Our Mutual Distrust Society: Same-Sex Marriage Edition
Linky Friday #106 contains a story from earlier this week about a new bill in Oklahoma. The proposed Oklahoma law would say that Marriage Licenses are no longer issued by Court Clerks but are to be issued members of the clergy.
Huffington Post reads the bill as excluding people who do not belong to Judeo-Christian religions including Islam. Patheos thinks the bill will discriminate against same-sex couples and atheists. Reason wonders what Democrats and Same-Sex Marriage Advocates are complaining about.
The saving grace section reads: “Marriages not contracted by a formal ceremony pursuant to subsection A of this section may be acknowledged by filing an affidavit of common law marriage with the court clerk.”
The rest of section explains the contents of the affidavit and that it needs a stamp of a notary public.
This is the section that has Same-Sex Marriage advocates crying foul and murder and Reason wondering, “Hey, what’s the big deal?”
Unsurprisingly, I am on the Democratic and Same-Sex Marriage side. The Oklahoma Constitution currently bans same-sex marriage. I think that Oklahoma is anticipating that the Supreme Court is going to announce that bans against same-sex marriage are unconstitutional sometime in June of this year. This seems to be a way of doing a somewhat passive version of massive resistance against the nationalized legalization of same-sex marriage. Oklahoma is simply trying to find a way to make sure that its state officers and officials do not participate in same-sex marriages except in the most perfunctory of ways. There are other additional steps for same-sex couples because they will need to get a lawyer involved to draft the affidavit while heterosexual couples do not. I’ve needed to use notary publics before. They tend to dwell in very drab and depressing settings. County Courts tend to have some aesthetic charm and officiousness about them and the imprimatur of state support.
No one can predict the future but my guess is that the Supreme Court is likely going to rule that same-sex couples have a right to get married this spring. Every Supreme Court decision has gone towards gay rights since Romer v. Evans in 1996. However, I expect that many states are going to attempt variants of the same kind of massive resistance that were popular during the Civil Rights era especially because 2016 is a Presidential Election year and grandstanding against same-sex marriage is a good way to score red-meat points with the social conservative base of the Republican Party. We have already seen Florida clerks look for ways out of issuing same-sex marriage licenses. Other states are sure to follow.
I think this is what has Democratic voters and same-sex marriage advocates on edge. There is a long-history of mutual distrust and suspicion and this doesn’t seem like a graceful acceptance of losing on an issue but a way to snatch victory from the jaws of defeat. “We might have to recognize your licenses but we don’t like it and we will make the situation as boring and drab for you as possible!”
I am also not surprised that Reason is taking the side of Oklahoma. Reason might be a Libertarian magazine and not a social conservative magazine but they see Libertarianism as more closely aligned to conservatism and the Republican Party than they do to social liberalism and the Democratic Party. This causes them to take swipes at Democratic voters and their allies and also show elephant undies from time to time for Team Red. Reason’s stance here seems to be “Hey, this is getting government out of something and that’s great!!” They are not being very empathetic to the stance of a same-sex couples whose marriage is getting recognized in the most mealy-mouthed way humanly possible because Oklahoma is acting like a petulant teenager.
Reason hasn’t got any Quakers on staff, has it? You don’t need to step out of the Christian world before you get to folks who don’t got clergy to do marriages, and won’t accept marriages done by clergy if they had ’em.
Reason, thou art wrong.Report
Quakers are specifically addressed in the law.Report
One point to Oklahoma, then, for actually having thought of a Reasonable Issue (I note that the Bahai are cited specifically as well, same section)Report
They could still have a vulnerability if they missed one in their list. They probably should have language saying “or another established church that meets the same criteria”… but maybe they didn’t miss any, or would accept it on the same idea.
They accept from the ULC, so I really don’t think they’re actually too stringent here.Report
What about clergy from the Church of the Flying Spaghetti Monster, or Universal Life Church?
Let alone the equivalent of clergy in Buddism, Hinduism etc. If the bill says Judeo Christian it collides head on with the first amendment which does not say “Congress shall make no law restricting the free exercise of religion as long as it is Judeo Christian” If Ok accepts the ULC, then what about the Flying Spaghetti Monster?Report
@lyle The bill did not change the verbiage on who can marry. We have every reason to believe that those who can marry people now can marry will be able to marry them with this legislation. That includes the ULC. I don’t know about FSM, in Oklahoma or elsewhere.Report
Incidentally, the bill as passed actually does include a “or another established church that meets the same criteria” clause (my wording, not theirs) in the Quaker/Bahaii section.Report
There’s some sloppy drafting — “assembly” with no qualification in one place, “recognized assembly” in another — but there’s not really any question in my mind that any organized sect, no matter how obscure, qualifies.Report
Do you think the Southern Tech University Linux Club qualifies?Report
The deciding factor would seem to be if the Linux Club authorizes its members to do marriages. As in current statute, you would still have to file a letter or such with the county clerk identifying your sect, and stating that you’re authorized.Report
The Linux Club can only issue GPLs, so you wind up married to everybody.Report
Do the common law marriages created by the affidavit come with the same legal rights and benefits as a “real” marriage? If so i can see Reason’s point since it would allow everybody to get to the same legal place. However they are being a bit clueless since it is obviously trying to create a 2nd class kind of marriage and pushes “those” people to go through extra steps to get to the same legal place.
In any case nothing is taking marriage out of the Gov’s hands since the Gov deals with contracts which is what a legal marriage is. It is the courts that rule on what happens when the contract is ended and the legal benefits of marriage are there by law. So can people never say “get the gov out of marriage” ever again.Report
Where are you seeing this second class of marriage?
Maybe I’ve got this absolutely wrong, but all I see is that there are two ways to get a marriage certificate: a clergy person or a notary.Report
Also, rather than “extra steps”, the affidavit route actually seems easier than the clergy/judge route. You get a notary, you sign some papers, and you turn it in to the clerk.Report
If there is one kind of marriage where you get the standard marriage contract but another kind where you need to get a lawyer to write up a contact then that seems like two kinds of a thing. Or at least two separate entrances to the same building. If the rights and benefits are the same i don’t’ see it as a huge deal but it is still trying to keep one slightly lesser level for “those” people by giving them an extra hoop to go through.Report
Huh? You don’t need a lawyer to draft a contract. You just need a notary to sign an affidavit.Report
As far as I know, you don’t need a contract to get married, unless you’re Jewish and signing a Ketubah or you want a pre-nup. Other than than, what you need is a marriage certificate that needs to be issued by one entity and signed by another.
Does this law change that?Report
A legal marriage is a contract.
I thought i saw a bit about a lawyer. If not needed then i read it to fast.Report
@greginak @will-truman
Same-Sex couples and others excluded from the Oklahoma law are going to need someone to draft an affidavit for them to get it authorized by a notary public. I suppose they could draft it themselves but it seems to me that they will need to go to a lawyer to do so.Report
Well that gets back to my question about whether the affidavit leads to the same rights and benefits. If the affidavit is just a form to fill in name and birthdates then it is just a marriage license form like the ones we have all filled out. No big deal. If it requires more info or a lawyer or requires all the different legalities to be spelled out, then it is a different kind of thing and not the same kind of marriage process.Report
No lawyer will be needed. Notaries will probably have them. It would take about ten minutes to write your own. The requirements are breathtakingly simple. Here is the date. Here are our addresses. Here are our names. Here are what our names will be after our marriage. These are the forms of identification we used. We are not disqualified or incapable of marrying one another. Here are our signatures. There is the Notary’s stamp and signature.
That’s it. Done.Report
@will-truman
Funny, that sounds like the exact same damn form my wife & filled out when we applied for our marriage license in WI almost 20 years ago!
Oh, we also had to swear we were not siblings or first cousins.
OMG We totally have a second class marriage!Report
Will, if that is all it is, and the legal parts of the marriage are the same, then it isn’t an issue. It would be a marriage license.Report
@mad-rocket-scientist The checklist of things that need to be included are actually shorter for the affidavit than they are for Clergy (who have to input information about their church).Report
Greg, for what it’s worth, here is the applicable verbiage in the law:
Report
The notary does not perform a wedding, only notarize a document. You can:
(a) Have a Christian or Jewish religious wedding (Muslims, Hindus, Buddhists, and any weirdos whose partnership doesn’t meet the approval or a Priest, Minister, or Rabbi can see option b)
(b) Complete an affidavit of being too freakish to deserve a wedding, preferably in a dank basement out of the sight of decent people, get it notarized, and file it at the courthouse.
Option b is pretty clearly “second class”Report
Dragonfrog: The law does nothing to change who can and cannot preside over weddings, except to remove judges from the list who can. If Hindus can perform weddings under current law, they will be able to under this law. And given that ULC can perform weddings under current law, I have no reason to believe that Hindus cannot.Report
@dragonfrog
As discussed down thread, that isn’t how the bill is worded.Report
@mad-rocket-scientist , @will-truman – the practice in Oklahoma may be to ignore that part of the law so as to allow Hindus et al. to get married because to do otherwise would be clearly unconstitutional, but that’s still not what the law says.
The language of the law specifically says it has to be an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbiReport
I see two possibilities:
– “The Gospel” is supposed to mean “the Christian Gospel”
– “The Gospel” is supposed to mean “any religious thinking whatever”
In the latter cased, there would have been no need to specify “or a rabbi”?Report
The same law, both existing and proposed, also has a specific accommodation for Bahaii, which doesn’t fall into the Christian camp or any other camp specified in that subsection.
My guess is that the words have been rendered void, but they haven’t bothered to update them.
It seems clear to me that that in text (Bahaii) and spirit (acceptance of ULC), it is not expected to be limited to Christianity and Judaism.Report
@dragonfrog
Since OK clearly allows “clergy” of non-denominational “churches” to perform ceremonies, what the law says regarding what religions are recognized seems wholly & entirely irrelevant.
The “church” I linked to, and the one Will linked to both have addresses in Seattle, so there is not even a requirement for the church to have a physical presence in the state of OK for the state of OK to recognize it as such (as it should be, since government has no business playing religious favorites).
@myrtlemartha (continuing from above)
Therefore, despite what the law says, the ability to retain the services of a “clergy” to perform a “real” marriage ceremony (as opposed to the sham marriage you all think the common law marriage is implied to be), and have that “clergy” conduct a nice, secular ceremony, should be trivial. If you can’t find one online in less than the 30 seconds it took me to find this service (search terms ‘oklahoma secular wedding officiant’, then I suggest you get help from your local librarian.
And oh, hey, look!
So yes, it is vapors, because the only way this can be “separate but equal” is for those that choose to not bother finding an officiant they like who is willing to perform the ceremony they want.Report
There is every indication that it does. Elsewhere in the law, it consistently uses “certificate” and “affidavit” next to one another, and says clearly that both say that you are married.Report
Unless I am missing something, this claim makes no sense. Zero. How would this law keep gay marriages boring and drab? As if there is a law that could even accomplish such a thing.
There are lots of religious officiants who have no problem performing same-sex marriage ceremonies. And I’m guessing that once the Supreme Court ruling happens, there’s going to be a lot more. Even if people don’t want to get married in a religious ceremony the can still get the stamp in the morning and hold a big effing party in the afternoon. This is exactly what I did, except the official part was in December and the party was the following October.
The only material thing that this bill does is give county clerks the ability to opt out certifying gay marriages. That’s not ideal, but it’s far from some form of travesty.
Like I said in the other thread, at some point people have to decide if they are more interested in moving towards a more liberal future or in crushing your enemies, seeing them run before you and hearing the lamentations of their women.Report
I really don’t see Reason’s stance here as partisan. It’s perfectly in-keeping with their long-held (and misguided, in my view) support of “privatizing marriage.”
As long as there is no functional difference between the certificate and the affidavit, and I don’t see one, I don’t believe the outrage is remotely warranted. I can’t say I’m in favor it (I’m somewhere in between indifferent and opposed, though on what I consider “conservative” grounds), but the Patheos and Huffpo article either gloss over or ignore the law’s actual contents and are creating a narrative that doesn’t survive five minutes of “Hey, I’m going to go read the law” scrutiny.
My wife and I weren’t married by a pastor, but a judge-for-hire. If we’d been married in Oklahoma, we likely would have gone the affadavit route. I suspect this is disproportionately true of the folks at Reason, too. I suspect that some notary publics will get some business attending secular wedding ceremonies, and that others will have a non-binding ceremony before or after signing and turning in the affidavit.
I would prefer it if Oklahoma went the Wyoming route and didn’t require ministerial certification. But there is the ULC, and Oklahoma accepts that.Report
As long as we all wind up at the same place, why does it matter that some people have to sit in back?Report
So, in this analogy, marriage is a building that you enter either through the front or the back or a big room with seats in either the front or the back?Report
Yeah, I’m not seeing that at all.Report
Maybe marriage is like a car that, if you want it to seat more than two people, some of them have to sit in back?Report
It doesn’t strike anyone else as unseemly that the clergy can grant a marriage license, but couples without get the affidavit for “common-law marriage”, i.e. deciding to regularize an illicit relationship? Whatever.Report
I’d prefer they replaced “Common Law” with “Civil” or something, but the “Marriage” is the important part.Report
If gay people and those who are neither Christian nor Jewish don’t get to have a wedding that has legal force, but straight Judeo-Christians do, this doesn’t strike you as a big problem?
It’s a big ole F U from the state to you on the occasion of your declaring an everlasting union. “We can’t avoid your marrying, but we can at least avoid being civil about it.”Report
Dragonfrog, the verbiage about what religious people can perform a wedding ceremony “with force” is unchanged between existing law and proposed law.Report
@mike-schilling
Yes, it does to me. But it’s also part and parcel of what comes with allowing “clergy” to solemnize any marriage with the force of law. I do think it’s weird that people can have their ceremony in a church and when the pastor/priest/rabbi/misc. signs the document, that’s the legal pronouncement of the marriage. That’s why I’d prefer to have just one legal thing done for legal marriage (at the cost of a small administrative fee) and to have the ceremony to be whatever the celebrants want it to be.Report
@gabriel-conroy
Not really; you have to add to it the idea that marriages solemnized by clergy are realer than other marriages, which as far as I know is unique to the new regime in Oklahoma.Report
the idea that marriages solemnized by clergy are realer than other marriages, which as far as I know is unique to the new regime in Oklahoma.
Somebody grew up secular.Report
No, I was Bar Mitzvah’d and everything. Anyway, I think the number of people who think that a marriage performed by a heretic or a heathen shaman is realer than one performed by a good, God-fearing judge is small.Report
The last paragraph of Saul’s article is very poorly supported. It makes assumptions about Reason’s motives (assumptions that are unfounded, in my opinion) rather than addressing Reason’s arguments.Report
Interestingly this is sort of the solution that applies in Mexico France and Germany, marriage in law is a purely secular affair it occurs at the registrar or equivalent office. In Mexico and France this was a result of the de-clericalization of the country in the early 20th century, in Germany Bismark. In fact I don’t see why OK does not go whole hog and make option b the only one.
I agree someone will offer a pdf that you can fill in the blanks on to get notarized, which can be done at banks if you have an account there, or at most UPS stores. (Sold real estate while not present and the closing process so just got the bank’s notary to hand it, Got will notarized at the UPS store)Report
@lyle I am actually fond of the French model. Not very conservative of me, I know.
I could probably produce an affidavit in ten minutes.Report
Actually the French or Mexican model is what I would adopt in the US. The government only issues civil unions and only recognizes them (foreign marriages would be treated as civil unions in legal matters). After signing the documents, they you are free to have whatever type of religious ceremony you like as the state does not care on wit about it.Report
I’d still call it marriage (or civil marriage), but yeah.
Basically, I think we should go France or go Wyoming.Report
@mike-schilling
“realer” in what sense? As long as it’s legal and the married couple enjoys the attributes of legality, then it seems like we’re just at the status quo ante, where clergy can solemnize, but a secular version of solemnizing exists, too.Report
There are other additional steps for same-sex couples because they will need to get a lawyer involved to draft the affidavit while heterosexual couples do not. I’ve needed to use notary publics before.
As I mentioned in the Linky Friday post, many Notary Public’s are happy to come to you by appointment, and if OK has a dearth of such willing participants, I’m sure the passage of such a law will encourage such people to offer such a service.
As for the affidavit, does this honestly require a lawyer? Is it impossible to have a boilerplate affidavit of marriage? Don’t police have boilerplate affidavits for warrants & such? Would not the signed statement of a clergy act as the boilerplate affidavit you are concerned with?
As long as a clergy marriage grants the same rights & responsibilities as a “common-law” marriage does, I fail to see the issue, especially since printing an affidavit & making an appointment with a Notary is probably a less or equal to the effort of trying to schedule a clergy, etc.Report
@mad-rocket-scientist
That’s my question, and @saul-degraw ‘s argument here* seems to rest on that claim. I don’t trust the claim myself. If it’s true, then he has a point. If not, then his argument fails.
* @j-r mentions in passing that clerks can opt out. I can’t tell, because the link that Saul provided doesn’t work on my computer for some reason. But if that’s true, I think it’s a bad thing and worse than “not ideal.” Clerks shouldn’t be able to opt out. That’s not the OP’s argument, however.Report
The bill includes what is basically an ASCII version of the form to be submitted to the county clerks for recording. Drop out the couple of blank lines for the clergy (name, affiliation, signature) and put in the standard notary stuff (name, license number, signature). Because effectively, that’s all the clergy is doing here — verifying that the persons signing are actually the persons named. Heck, the notary will probably do a better job, requiring the witnesses to show some sort of photo id and comparing signatures. The pastor at my daughter’s wedding just took the witnesses’ word for it.Report
I was gonna rip off an existing document from BCBS, which already has an Affidavit of Common Law Marriage, but that would work too.Report
Oh, and that Judeo-Christian Clergy requirement? Dead on First Amendment grounds the moment someone bothers to file suit. The guy who wrote the bill knows it, everyone who voted for it knows it, but including it is red meat for the voters, and since legislators don’t pay a price for submitting or voting for laws that are clearly unconstitutional in some regard, he can only benefit from including it, and then crying foul when the “activist courts” legislate from the bench & overturn it.Report
@mad-rocket-scientist hits the ball out of the park once again.Report
Thank you @zic.Report
After bothering to google the bill and read it, Here: http://webserver1.lsb.state.ok.us/cf_pdf/2015-16%20COMMITTEE%20AMENDMENTS/House/HB1125%20FULLPCS1%20TODD%20RUSS-EK.PDF
I’d say that it’s mostly an attempt to eliminate a two-step state process — issuing a marriage license followed up by registering that license, into a single-step process of ‘someone marries two people, and then registers their marriage certificate.’ It will be interesting to see if the clerks where these marriages are registered accept non-conforming marriages, say a pagan ceremony done naked under the full moon, etc., as religious vs. common law marriages.Report
Nothing in the law changes the verbiage of who is allowed to conduct ceremonies, except for the elimination of judges. If they were allowed to before, I see no reason to believe that they will not be allowed to going forward.Report
Well exactly – you used to be able to have either a secular authority or a religious authority (from only two religions, presumably just as unconstitutional now as it was before) perform a legally binding marriage ceremony.
Now you can either have a religious authority perform a legally binding marriage ceremony, or you can declare yourselves married without a ceremony and we’ll be damned if we let a secular authority actually express approval of the thing – whatever durn-burn hippy-dancing flower ceremony thing that has no legal force, and stop pretending it does.Report
In current practice, the ability to perform marriage is not actually limited to two religions. They expressly allow Bahaii ceremonies, and allow ULC ceremonies, neither of which are considered Christian or Jewish.
And that verbiage is unchanged.Report
@dragonfrog
When I got married (legally married, I celebrated with friends at a later date), it was a two-step process. I went to the courthouse to get a license in the morning. That evening I went to an officiant, who married us, signed the license and then filed it with the state.
If I am reading this bill correctly (please let me know if I am not), all it does is eliminate step one of that process.
Do you really think there are that many people so invested in the idea of official approval from the state of Oklahoma that they are going to be mad that they no longer have to go stand in line at the courthouse/country clerk’s office so that some random bureaucrat can print out and stamp a piece of paper?Report
@j-r
As I read it, the law includes removing the requirement for a marriage license, but that’s not its only effect.
It also
– removes the ability of a judge to be an officiant at a legally recognized wedding, leaving only Christian priests, ministers, and rabbis.
– replaces the possibility of a secular wedding that carries legal weight, with the ability to get married without any wedding at all.
As I’ve said already, it is perfectly possible that it is the long-standing practice to allow priests of other religions to perform weddings – but it is striking that the legislators would spend time drafting a law to change how marriage works in the state, and go “since we’re tinkering with marriage law, should we remove this clearly unconstitutional language that hasn’t been enforced in decades? Nah, too much bother.”Report
I suspect one of more of the people working on it wanted to leave the archaic wording in there “in respect of our heritage” or somesuch crap, and the others just wanted to move things along. There are reasons why my wife and I are uninterested in living in the south, including Oklahoma. But here, I am more interested in the practical ramifications, which seem relatively minor.
(And in case you missed it, it’s a pretty huge thread, I am actually somewhere in between indifferent and opposed to this law. I just don’t see it the same way as many of its harshest critics.)Report
In contrast to some of the other commenters on my side of this argument, I don’t necessarily think that common law marriage is viewed with a sneer. Frankly, I’m not from a part of the country where common law marriage is a thing, and I don’t know much about it or how it’s viewed culturally in the parts of the country where it still exists.
But common law doesn’t have to be seen as a bad thing, or even necessarily as a fake thing, for me to object to any arrangement which seeks to place same-sex couples in a separate category of marriage. And I recognize that this law didn’t do precisely that, but It’s neverless an obvious subtext of the law, and given the religious composition of Oklahoma, likely to be the practical effect of the law as first proposed in most regions of the state.
I object to any arrangement by which the state continues to arbitrarily distinguish between same-sex couples and opposite sex couples, Period. Even when the labels themselves are value neutral, the effect of creating those labels is to allow forces that actively work against the legitimacy of gay people to distance us from the rest of society.Report
I think a “sneer” or some sort would be necessary for legislators to go back and try to tinker with the rights of “common law spouses.”
I agree with this, didn’t agree with the whole “civil union” thing and would still have disagreed with it if they’d said “Common Law Marriage” or “Civil Marriage” pertaining only to gay marriage.
But gay/straight wasn’t the demarcation here. There were real churches to marry gay folks in Oklahoma (according to ThinkProgress) as well as what I assume would have been a cottage industry of ULC “ministers” offering secular services to gay folks. (Potentially including, according to @michael-cain , the University of Tulsa Linux Club and suchlike, though I’m not sure about that.) To the extent that there was one, it was along the lines of believer/atheist, and atheists would still have had the ULC option and maybe the Linux Club option (if they hadn’t reversed themselves on judges).
That, along with the less evasive phrasing, is why this doesn’t alarm me the way that “Civil Unions” did (or that “Civil Marriage” would have bothered me, if applied along sexual-orientation lines).
(Also, I apologize for assigning to you impressions I have gotten from others.)Report
What Judeo-Christian requirement? The law specifically provides for Bahaiian believers. The word “Christian” appears nowhere in the law (“Christ” does, in reference LDS in the same provision as Bahaii).Report
First line, second paragraph of the OP implies such a requirement.Report
I re-read the HuffPo link and there is just no way to describe it but this: they’re making stuff up.
The law they describe would be blatantly unconstitutional, but it’s fiction.Report
Oh, well, then I return to my previous state of “WTF is wrong with you people?”. Still, my point is valid, politicians do crap like this all the time & force citizens to spend money & resources filing lawsuits to get it struck.Report
Well. Oklahoma. I’d be lying if I said that I didn’t assume the worst when I first read the headline.Report
@will-truman @mad-rocket-scientist
The bill itself starts off talking about rabbis, priests, and ministers at the start.
I generally concur with MRS, politicians do stuff like this all the time and never suffer a penalty because red meat. There are liberal examples of this as well but not as much in my mind (which might be a partisan mind).Report
@saul-degraw
BSDI: I’m sure there are, but such examples are not, to me, quite as obvious as the GOPs tendency to inject religion into bloody f@*&%$#! everything they touch.Report
The verbiage defining who qualifies as a preacher is carried over from existing law. If Muslims are allowed to be married in Oklahoma now – and I think we would know if they weren’t – they would be allowed to under the new law. It has only been amended to remove judges from those authorized to marry people.
The sort of thing referred to does happen, but didn’t happen here.Report
Here’s the language in the bill:
And the law specifically empowers judges to conduct weddings:
Report
@zic Thank you for the clarification. I thought the part about the judges had been struck out, but I must be thinking of a different part.Report
@zic – The current law allows judges to perform weddings. The main point of the bill is to remove the authority of judges to perform weddings, and to replace that authority with the ability of those not willing or able to have a religious wedding, to declare themselves married without the benefit of a ceremony recognized by the state as meaning anything (and I don’t see how to read that law except specifically as Christian or Jewish).
http://webserver1.lsb.state.ok.us/cf_pdf/2015-16%20INT/hB/HB1125%20INT.PDF
Quoting the text without the formatting of the bill totally misses what it’s doing.
text being removed from the lawtext being added to the law
text not being changed.
Here’s the second section you quote, with the formatting intact:
(fingers crossed I got the formatting right.Report
(Sure enough, I got the formatting wrong. Apparently we don’t have the underline tag here, which is what the bill uses. I’ll use ‘strong’ instead)
text strucktext added
text unchanged
Report
Yeah, I’m confused. I could have sworn it was crossed out, but in the version I’m looking at, it’s not.
And it looks like the one I am looking at is more recent (2/18 vs 1/15). So it looks like the struck it out, but then put it back in?Report
(also B.1 is struck, and subsections from B.2 onward are re-numbered, etc.)Report
@will-truman Oh that’s weird – the version you just linked to renders for me (in Chrome) with the bit about the judge still struck out.Report
Also, B1 is no longer struck, and the others are not renumbered.Report
Does it say “COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY AND CIVIL PROCEDURE,
dated 02/18/2015 – DO PASS, As Amended.” at the end? Or does it say something about 1/15?Report
I clicked on your “the version I’m looking at” link. Yes, it says “COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY AND CIVIL PROCEDURE,
dated 02/18/2015 – DO PASS, As Amended.”Report
Now I’m going to start doubting my faculties – you’re right, the whole bit removing judges as marriage officiants is still present, no longer struck, in the version as passed.Report
Maybe there was some caching issue?Report
@will-truman no, it’s a reflection of what actually went down:
Source: http://thinkprogress.org/lgbt/2015/03/13/3633556/is-this-real-life/Report
From the ThinkProgress piece:
and later this:
That is some confused thinking. If there were always clergy ready to perform same-sex marriages (as I’ve pointed out a bunch of times in this thread), how was the bill ever “poised to hinder marriage equality? You would think that upon getting to that second bit, the writer would have gone back and considered his lede.
This is what happens when you spend too much time focusing on the intentions of political actors (because what you really care about is partisan tribal battling) rather than the actual effects of what they are proposing.Report
According to the Oklahoma legislature’s bill tracking system and journals — ah, memories of days as a legislative staffer, keeping close track of where all the sh*t I was responsible for was in the process — the 2/28 committee report is the bill as approved by the House. Hasn’t been introduced in the Senate yet, although there is a Senate sponsor.Report
and so we witness sausage in the making.
In so far as the bill eliminates the marriage two-step — apply for a license and then register the marriage, I like that for a silver sausage casing.Report
Apparently, I never hit “Post Comment” after writing this yesterday.
Here are, more or less, my broad and I think more-or-less final thoughts on the subject. (Written in response to the @zic comment with the link to ThinkProgress)
What I initially read the primary aim to be was to prevent clerks and judges from having to perform SSM. Why they considered there to be a huge difference between handing out a marriage certificate and filing one away, I don’t know. But if they did, that goal has still been accomplished. And the judge part never needed to be taken out because, as I understand it, judges already had discretion on who to marry and not to marry. (My own view is that judges and clerks should not be able to discriminate. I have greater sympathy for private actors than a lot of people here, but judges and clerks aren’t private.)
I still don’t see an all-important distinction between the certificate and the affidavit, until or unless we had reason to believe that they would not be accepted by other states. The feds would have taken it (they accept non-affidavit common law) and everything I read suggested that other states would, too (though I didn’t get Official Confirmation on that).
Given that the verbiage of who could conduct marriages was left unchanged (except, temporarily, the part about judges), I did not think and do not think the fears about “only Christian and Jews can get married” were particularly reasonable. They accepted ULC before, and I have no reason to believe they will continue to accept them if this law passes.
With or without the judges re-inserted in, I still don’t favor the legislation. As mentioned, I don’t believe that clerks and judges are particularly worth having their consciences protected in this regard.
The funny thing is, though, that I still kind of like the affidavit idea, and if this goes forward I will consider that a plus even if they don’t change the verbiage to “Civil Marriage” as I would prefer they do. I actually found myself thinking a while back that notaries should be able to marry people (which wasn’t exactly what this law did, but is close enough). I support Wyoming’s laws in this regard, and think that the more people who can marry the better, provided we can maintain some accountability (which we have in spades when it comes to notaries).Report
I’m actually a pretty big fan of California’s laws in this regard (shock, right?)
It doesn’t get quite so far as allowing notaries to marry, but it does allow marriages to be conducted by a wide variety of government officials, and more importantly allows anyone to be temporarily deputized to conduct a marriage without having to apply to be minister of some phony bullshit internet church.
As far as the distinction between common law affidavits and marriage certificates, given the fact that secular authorities will still be able to conduct marriages, all of my “separate but equal is not equal” arguments go by the wayside. But one worry that remains is that even if the two statuses are identical right now, their existence makes it easy for the state to create distinctions with future legislation. Now, I don’t think such legislation would survive a court challenge, but I don’t want to put couples into a position where they have to hire a lawyer to defend their marriage rights.Report
Alan, One of the things I noticed when I was doing my surfing yesterday is that every instance of a state eliminating common law marriage has only applied going forward. I did not find a single case of a common law married couple’s rights being retroactively nullified. I’ve not seen any reference to it even being tried, even though “got rid of common law marriage” is not a rare thing among states.
Why would they?
The conventional wisdom throughout this thread has been that common law is something that religious conservatives hold in contempt. And yet, I find little support for that at all. It’s disproportionately the religious and rural states that have CLM at all (of the ten states: seven are red, two are purple, and one is blue along with DC).
The opposition and sneering I’ve seen is not a religious thing, but a class thing emanating from the middle and upper. But I don’t see these groups going out of their way to do much about it, except retire it going forward. And I don’t see social conservatives doing it, either, because they’d be screwing over some of their own people. It’s states like Utah, Texas, and South Carolina that are actually the hold-outs. Most states have just junked it altogether.
The affidavit common law marriages aren’t quite the same thing as the other common law marriages, but I think the view that the association made in the legislation was sneering in tone rests on some assumptions. I mean, this actually makes common law marriage a lot easier than it has been before, and clears up some of the ambiguity that currently exists as to whether or not common law marriage is legal within the state.Report
I say we ought to redo the constitution so that things like this are penalized. If you make something knowingly unconstitutional, shouldn’t YOU have to pay the court costs??Report
Good luck with that one…..Report
Well as a gay person I really don’t give a fig so long as it doesn’t impose any special burden of same sex marriage. Right now all the screeching seems to be debating whether it does or doesn’t. I am not clear on whether that’s the case or not.Report
This is probably the case.
As I said above, I think it is a way of allowing Oklahoma to recognize SSM without getting anything more than prefunctory about it. This in my opinion is wrong.Report
You’d prefer that they throw a parade?Report
No, he wants the Clerks who think gay people have cooties to have to suck it up or quit. While I can most certainly appreciate the sentiment of “stop being such a stick in the mud & do your damn job”, I care more about results than I do about making sure the opposition eats a healthy helping of crow.Report
Do we know enough about this situation to know that the reluctance is actually coming from the clerks and that getting the clerks out of the business of issuing marriage certificates isn’t a convenient sleight of hand on the part of politicians and their constituents?Report
@j-r
I have no idea, OK is a long way from home.Report
Saul, I’d like you to expand on that if you can. Also if you’d note Trumwill’s response to me a little ways down he’s got a brief summary of his opinion on it there. Would you say you agree or disagree with it factually speaking?Report
@north
@mad-rocket-scientist has the right of it.
When you go to City Hall or to County Court to get a marriage license, it involves the acknowledgment of the State that your marriage is legal, valid, and accepted. There might even be a nice little ceremony. I’ve seen plenty of Same-Sex Marriage and Heterosexual couples post marriage pictures of ceremonies that occur in Court and/or City Hall in San Francisco and other places. The Clerk is an officer and representative of Government and I can see how dealing with an official is having the validity of your government.
Here it seems to take that and just make it perfunctory as MRS notes. You do all the work and then just have a clerk file the certificate like they would file anything else. It is a grumbling “acceptance” of SSM but not really.Report
Again, as long as the end result is the state recognizes marriage and all that goes with it, I don’t care if the Clerks get taken out of the loop except to hold their moral noses and do their damn jobs.Report
@Saul, I think I get the emotional place you’re coming from on it. From a similar side I’d actually enjoy having Maggie Gallagher sitting at a gay wedding all sour faced and annoyed as everyone else parties. Bonus points if it was her son’s wedding.
But those are not useful impulses. Perfunctory is good enough. SSM supporters should really consider taking it and being satisfied (though they’re well within their rights to tell right wing libertarians to stuff it). Accepting the substance and ignoring the fluff is how ya win the war. Also not grinding your opponents face in it is important, it’s how ya win the peace.Report
Like when interracial marriage was legalized in Virginia only when performed by Klan members in full regalia. The important thing was that they could get married.Report
For what it’s worth, @mike-schilling , judges will still be marrying people if this passes (along with religious-in-name-only ULC folks and the like).Report
@mike-schilling
You’ve got to work on your analogies, they suck today.Report
That one wasn’t an analogy, it was a reductio.
The whole “common-law” thing just sticks in my craw. When you hear “common-law marriage”, you don’t exactly think international lawyer or captain of industry, you think Cletus from the Simpsons. So it’s like they said “Marriage? Well we do have this kind of marriage whose name makes even Jeff Foxworthy cringe. They can have that.”Report
Even though I might prefer a different term, I’m just genuinely not bothered by the term. I don’t think I would be self-conscious about my marriage technically being a common law one.
Civil Union wound bother me. Quite a bit. But not CLM, particularly in a state where secular marriages were frequently given that legal term.Report
For me, I got married long before I solemnized.
The part that involved a judge was merely the part that I had to do for manila folder purposes.
Had there been a God, I would have been married in His eyes a year prior to the stuff that involved me drawing my signature on various pieces of paper.Report
@mike-schilling
As I and others have been pointing out, the criteria for what constitutes clergy in OK is so loose (as it should be that finding, or having a loved one become, a secular Officiant should be trivial, & if judges can also fill that role, then the only people who would have a CLM are those who choose to go that route.
No need to have a Klan leader do it.Report
It verifiably does not impose any special burden on same sex marriage. SSM won’t commence when it is signed, however, because of a constitutional amendment. Once that gets overturned, though, it does nothing that treats the two differently.
SSM couples who find clergy will be able to marry the same way heteros do with clergy.
SSM couples who cannot or choose not to find clergy will be able to marry the same way heteros without clergy do.
Anyone who says otherwise is clearly and absolutely wrong. The only question are whether couples in the second category are being treated fairly, gay or straight. It seems to me that they are, and nothing the opponents have said convinces me otherwise.Report
(Warning: Contains a question that a lawyer type may need to answer)
Like Trumwill, when I got married, it was to a judge. When we were done, we signed some stuff and went home as a married couple.
When I was the best man at a friend’s (church) wedding, he did all of the churchy stuff at the front of the church (hurray, I didn’t faint!) and then (after the handshaking and hugging but before we went to the reception) he, she, and the officiant signed some paperwork at the back that had to be taken to city hall.
My question is this (AND WE MAY NEED A LAWYER FOR THIS NEXT PART): if the paperwork was *NOT* taken to city hall… then what?Report
Jaybird, I don’t think you need a lawyer to answer a question like that. If you fill out a car registration, and never file it, is your car legal with the government? If you fill out a fishing license application and never turn it in, is it legal for you to fish? If you fill out business license forms and never take them to city hall, is your business a legal one? If you fill out divorce forms, and take them home to prop up the corner of your table instead of giving them to the clerk, are you divorced? If you give somebody money for the house he owns, and then set the change of ownership title forms on fire to light your cigar with, do you have a clear legal title to the house? You know none of those things would be legal. Government forms aren’t magic. They don’t mysteriously give you legal rights while residing in your bedroom bureau drawer. If you don’t actually file government papers, the government doesn’t (and can’t) recognize whatever it was on those papers it never saw. Religious rites of Holy Matrimony are entirely and absolutely separate from government-recognized civil marriage. Even in Alabama’s weird new law, it is the actual filing of a marriage certificate or affadavit that makes the marriage legal. And, yes, in addition to the many thousands who get a civil marriage but not a religious Holy Matrimony rite, there are in this country a number of people who deliberately choose to have a religious rite but not government’s civil marriage. They not only don’t file the government forms, they don’t even fill them out.Report
Hopefully they don’t live in common law states! That’s where it could get sticky…Report
@myrtlemartha Thank you. That’s what I suspected.
This goes back to the whole distinction between Marriage In The Eyes Of God and Marriage In The Eyes Of The State and how we are usually talking about two seriously different things in any given conversation even though we’re using the same word.Report
Just a comment on this. It turns out the officiant at one of my grandparents weddings did not sent the paper back to city hall. Of course they acted as married for 52 years so it did not really matter. (My parents found this out doing genealogy. I wonder how many of these do exist in the records around the country. ) Now it turns out that since it was Indiana before 1958 they had effectively a common law marriage. (they were married in 1920 )Report
That’s what the concept of putative marriage should cover.Report
Is that like “the punishment for bigamy is having two wives?”Report
Oh, I thought you said ‘punitive marriage’.
never mind.Report
I thought this was a response to something else I said, and that it was actually kind of clever.Report
The wrinkle that I don’t know about here and would need to be examined by somebody familiar with state laws pretty much everywhere is how this affects other state’s recognitions of Oklahoma-issued marriages.
My understanding is that states are generally required to recognize other states’ marriages, but my understanding is also that states have their own legislative and regulatory frameworks and changing Oklahoma law can have a disparate effect on folks who are married (any which way) in Oklahoma who then travel outside Oklahoma.
Because somewhere in some state there is a list of acceptable documentation you need in order to show that you have access to legally entitled stuff in that state based upon the fact that you are married, and on that list is going to be “a marriage licensed issued by a State in the United States, or for marriages from other countries, blah, foo, or bar.”
So some couple that gets married via marriage certificate v. marriage license in Oklahoma and then moves to Maine is going to spend a lot of time “proving” to Maine that they’re actually married because somebody doesn’t have the piece of paper with the right title on it.
Which is effed. We don’t need this sort of complexity *added* to our law and regulatory schemes, which is why the Reason article is wrong.Report
“Where’s your long-form marriage certificate?”Report
That was actually the tact I took in my LF blurb, sorta.Report
I got married in WI. Eight years ago I moved to WA. I have never, not once, had to provide any documentation to the state of WA that I was legally married in WI. They took it on face value, and always have.
The last time I had to produce my marriage certificate to verify my marriage to a government official was for the DOD, right after I got married, so my wife could get a dependent’s ID.
Now I can imagine there are times when a state may require proof of marriage from another state for whatever reason. But given that every state has their own way of doing marriages (just as they all have their own ways of doing birth certificates), and I’ve never had a state question the veracity of the birth records I provide, despite the impossibility of each & every state clerk knowing what a valid BC looks like from every state & through every format revision.
So exactly how, if a couple married in OK have a record of marriage that the state of OK recognizes, is this going to be an issue unless the state in question decides to make a stink about it*? And if they do, how many times do you think this will happen before the kinks are all worked out & everyone is happy?
*I see this as a problem in states that have more stridently resisted SSM than those that have embraced it.Report
You will need to produce the certificate if you file for spousal social security retirement benefits, or survivor benefits as the case may beReport
You will need to produce the certificate if you file for spousal social security retirement benefits, or survivor benefits as the case may be.Report
@lyle
OK, OK, I heard you the first time! 😉Report
Under the proposed law, those married by a clergyman have a regular marriage. Those without only have a common law marriage.
I’m assuming that both forms provide the same rights and benefits at the state and federal levels, and given full faith and credit by other states–Though if someone with a bit of knowledge in this area of the law thinks otherwise, please chime in.
I nevertheless maintain that this level of separation puts those couples who do not pursue a religious wedding in a second class marriage.
I don’t see this as much different than earlier attempts to stave off same-sex marriage by introducing civil unions. Even where the on-paper rights are the same, the state is still explicitly puts one class of couple in one box and a different class in the other box, with the obvious but unstated conclusion that one class of couple is simply less worthy than the other.
This is something with real-world effects. Firstly in the practical sense, where couples with civil unions were unable to exercise their legal rights without getting lawyers involved because some bureaucrat was “unclear” about the law. But more importantly, This matters in a broader cultural sense, because laws set cultural norms.
This is where so much libertarian thought just fails. People use the state as a framework for their own moral and ethical beliefs. I think that’s manifestly clear when you track beliefs about same-sex marriage. We like to think of the rapid shift in attitudes about same-sex marriage as the cause for legal recognition of those marriages, but the truth is the other way around. The American public has come to support same sex marriage because they have been made legal by the government.Report
FTR, I haven’t found a firm confirmation, but everything I have found on common-law marriage says that all fifty states – including the majority which do not have them internally – recognize common law marriages in states that allow for it.
Which, assuming true, is why I do not share the concerns that Patrick lays out. It would make this politically toxic, if there were genuine fears that came to fruition.
I opposed (and oppose) Civil Unions pretty much on the basis you outline. I don’t view this in the same context, even though under this regime my own marriage would technically be “Common Law.”Report
Let’s recognize that statement for what it is: a proposition and not an established fact. Laws often attempt to set norms; sometimes successfully, sometimes not so much. Alcohol prohibition attempted to set a cultural norm of temperance and, luckily, it failed miserably. There are certainly any number of conservatives fighting a rearguard action against the tide of same-sex marriage, but they are unlikely to be successful. As others here have put it, at this point we are just negotiating the terms of surrender.
From a practical point, even if you were correct about two classes of marriage, nothing that you’ve said about same-sex marriage follows. Why? Because lots of clergy have no problem marrying same-sex couples. And if this law really were as bad as you think it is, there’s a good chance that lots more clergy would spring up in Oklahoma to fill any shortages in the market for people looking for
If there were discrimination, it wouldn’t be against same-sex marriages. It would be against anyone, same-sex or straight, that did not want to get married by a religious officiant. And even then, there are probably any number of non-denominational, universalist, religious-light organizations that qualify are clergy under Oklahoma law.
Reading this statement helps me understand why you feel it necessary to make the first statement. Basically, you’ve decided that laws establish norms; therefore, laws cannot be agnostic as to norms. As your first statement is flawed, so is this one.
Political liberalism (widely defined) is essentially the same as libertarian thought in this area. The law exists to do two things: stake out a place where individuals have the fullest possible realization of their individual rights, while simultaneously protecting the individual from the tyranny of the majority. Far from being a failure, it’s actually been the framework that allows 300 million people from every ethnicity, religion and creed to occupy the same country without completely killing each other off.Report
Also, Oklahoma’s requirements to be able to marry people as clergy are, contrary to the HuffPo article, not stringent.Report
@j-r , If you don’t think prohibition sets norms, you haven’t been paying attention to the drug war.
This isn’t some belief I decided was true. This is an observation developed primarily from following the progress of same-sex marriage over the last decade.
I have to go, but I’ll have plenty more to say about laws and their effect on norms when I get home tonight, assuming someone beats me to it.Report
I am curious to hear the rest, but this seems like an argument in the exact opposite direction. If prohibition could dictate norms, one would think that it would be slightly more successful.Report
@alan-scott
I would suggest that the drug war has, in reality, failed to set any norms on the population, despite draconian efforts to do so.
Amongst police, however, more than a few troubling norms have become set.Report
I would suggest that the drug war has, in reality, failed to set any norms on the population, despite draconian efforts to do so.
I’ll contest this, slightly.
There are plenty of folks who did drugs as teenagers who now talk all about how it needs to stay illegal because then maybe more kids might do drugs.Report
I favor decriminalization, if not outright legalization, of perhaps all drugs; yet I suspect @alan-scott is still more right than wrong here.
Although I see the Drug War as a massively-expensive morally-wrongheaded failure with all kinds of unpleasant knock-on effects, if every substance were made legal tomorrow, a non-zero number of knuckleheads would try heroin who wouldn’t have otherwise, just to see what it’s like. Not just because it’s more readily available, and not just because they wouldn’t have to worry about going to jail anymore, but because they would assume that if the ban has been lifted, then heroin can’t be all THAT bad.
And I am sure you have all had the frustrating experience of arguing around in circles with conservatives about why, say, marijuana use is bad and alcohol use isn’t (because marijuana is *illegal*, you see).Report
That is fine, because if you go back to the original comments on this you will see that being more right than wrong still makes me right.
What I said was that the statement, “laws set cultural norms,” is best understood as a proposition and not a statement of fact. Sometimes laws attempt to set cultural norms and succeed. Sometimes laws attempt to set cultural norms and fail outright. And sometimes laws do not set cultural norms, but simply acknowledge norms that developed independently of the law. What most often happens is that laws attempt to influence norms and do just that, just in ways not precisely intended.
So, it may well be that Russ attempted to draft a law that he thinks will defend his conception of what marriage ought to be, but actually ended up writing a bill that is ambiguous to outright supportive of marriage equality (depending on whether judges stay in or out). If that is the case, then the argument about norms is not particularly important; unless, again, what you really care about is crushing your enemies, seeing them run before you, and hearing the lamentation of their women.Report
@patrick
But is that a social norm as a result of the drug war, or just a common reaction of adults/parents remembering the follies of their youth? That seems a common enough reaction in other areas that I’d suggest there is a deeper trend.Report
@j-r , seeing this, it’s pretty clear that each of us is reacting to what we thought the other person said, rather than what the other person actually intended to communicate. I more or less agree with you when you say
My only addition would be that this is true even when the laws weren’t written with any regard to cultural norms in the first place.
Because of anti-drug laws, we live in a society where vast swaths of the population believe that when a harmless teenager is murdered, that murder is basically justified because the teenager in question smokes pot. That is not a pattern of belief that would exist absent the drug war.
And as relatively harmless as they are now, marriage laws across our nation once gave legitimacy to the physical and sexual abuse of wives by their husbands.
My objection to the OK law is that this law as originally drafted was likely to establish certain norms that are harmful to gay couples and harmful to non-believers of any sexual orientation, even when from a legal standpoint all couples enjoy the same rights. Which is not exactly a new thought in the area of civil rights: The finding of Brown v. Board of education was that segregation was harmful even when the White schools and Black schools were materially similar in quality.
In particular, though, I object to the line of libertarian thinking that sees such a law as a victory. The one that expects gays and other marginalized populations to cheer along whenever power is taken out of the hands of the state and given to the people–even when in a practice the effect is to take power out of the hands of the state and give it to our enemies.Report
That said, it seems that the bill that was passed differed significantly from the earlier version which I read, and that it does not prohibit judges from conduction secular weddings.
On the one hand, That change makes me object much less to the bill on equal protection grounds.
On the other hand, that means we have a legislature carrying forward with a bill that has been stripped of its intended purpose. And while I do object to the way some libertarians are myopic about civil rights, one aspect in which I am very libertarian is that I think any law that fails to serve its intended purpose should be put to the torch instead of being allowed to turn into a self-perpetuating obstacle.Report
The alleged intention had to do with clerks rather than judges, which may have been why Russ was so quick to compromise on whether judges could perform the ceremonies.
The Reason article actually states, clear as day, that judges would still be able to perform ceremonies. I guess we all didn’t notice, forgot, or thought they had made (another) mistake.Report
The alleged intention had to do with clerks rather than judges, which may have been why Russ was so quick to compromise on whether judges could perform the ceremonies.
So if the law is supposed to protect clerks from the horrors of having to issue a same-sex marriage license, would those same clerks need another law to protect them from having to register a same-sex marriage certificate? And what’s to stop those same clerks from taking offense to registering common-law marriages, too?
At some point, clerks have a responsibility to administer the public’s needs, even if those needs are different from the clerk’s beliefs, non? If a clerk is so squeamish that registering a same-sex marriage license offends their sensibilities and will send them to hell for all eternity, perhaps he or she is in the wrong line of work.Report
Russ sees a difference between issuing a license and certificate vs just filing a marriage certificate or affidavit that originated somewhere else. I can sort of see it, but I don’t view it as hugely significant and am not particularly sympathetic to the plight of the clerk anyway (a clerk is a public actor in the clearest meaning of the words). Big picture, though, I’m mostly concerned whether the marriages occur, and the Oklahoma clerks must file them.Report
I do see the possibility for lots of entertainment from the religious right as they stake out their moral territory; sliced and diced rules like it’s not okay to issue a license for SSM, but it is okay to file a certificate. I wonder at other stuff — like excise taxes or registrations of cars owned by same-sex couples in both names. Or school employees having to deal with same-sex parents. Imagine the horrors of having to inspect a house for local building code that a same-sex couple might live in.
This is an endless rabbit hole of potential rules of what’s okay to the public employee as they seek out ever-more refined ways to discriminate against gays and atheists; and if it weren’t such a sickening display of religious bigotry that makes life difficult for people just trying to go about their lives, it would be very entertaining.Report
@zic
As I believe jaybird already said, the conflict is won, now we are just negotiating the terms of surrender.Report
@mad-rocket-scientist
Maybe. But culture wars in the US remind me of the wars for supremacy in Baroque Europe; and terms of surrender are often a way to purchase time for devising a new strategy of attack.Report
Alan, you are absolutely correct.
“Common law” marriage is, in the American South at least, very often used as a term of insult. “Oh, those people? They’re not even REALLY married, you know – just common law.” In my long life in the deep south, I have heard that said with a sneer more times than I can count. The very fact that Alabama has chosen those two words to describe marriage by registering an affadavit (when of course what is otherwise meant by a “common law marriage” is one that has not been registered with the government at all) suggests to me that they deliberately chose a term that many would see as having a negative, lower-value meaning.
The new law could simply have said that people can choose an affadavit to create their own “certificate of marriage” rather than an “affadavit of common-law marriage.” There was absolutely no need to create a separate name. So what Alabama is trying to put in place is a system that says in essence: “If you meet with the approval of a few religions that we are establishing as having special government authority, or the approval of one of a relatively small number of judges also likely to be conservative and/or religious, then you may have what the whole country refers to as a “marriage.” However, if you’re Hindu or atheist or have a pimple on your nose or for any other reason can’t get the proper social approval, we will brand you forever with the negative term “common-law married” so everyone will know you are one of those people – you know, the ones who are not like us.”
Separate but equal is not equal, and labelling people who can’t get favored social approval for their marriage is certainly going to end up being ruled unconstitutional. After all, what is the difference between the new law and the old law? Instead of going by the government to pick up a form and fill it out with appropriate witnesses, one has to print up one’s own form and fill it out with appropriate witnesses. That isn’t something requiring a new law, just a new office regulation. No, essentially the only real difference is the creation of a new term for people who don’t have the approval of those that Alabama considers socially important people. The creation of second-class status for some marriages is the point, and the only real point, of the law.Report
I can’t find a reference to what’s going on with Alabama and common law marriages.Report
First, it’s OK, not AL.
Second, as Will noted above, if it is really important to a couple to have a Certificate of Marriage as opposed to Common Law Marriage (even though both impart the same rights & responsibilities), they merely need to have a clergy of some kind perform the ceremony. And since it is pathetically easy to become clergy in any state, of any denomination, even non-denominations, there will be a ready supply of people willing to act as clergy to marry anyone who wants it.
Hell, there already is an industry to create such clergy.Report
Will, what are you talking about that you can’t find? You quoted it part of it yourself. “Affadavit of common law marriage” clearly isn’t just a passing descriptive term, but an actual category that the state will use permanently in filing the marriage record. The new law sets up two categories of marriage depending entirely on whether the couple obtains the social approval of religious figures and judges, approval utterly ungoverned by law, leaving those approvals free to be withheld because of the couple’s race or sexual orientation or the fact that they live on the wrong side of town:
“Any entity requiring proof of identity or marital status shall accept a certified copy of the marriage certificate or affidavit of common law marriage that has been filed with the court clerk. Any reference in the Oklahoma Statutes requiring a marriage license as proof of identity or marital status shall be interpreted to include a marriage certificate or affidavit of common law marriage on or after November 1, 2015.”Report
It was the Alabama that was throwing me. I’m well familiar with the situation in Oklahoma.
The reason that the Alabama vs Oklahoma distinction is important is because, as @mad-rocket-scientist says, Oklahoma actually has loose rules when it comes to clergy, as opposed to “If you meet with the approval of a few religions…”… but I wasn’t going to say something if we were talking about Alabama, because I’m less familiar with how stringent they are.Report
credit where credit is due, Oklahoma accepts marriages conducted by clergy of any faith.
Now, like any law that assumes all religions are just protestants in funny hats, I’m sure this law will have weird interactions with some faiths, since I’m sure there are some religious traditions in which the clergy traditionally is not involved in marriage.
But this is clearly a law that targets secularism, not minority religions.Report
And let it be said, as a very secular atheist, I still think this is a perfectly fine way to get this done.Report
Mad Rocket Scientist, so all any atheist has to do to get an actual marriage certificate is go through a fake religious ceremony. How about this? If Alabama doesn’t want its clerks to hand out marriage licenses, all it had to do is say all marriages will be recorded by affadavit, with witnesses who are clergy or judges or bar room janitors or anybody you please. All affadavit filings will be recorded as certificates of marriage. The primary problem is the fact that two categories were created based on social approval, real or faked. The secondary problem is the fact the one with religious or judge approvals get the name used in the rest of the country for marriages registered with the government and the other is called by a phrase used elsewhere to mean non-registered with the government.Report
@myrtlemartha
Again, Oklahoma, NOT Alabama. I could care less right now what Alabama does regarding marriage unless they have finally taken Ol’ Roy out back behind the woodshed & shot him, like any decent state would have done over a decade ago.
And yes, as an atheist myself, I would find a “clergy” who was registered through a service like the one Will & I linked to, or ask a dear friend or family member who was willing to perform the ceremony to get registered (I think I can pay the $30 for the package to do so). My grandmother married me, she’s registered as a Christian minister, but performed a very nice, secular ceremony for me because she loves me.
Why is everyone having a big case of the vapors over a whole bunch of hypotheticals & hyperbole here?Report
Yes, I meant Oklahoma. My eyesight isn’t good, and I don’t always catch my typing errors. I’m sorry about that.
How lovely that your dear grandmother performed a secular marriage for you under cover of her religious authorization. Family is a wonderful thing; I too value it highly. How unlovely that you appear to have no understanding of, or empathy for, people who don’t have such grandmothers (many Christians would have refused on the basis that it is a form of lying) and who don’t want a fake-religious marriage record, yet do want their registered marriage recorded as a “marriage” and not a “common-law marriage.”
If you consider it a matter of “the vapors” to object to people being put into separate categories with separate (and very unequal) names, then you are entitled to your opinion. Those of us who have suffered personally from “separate but equal” terminology know that there is no such thing. Separate is never equal, though you are right that some people (yourself in this case, as you are already married and will never have to deal with your relationship being labelled negatively by the government) are privileged to suffer less than others.
No matter. Such a law is clearly unconstitutional, and will not last long.Report
@myrtlemartha
All of that is only true if, in fact, this is a case of “separate but equal” and since we don’t even have a clear, unambiguous understanding of what the law would do (for instance, it’s not quite clear whether judges would still be able to perform marriages), we are just not in a position to say one way or the other.Report
Will, if you are familiar with the fact that in Oklahoma, reference to those who preach the gospel also includes Hindu practitioners, Satanists, pagans, and followers of the Flying Spaghetti Monster, etc. could you please point me to such documentation? I wasn’t aware of that fact. Thanks.Report
The law doesn’t change who can and cannot perform ceremonies, with the exception of removing judges from the list. The verbiage in the proposed law is exactly the same as it is in the law as it currently exist. And as it currently exists, it accepts ULC ordination. Given that ULC ordination is specifically designed for the sake of performing marriages, if they accept that – and they currently do – I have no reason to believe that they are limiting themselves to Judeo-Christian religion. In fact, given that Bahaii is specifically mentioned (as one of the religions that don’t really have pastors but can still marry people), suggesting that this will limit marriage ceremonies to Judeo-Christian sects seems to me to unjustified speculation.Report
It is never unjustified speculation to assume that a new law means what it says. States’ records are filled with old, unenforceable laws, and so the fact there is an old one on the books limiting marriage officiants to a few religious groups is irrelvant. A new law is an entirely different matter. This law says, very clearly, that it is establishing two categories of marriage – those where the couple has found a judge or a member of a specific list of religious groups willing to be a part of their legal record and those who don’t want to, or cannot find, such approval. The law also clearly states that those with approval get a certificate of marriage (“marriage” being the country-wide positive term) and those without that approval in writing will be recorded with the state in a separate category as having an affadavit of common-law marriage (with “common-law” being an often negative term for a kind of marriage not even granted in some states.) Your repeated assurance that the law just really, really, really doesn’t mean what it says might be reassuring to me if I knew you. But as it stands, no. Any law may, in a court, end up being interpreted to mean what it actually says.Report
If they want to restrict who can perform ceremonies, they don’t need to pass a new law that says the same thing. They have the existing one, which uses the same verbiage.Report
@myrtlemartha
First of all welcome to OT.
Second, true. A lot of states keep their laws on the books when the Supreme Court rules something to be unconstitutional (like laws against Sodomy or homosexual sex) because it is the populist equivalent of shaking your fist in defiance and they don’t suffer a penalty for doing so.Report
For reference, here is the wording from the Oklahoma new law identifying which clergy may grant a Certificate of Marriage. As you see, it is clearly limited to preachers or ministers “of the Gospel,” priests or other ecclesiastical dignitaries of a “denomination” who are authorized by a “church”come from a “church” “to preach the Gospel”, plus rabbis authorized by a synagogue:
Except as provided in subsection E of this section marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in
this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.
B. 1. The judge shall place his or her order of appointment on file with the office of the court clerk of the county in which he or she resides.
2. The preacher, minister, priest, rabbi, or ecclesiastical dignitary who is a resident of this state shall have filed, in the office of the court clerk of the county in which he or she resides, a copy of the credentials or authority from his or her church or synagogue authorizing him or her to solemnize marriages.Report
And here is what current Oklahoma law says:
With the exception of the part about judges, the qualifications are the same. And the current qualifications allow ULC ministers (not a Christian faith) to perform ceremonies. And current law and proposed law both mention Bahaii the Quaker provision, which also doesn’t preach “the gospel” as Christians see it.Report
I’d also suggest that high school seniors who can demonstrate mastery of differential and integral calculus be issued a diploma, with the rest receiving a certificate of satisfactory progress. Since both represent graduation, I don’t see any grounds for objection.Report
So, we’re not in a room anymore?Report
I think you mean “a bus”. And no, you don’t need to go there any more because your progress has been satisfactory. You’ve even got a badly xeroxed document saying so.Report
Mike, precisely. I would also propose that same-sex couples receiving a certificate of marriage or an affadavit of common-law marriage be designated as “married couples” while different sex couples be referred to as “conjoined couples.” Since both get the benefits of Oklahoma law, surely no one would object.Report
“Friends with legally mandated benefits”Report
@mike-schilling
What’s supposed to be wrong with your counterexample?Report
Some people would consider it narrow-minded. Though they can’t do math, so they’re not really people.
(Anyone who cannot cope with mathematics is not fully human. At best he is a tolerable sub-human who has learned to wear shoes, bathe, and not make messes in the house.
— Robert A. Heinlien, The Notebooks of Lazarus Long)Report
Tolerable solely because they vastly outnumber those of us who are fully human.Report
@mike-schilling
It is quite a leap to go from highschool diplomas should be reserved for those who pass (among other requirements) the calculus requirement (and those who cannot are to get some lesser certificate) to people who cannot do calculus are subhuman. Not getting a highschool diploma does not make one subhuman. Now, there is an interesting question as to whether we achieve our public education goals better by raising standards in such a way, but if anything is wrong with it, it cannot be because it treats the non mathematically inclined as subhuman (because it in fact doesn’t do that)Report
You are making the common libertarian mistake of taking Heinlein seriously.Report
Maybe we could do something like “take these courses, get an Honors diploma… take these courses, get a Regents diploma… take these courses, get a General diploma”?
Hey, I know. Let’s pass a law saying “if you graduate, you graduate with an honors diploma”.
That way, everybody who graduates gets to say “I got honors!” instead of merely using the shorthand of “I graduated”.Report
Why does your article say: Same Sex Partners will need to go the extra step of having a lawyer / Notary Public draw up an afidavit, whilst hetersexual couples will not. That precludes that all same sex couples do not want a clergy issuing the marriage certificates / and/or officiating, and also precludes that all hetersexual couples do not want a common law marriage / certificate but would prefer a clergy issue marriage certificate / officiating, etc. There are plenty of ‘churches’ (anti gay people love to put quotes on things) that believe in marriage equality and allow gay marriage, and clergy who perform gay weddings. And believe me there are plenty of straights that don’t go to church, but rather a quickie ala Britney Spears ‘Sanctity of Marriage’ ceremony in Vegas instead.Report
Oh, a couple more (less substantive) things.
The first, I learned that we actually have a Bahaii church (or whatever they call them) in this county. I wouldn’t have guessed, given that we’re an exurban county with only 30k people in it or so. But GoogleAds was on it.
The second is that when Clancy came home from work last night, she asked how today went. I said “I spent way too much time learning about marriage.” She said that it might be more productive not to go about learning about marriage unilaterally.Report
By the way, I’m very glad to hear that Clancy is up and about.Report
Thanks, Mike. We’re happy about it, too. She may be off the cane without a month!Report
She said that it might be more productive not to go about learning about marriage unilaterally.
Wise woman you’ve married there, @will-truman
On another note of OK marriage, the thing that jumped out at me was the already-a-law requirement that, before you can get married, you must attend a marriage class, minimum length of four hours. I’ve heard of churches with such requirements before, but never states, and wonder if OK is unique here or this is common. (And OK has one of the highest divorce rates, fwiw.)Report
I don’t believe that counseling is required. I think if you undergo the counseling, they waive and reduce some of the fees.Report
When we got married three years ago in Oklahoma our officiant had us do an online training session that gave us a certificate to print out. We talked with him a bit but it did not take 4 hours. With Oklahoma being in the news so much lately a friend of mine created this https://www.teepublic.com/t-shirt/156021-zero-daysReport
@anne That shirt is awesome! Makes me think of those “Louisiana – Third world and proud of it!” bumper stickers.
So you actually had to do that training session? Or was it to allow you to waive fees or somesuch? What did it consist of? Stuff like “Don’t go to bed angry?”
I’m not a big fan of training session requirements, even non-intrusive ones. I don’t mind reasonable waiting periods. I am also mildly supportive of “covenant marriage” options, though I’ve read that they’re not demonstrably effective at influencing outcomes.Report
@will-truman “So you actually had to do that training session? Or was it to allow you to waive fees or some such? What did it consist of? Stuff like “Don’t go to bed angry?”
Basically don’t go to bed angry and the like and yes allowed us to waive a $50.00 fee when we filed the marriage licence. We used my mom’s minister (Unitarian) and he wasn’t strict. It was really just go through the motions to avoid the feeReport
Interesting, big Bahaii community in South Carolina. I may have read that before, but I forgot if I have.Report