Incidentally, it’s not just the gender of the parties to the marriage that is at issue; it’s the number as well. The recent oral arguments in the DOMA case before the U.S. Supreme Court mention in passing that marriage licenses are for couples only, and four states have constitutional prohibitions against polygamous marriages because the federal government forced those prohibitions.

Marriage licenses are much different from marriage agreements. One thing a marriage license is not, and never has been, is a “contract” between two people. In contracts, the parties get to set terms. In marriages, the parties get to set the terms. In marriage licenses, the parties don’t get to set any terms whatsoever. The license is between individuals and the State, not between you and your partner (or partners), and the State sets the terms. The one constant of the marriage license is the implicit prohibition of sexual relations with a party not named on the license. Other conditions of the license come and go, but this one always remains. In every single state and territory of the United States, if you prove infidelity you can get out of the license. In many, you also gain the possibility of taking your partner to the cleaners, even the possibility of a paycheck for life. Of course, there are other ways out of a marriage license, but that infidelity aspect is still true everywhere a marriage license is involved.

Marriages predate recorded history. Marriage licenses are a more recent creation. With regard to the United States, marriage licenses were invented in Massachusetts (see page 9 here) and have been required there since 1639. At the time, the Bay Colony government was composed almost exclusively of the Puritan sect of Christianity, and there was a religious purity test to hold office. Not coincidentally, licensed marriage in Massachusetts began as one white man and one white woman. It remained that way until 1843, when licenses became legal for interracial marriage. Massachusetts enacted a 1913 prohibition against couples of other states marrying there if the marriages were not legal in their home states. This law was not repealed until 2008. In 2004, same-sex couples became a legal combination there. The situation in the rest of the states and territories is no less confusing, though they all generally follow the same Puritan religious tradition, with modifications over time.

England and Wales did not get into the license game until Hardwicke’s Marriage Act of 1753, and they created civil marriages effective in 1837. Prior to the adoption of marriage licenses, common-law marriage was the way people became married. In 1215 England, “the banns of marriage” was a Catholic formalization where couples announced that they intended to marry and that gave their families, communities, and clergy a chance to object. Sometimes all English and Welsh subjects had to follow the banns, sometimes not, depending on the how closely wed the church was to the State in their era. (Covering all of the switches on that is the length of an article on its own.)

Some states have “evolved” common-law marriage into a decree that couples who “act married” are married, without any formal notification, and frequently after the fact, like in a probate property dispute. If you are in the common-law jurisdictions of Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, or the District of Columbia, you could be married and neither you nor your common-law spouse—nor anyone else—would know it until long after you were dead. Death is the only instance where Massachusetts recognizes common-law marriage. If you formally willed your farm to your best friend, for example, it could wind up in the hands of the last person you were living with instead.

This is something, but it’s not liberty.

Marriage licenses can also decide how courts will treat paternity. Chicago Bulls great Michael Jordan and his legal team used the “presumption of paternity” principle to fight a lawsuit in Georgia, brought (and now dropped) by a married woman who claimed Jordan was the father of her teen son. Without a license in play, courts rely on scientific genetics.

Marriages are not plain old agreements like any other; they are much more intimate. It is not like a real-estate deal, it is something more special. Even we minarchist libertarians cede sovereigns some authority in tracking land ownership. What we do not expect, invite, or desire is a government keeping track of people as if they were property.

These days, marriages are a public declaration of an intimate relationship, no matter how much of the public they are letting in on the deal and no matter if they follow a faith at all. All of the groups you involve might embrace the union, or they may decide to stop letting you and your spouse hang around. Hey, they have the same freedom to associate or not as you and your marriage partner do. Or maybe partners: For Jewish polygamists there might be a Habayit Hayehudi Hashalem temple down the street that will welcome you, or you can form your own, or just not worry about it. Muslims, Nigerian Celestial Christians, and Liberian Lutherans don’t have to worry about their congregations either, if they wish to form a marriage involving more than two people. When you have voluntary arrangements between willing parties, freedom rules the day. That is how marriage has evolved. When you invite the government to the honeymoon, you chase freedom from the scene.

Some incorrectly apply these sentiments to licensed marriage, calling it “a public declaration of a deep and meaningful relationship,” even though you can do that every day and twice on Sunday without a license. Indeed, millions of people denied licenses through the years did just that and lived married without licenses. In fact, the only form of voluntarily agreed-upon marriage is the unlicensed variety. In our recent history, the government punished people for being married without a license. Is this a problem of marriage, or is this a problem caused by a government licensing scheme?

Where is the libertarian argument for liberty in the general discussion about same-sex marriage? It is absent. When expressing their solidarity with the authoritarian statists, the excuse frequently given is to make things “fair.” Well, if you are some sort of pragmatist who wants to retain all these unlibertarian programs, you are not making anything “fair” by giving special handouts that should not exist anyway to couples with licenses, while excluding the unlicensed. Neither are you extending liberty by perpetuating the licensing scheme.

Striking down DOMA might not be as good as striking the word “marriage” from the federal register. It might even be better than a lot of alternatives. Call it a tangent, call it a significant turn of events, call it what you will. Just don’t call it liberty.

Steve Esposito is a graduate of the University of Tennessee (BS, Finance), a former defense contractor, and a 30-year veteran of the U.S. Army National Guard and Reserve (Aviation). A reformed Chicago School Economist aficionado, he now embraces the “hard core” Austrian School. He currently lives in Knoxville, Tenn., with his second wife. He can be reached through [email protected] and via email at [email protected]