In the US, marriage licenses were introduced the late 1800s in most states as a way to stop interracial marriages. By the early 1900s, the legal age of sexual consent was raised from 12 (roughly the age when puberty starts) to 16 — though some states still allow marriage as early as 14 years old. The marriage license was then also used to prohibit marriages with people that were too young. Also in the late 19th century, polygamy became illegal throughout the country in response to the rise of the Mormons, and marriage licenses were used to stop it as well. Finally, as homosexuality came out of the shadows in the 1970s, the licenses were used to prevent gay marriage.
Since marriage is usually a religious rite, in a country with nearly unlimited religious freedom the government’s interest in marriage should only pertain to secondary issues of taxation and arbitration (inheritance, custody, distribution of assets, etc). Given that, the various prohibitions on marriage by government have never made any sense from the standpoint of civil rights. The issue first came to a head in the 1960s, when the Supreme Court invalidated miscegenation laws prohibiting interracial marriage. Almost fifty years later, the Court is now poised to invalidate the prohibition of gay marriage. If it does, marriage licenses will only have the power to prohibit polygamy and violations of age of consent.
A federal suit challenging Utah’s polygamy law was brought in 2011 by the cast members of the Sister Wives reality TV series, and a decision should come soon. Regardless of the outcome, an appeal will likely be made to the 10th Circuit, and then the Supreme Court. Which brings us back to the current gay marriage case: Justice Sotomayor, who will likely vote for legalization of gay marriage, asked attorney Ted Olson, who is arguing that gay marriage is a fundamental civil right, if any restrictions on marriage can exist. His answer was a “yes”: polygamy can be banned because it’s a law prohibiting conduct, whereas gay marriage bans are based on discrimination of a class of people based on their status as homosexuals. Given that both arguments can be applied to both gays and polygamists, it’s a very weak one.
Prohibition of interracial marriages was based on racism — the view that non-whites were lesser versions of humans, maybe even sub-human, and it would thus be almost as morally wrong for whites to marry them as it would be to marry animals. The prohibition of gay marriage and polygamy is based on religious beliefs. The concept of age of consent is based on a parental desire to prolong the chastity of childhood beyond its natural end at puberty. None of these legal prohibitions have anything to do with the government’s monetary and arbitrative interest in the private, and usually religious, institution of marriage. All four prohibitions are based on the moral fashions of certain periods in our history — fashions which are now changing. In fact, marriage itself is increasingly being seen as an outdated fashion, made pointless by the ease of divorce.
It’s also important to note that legal prohibitions of marriage have little bearing on reality. Whether or not they’re allowed to marry legally, interracial, gay, and polygamous couples/triples/etc still act like they are married for all purposes that matter: they live together, they have sex, they share expenses and have children. The only differences are legal, and therefore artificial: they have to jump through hoops to get certain rights like hospital visitations and power of attorney, and are denied certain benefits, like sharing insurance plans. It’s reminiscent of other toothless prohibitions, like those on alcohol and drugs. If 20th century legislation has taught us anything, it’s that it is almost impossible to legislate morality in a free country: as long as they have the right to privacy, the people will do what they want in their own homes.
Of course, our right to privacy is increasingly being threatened by technology, and it is now easier than ever for a fascist state to impose moral dictates on its population. Which in turn means that it is now more important than ever that our laws not curb the freedoms upon which America was founded.
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