Indiana Bill Would Eliminate State Marriage Licenses, Nullify Federal Control in Practice

Tenth Amendment Center – by Mike Maharrey

INDIANAPOLIS, Ind. (Jan. 11, 2017) – A bill introduced in the Indiana House would end government licensing of marriages in the state, effectively nullifying in practice both major sides of the contentious national debate over government-sanctioned marriage.

Rep. Jim Lucas introduced House Bill 1163 (HB1163) on Jan. 9. The legislation would eliminate three marriage requirements currently in place in the state.  

1. That individuals obtain a marriage license before getting married
2. That the marriage be solemnized by an individual specified by state law
3. That the marriage license be filed with a circuit court clerk and the state department of health.

The bill instead “provides for marriage by marriage contract by any two individuals who are competent to contract in Indiana or otherwise permitted to marry in Indiana.”

The marriage contract, which can be used for proof of a marriage instead of a license, must be in writing. The two parties must be considered competent to enter into legal contracts in the state. The contract also requires at least two witnesses to sign. A marriage contract can also include terms and conditions as part of a premarital agreement.

HB1163 has minor restrictions, mainly prohibiting polygamy and limitations on the duration of the marriage. It also establishes an age requirement, though it does make exceptions under special circumstances.

HB1163 would reduce the state’s role in defining and regulating marriage, which has become a contentious issue and places a burden on government officials torn between the legal requirements of their jobs and their personal religious convictions.

By limiting the state’s role in marriage, HB1163 would allow Indianans to structure their personal relationships as they see fit without interference or approval from the government.

Removing state meddling in marriage would render void the edicts of federal judges that have overturned state laws defining the institution. The founding generation never envisioned unelected judges issuing ex cathedra pronouncements regarding the definition of social institutions, and the Constitution delegates the federal judiciary no authority to do so.

Constitutionally, marriage is an issue left to the state and the people.

As a 2007 New York Times op/ed points out, for centuries marriage was a private affair.

“For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. 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 fact, state marriage licenses were used as a way to prevent interracial marriages. Later, the NYT story recounts, the licenses became necessary in order to subsidize the welfare state.

“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.”

Something rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a person requires government permission before getting married. In America, people generally cannot drive a vehicle without a license. People cannot practice law without a license, nor can they provide medical care.

Put another way, under a licensing scheme, marriage is not a right, nor a religious institution, but a privilege granted by the state and limited by its requirements.

Consider this: In the same way a driver can lose their license if they break certain traffic laws, a man or woman, theoretically, could one day find their marriage license revoked for breaking certain “marriage” rules, whether it pertains to child rearing, or their religious and political convictions.

Christopher Wesley, an associated scholar at the Mises Institute, wrote that “marriage is most endangered when it rests in the coercive hands of the State.”

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HB1163 was referred to the House Committee on Judiciary. It will need to pass with a majority vote before moving forward in the legislative process.

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Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

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