Fact: Licenses
are generally enforced by laws, not Constitutional amendments. There
has been no legal license to same-sex marriage in North Carolina since
1996. This amendment will not make it any more illegal, though it will
make more things impossible to make legal: domestic partnerships and
civil unions. Whether "we" "want to" grant these licenses or not, they
are happening anyway. These licenses are being granted by governments
across America and the globe. The real issue here is whether our state
wants to recognize already existing gay marriages of the citizens of the
world.
A license is a way for the public to control
who gets to do things, and under what circumstances - and licenses are
generally used when there is a compelling public interest. Architects
must be licensed, but graphic designers don't. Why not? There's no
compelling public interest. It's the responsibility of those arguing for
restrictive licensing to demonstrate a compelling public interest, and
that demonstration must rely on quantitative analysis rather than
abstract, unfounded fears. What is the term for government regulation
which has no legitimate purpose? Excessive government control and
overreach. Or, simply, discrimination.
As a society,
we long ago realized that the possession of a marriage license alone
tells us little about who has familial responsibility and who should be
protected. Our familial concerns in “protecting society”, in other
words, exceed the mere marriage license. Currently, a significant number
of America's children are born to unmarried people, and we've agreed
that these children shouldn't be denied inheritance rights, parental
support or legal standing just because their parents are not married. We
no longer employ, or even quite understand, the phrase "bastard child".
In earlier history, divorce was difficult or impossible. The concept of
illegitimacy faded as divorces became more attainable: couples raising
children didn’t have to wait for a former spouse to die before they
could marry.
That being said, a close reading of our
colonial and state history shows that marriage licenses have been used
primarily as a means of archiving vital statistics, as a tool in
adjudicating matters of inheritance and property, and as
revenue-generators. Governor Tryon, in 1771, in announcing his
justifications for the "Act to Regulate the Issuing of Marriage
Licenses", wrote, "[The Act] will better secure the fees due to the
Governor and give him a summary way of calling the clerks regularly to
account with him; a habit little known or practiced among some of them."
The Governor had worked himself into a lather about not getting all the
revenue he deserved from marriage licenses.
Not
insignificantly, marriage licenses have been used since 1741 in North
Carolina to "protect society" against a Caucasian human being marrying a
black human being. Not satisfied with that level of "protection", by
the 1920's at least 38 states enforced anti-miscegenation laws and
licenses to prohibit white people from marrying Japanese, Chinese,
Native American, or Mongolian people. In Virginia's notorious 1955
Supreme Court decision in Naim v. Naim, the court stated: “The
preservation of racial integrity is the unquestioned policy of this
State.” The court also said that it saw no Constitutional prohibitions
against Virginia enacting legislation to preserve the racial integrity
of its citizens "so that it shall not have a mongrel breed of citizens".
It went on: "We find there is no requirement that the State shall not
legislate to prevent the obliteration of racial pride, but must permit
the corruption of blood even though it weaken or destroy the quality of
its citizenship. Both sacred and secular histories teach that nations
and races have better advanced in human progress when they cultivated
their own distinctive characteristics and culture and developed their
own peculiar genius." Compelling government interest, indeed.
--
[The State Records of North Carolina, Volume 8", William Laurence Saunders]
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