For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
The article also does me the turn of obliquely demonstrating how the current battle over marriage has nothing to do with control over what relationships we feel are competent to rear children. If it were then the those involving a partner who was a "drunk, an addict or a 'mental defect'" would also be prohibited. But I suspect this smacks too much of eugenics to be said aloud so as the number of groups we can vocally discriminate diminishes, conservatives focus on those still sufficiently loathed.
Every other tradition surrounding marriage has changed and this one will as well. And if we're to avoid the affront to good sense that is a marriage amendment, the government should simply stop issuing marriage licenses and restricting itself to granting recognition which has no relation to a shifting cultural institution over which it has never effectively exerted control and where it has, has usually reinforced the worst bigotries of the unwashed many.
