Criminal defense in Austin Texas.

Unlicensed Marriage

Posted By on June 3, 2009

Almost 16 years ago, my wife and I were married in another state.  Along with renting a tux, buying a ring, and nodding my head whenever my wife asked me anything about the wedding, I had to go obtain a license.  I still have that piece of paper, somewhere, but in the last 16 years, I can’t remember anyone, anywhere, ever asking for it.

I got to thinking about it in reference to “gay marriage.”

What is marriage, anyway?  Why do you need a license for it?

If you google “unlicensed marriage,” one of the first results will be a court case out of Washington.  It was a criminal case where the issue was “spousal privilege” – the rule that a spouse can’t be made to testify against the other.  The couple, in that case, had never gotten a license, so the issue was whether they were married.

The court ruled that they were.

In the eyes of the common law, marriage is a civil contract.  As Blackstone put it, the law treats marriage “as it does all other contracts: allowing it to be good and
valid in all cases, where the parties at the time of making it were, in the
first place, willing to contract; secondly, able to contract; and, lastly,
actually did contract.

Which makes a certain amount of sense, when you think about it.  Marriage existed before Massachussets, or Texas, or the United States.  Marriage existed before Christianity, before law, and, for that matter, before history.

I’d always kind of thought, unconsciously, that having a license was what made you married.  But in Washington, at least, marrying without a license may be illegal.  But the fact you didn’t get a license doesn’t make you unmarried.

I guess the analogy is to fishing.  Fishing without a license may be illegal.  But you’re still fishing, whether you have the license or not.

Anyway, it makes me wonder.  Do gays really need anyone’s permission to marry?


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