Marriage: Challenging State Authority

Marriage: Challenging State Authority
August 16, 2003
by Rick Fisk | Special to LibertyForum.org

Marriage is a hot topic lately. Gay lobbyists appear to be on the brink of victory. At any moment they could succeed in persuading state governments to redefine civil marriage to include "husbands and wives" of the same sex. They've had some success in Vermont and a close call in Hawaii. In response, legislators are promising a federal remedy; even if that remedy (a federal definition of marriage which only includes "a man and a woman") moves afoul of the U.S. Constitution.

Sometimes, when making an argument, it is helpful to understand your terms. In the din of debate, some definitions are overlooked. What is a marriage license? What gives a state the authority to regulate marriage?

Black's Law Dictionary 3rd edition (1933) defines license as:

"..... A permission, accorded by a competent authority, conferring the right to do some act which without such authorization would be illegal, or would be a trespass or a tort."

Any activity which would otherwise be an infringement on somebody else's rights or property is subject to license. Theoretically, a government could issue a license to kill. Apparently, without a state-issued license, marriage is a crime rather than the exercise of a fundamental right.

"Marriage License" is defined in Black's as:

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