What happens when the federal judiciary tells states that they can no longer define the terms of marriage? One state might just take itself out of the marriage business. News9 in Oklahoma reported on Friday that a legislator has a bill standing by that would, in News9’s reporting, prohibit all marriage to comply with the equal-protection rulings handed down in a recent challenge to their traditional definition of marriage:
What News 9 reports and what Mike Turner is saying are two different things, I think:
State lawmakers are considering throwing out marriage in Oklahoma.
The idea stems from a bill filed by Rep. Mike Turner (R-Edmond). Turner says it’s an attempt to keep same-sex marriage illegal in Oklahoma while satisfying the U.S. Constitution. Critics are calling it a political stunt while supporters say it’s what Oklahomans want.
“[My constituents are] willing to have that discussion about whether marriage needs to be regulated by the state at all,” Turner said.
Other conservative lawmakers feel the same way, according to Turner.
“Would it be realistic for the State of Oklahoma to say, ‘We’re not going to do marriage period,'” asked News 9’s Michael Konopasek.
“That would definitely be a realistic opportunity, and it’s something that would be part of the discussion,” Turner answered.
There is a big, big difference between “prohibiting all marriage,” as Michael Konopasek reports it for News9, and having the state stop certifying marriages, as Turner appears to be proposing here. An action does not have to be certified to be allowed, nor are all non-government-certified actions illegal. What Turner describes in this interview sounds less like making marriage itself illegal than just changing the law to stop issuing marriage certificates and performing nuptials.
That’s not a new idea, although it has yet to be tried. I’ve proposed this for almost six years at Hot Air, starting with a brief mention about narrowing the agenda in order to expand the base in May 2008 (and a longer, more detailed arguments in May 2009 and again in August 2010). Nor is Oklahoma the first state to propose it. In March 2009, California voters submitted a referendum to end the certifications of marriage as one reaction to the controversy over Proposition 8.
How would that work? Instead of providing certification for a particular cohabitation arrangement, the state would remain neutral entirely. Those wishing to get “married” would go to their church, whose rights to define it according to their own doctrine would be safe from government mandates on definitions, since the state wouldn’t care at all. Cohabiting couples can and should get partnership agreements signed to control their shared property, and the state would enforce those just as it does other contracts, without any interest in the sexual practices between the pair (or trio, or …). Laws regarding age of consent would still apply. It’s the ultimate “get the government out of the bedroom” approach.
Conservatives have resisted this as a danger to family cohesion, but that ship has more or less sailed anyway. Thanks to a very large shift in public opinion, government will redefine marriage in a way that will eventually force churches and associated businesses to comply against their own religious beliefs — as we have seen in some cases with wedding-related vendors such as bakeries. Don’t think that churches, synagogues, and other religious venues will long be immune, either. The imposition of the HHS mandate shows what happens when government wants to coerce people to comply with their social agenda.
If I had my preference, it would be to keep marriage to the one-man-one-woman definition for reasons I outlined in 2012 relating to family structure and the protection of children. Barring that, then marriage should be a private affair, and government should limit itself to the enforcement of civil contracts. Turner has the right idea, and it will be as interesting to see how that unfolds as marijuana legalization in Colorado.