Sunday, July 5, 2015

Texas Republicans: Divorce Government From Marriage

Rather than accept the U.S. Supreme Court ruling that state bans on gay marriage are unconstitutional, Texas' social conservative Republicans want to transfer the authority to issue marriage licenses from county clerks to church clergy.

Texas State Representative David Simpson (R-Longview) is urging Gov. Abbott to declare a special session of the Texas Legislature to consider a bill to do exactly that.

Under Simpsons bill, couples would no longer go to the county clerks office to obtain their marriage license. Rather, they would go to their choice of church to ask the Priest, Pastor, Minister, Rabbi, etc. permission to obtain their marriage certificate. Rep. Simpson writes in an editorial in TribTalk,
"Clergy would issue marriage certificates in a manner consistent with their values and their convictions. Those certificates could be filed with the state if desired. If the Presbyterians set a different standard than the Baptist tradition to which I belong, then so be it." Simpson adds, "For those who do not wish to have a religious ceremony, any authorized notary may approve a certificate."

Simpon's bill would require all parties intending to be married to obtain a marriage certificate signed by religious clergy in order to be married. The clergy would then submit the signed marriage certificate to the county clerk after officiating marriage.
Simpson's rational is much the same as advanced by Republican presidential candidate Rand Paul in an essay for Time. In the Time essay, Paul makes a libertarian argument that government should just divorce itself from the whole business of licensing and regulating marriages.

The underlying purpose of transferring the authority to issue marriage licenses from county clerks to church clergy is clearly to circumvent the Supreme Court's finding that marriage is a civil right. Where the American judicial system can order government officials, such as county clerks, to issue marriage licenses to racially mixed and same-sex couples, the courts can not order churches to issue marriage licenses to anyone.

Simpson's proposed Texas bill is modeled after a bill filed in the Michigan state House in June. That Michigan bill would end would end government licensing of marriages in the state, effectively ending government's interest in marriage, and divorce.

Introduced by Rep. Todd Courser (R-Lapeer) and Rep. Cindy Gamrat (R-Plainwell), Michigan House Bill 4733 (HB4733) would take the marriage out of the hands of government and the courts and hand it to church clergy, with “common law marriage” being an option for couples who don't want seek permission to marry from church clergy.
HB4733 would require “all parties intending to be married to obtain a marriage certificate signed by their clergy in order to be married.” The clergy would then “present the signed marriage certificate to the county clerk after the marriage is solemnized.”

Marriage licenses would no longer be required, but “persons wishing to be married must obtain a marriage certificate signed by clergy” under the bill.

For marriages that are not conducted as apart of an official religious ceremony, HB4733 would allow couples to file an “affidavit of common law marriage.” These affidavits would be signed, notarized and contain the following information for a lawful marriage to occur:
(A) The place where each party resides.

(B) The full legal name and age of each party as they appear on or are calculable from a certified copy of the birth certificate, the current driver license or state personal identification card, the current passport or visa, or any other certificate, license, or document issued by or existing under the laws of any nation or of any state, or a political subdivision of any state, that is accepted as proof of identity and age.

(C) The full name by which each party will be known after the marriage, which shall become the full legal name of the party upon filing of the marriage certificate.

(D) That the parties are not disqualified from or incapable of entering into marriage.
Some other states have considered legislation similar to what Simpson and Paul propose.

The Alabama Senate passed a bill in May that would require couples who wanted get married to execute a contract, witnessed by two adults. The contract would be filed in the probate's office; no wedding ceremony would be required.

Opponents of the Alabama bill said if the legislation passed, it would cause confusion and make it difficult for military members to get their marriage entitlements. One lawmaker noted, according to the Alabama Media Group's website, that probate judges who don't want to issue marriage licenses to same-sex couples might also refuse to accept contracts. The proposal clearly wasn't aimed at saving taxpayer money — a fee increase was included in the bill.

The Alabama bill, proposed in anticipation of Supreme Court action legalizing gay marriage, died in a committee in the House, before the Supreme Court's decision was handed down.

A similar bill passed Oklahoma's House of Representatives this year. A lawmaker in Mississippi has also floated the idea of getting rid of state marriage licenses.

The effort of divorcing government and the courts from marriage would be a confusing and time-consuming task. Jurisdiction over everything from divorce, alimony, child support - and most issues handled by family law courts - inheritance and survivor benefits, joint tax filings and more would be open to question.

There is also the question of whether clergy of a church that supports plural marriages could issue a license for a man to marry two, three or more wives.

The Catholic Church does not recognize divorce, so a Preist likely would not grant a marriage license to parishioners who have previously been married and divorced. When a Catholic man and Jewish women decide to marry, could the find a Preist or Rabbi who would grant their marriage certificate? Many other questions come to minds when putting religious clergy in control of issuing marriage licenses.

Texas Public Radio: Divorce Government from Marriage

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