OK’s Anti-Gay Marriage Bill Would Change Weddings But not Marriage—Not Even Gay Ones

In an effort to promote freedom of religion, Republican State Rep. Todd Russ introduced House Bill 1125 in the Oklahoma House of Representatives which would amend certain of the state’s marriage laws. Specifically, HB 1125, passed by the Oklahoma House on March 10th, eliminates all statutory references to state-issued marriage licenses.

Russ’s apparent goal for the bill is to preemptively protect court clerks who feel their personal religious beliefs would be violated by fulfilling the duties of their job and issuing marriage licenses to same-sex couples. In 2014 a federal judge ruled Oklahoma’s ban on same-sex marriages unconstitutional.

As was not lost on those who offered up initial responses in the press and on blogs, there is something interesting—and, for many, disturbing—about this effort to eliminate the marriage license in Oklahoma. Along with Russ himself, however, many of these responses are confused, due to a lack of understanding of the nature and purpose of a marriage license.

According to his official press release about the passage of HB 1125, Russ believes that eliminating state-issued marriage licenses will “get government out of marriage and resolve the same-sex marriage controversy.” Would ceasing to issue marriage licenses really “take the state out of the process and leave marriage in the hands of the clergy” as Russ hopes and many opponents fear? Not really.

The bill would still require that those to be married must be 18 or older—unless a minor (16-17) has parental consent (or that of a legal guardian)—a marriage cannot be incestuous, and Oklahoma will not recognize polygamous and other currently unsanctioned unions. But this also means that, even if marriage licenses cease to be issued, Oklahoma would not cede much, if any, new authority to religious communities and their leaders, in spite of what some headlines would have us believe. Indeed, in terms of whom religious leaders are permitted by the state to marry, nothing, it appears, would substantively change under HB 1125.

Nor would it change the already existing, and problematically worded, kinds of religious groups that can currently offer such religious unions. Those permitted to perform a religious marriage service in Oklahoma are to have “been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi…”

Apparently Christians and Jews and Baha’i (thanks to a clarifying note later in the law) are the kinds of religious people who can ceremoniously marry in religious settings in Oklahoma. Think about that for a second: the State of Oklahoma sets certain basic terms that determine which marriages religions are permitted to have and promote. This is an example of what Winnifred Sullivan has famously termed the impossibility of religious freedom.

Thus, in order to free court clerks from having to endorse same-sex marriage by issuing state marriage licenses, Russ wants the clerks only to record marriages entered into through either religious services or a legal affidavit validating the existence of a common law marriage—already an option in Oklahoma—for everyone else.

In this act of recognition, these clerks incorporate the married—even those marriages between same-sex couples—into the state’s marriage complex, including all the rights and responsibilities of a legal marriage. Changing the clerk’s role from actively licensing something they disapprove of to one of passively acknowledging that what they despise occurred, while still making sure that the marriage in question is recognized by the state, changes little.

Moreover, as all the litigation around the Affordable Care Act’s contraception mandate has so powerfully illustrated, people will find ways, if they want to, to understand their religious rights as being trammeled upon no matter what procedural tweaks and accommodations are granted to them by the government. Russ’s court clerks who do not like same-sex marriages will likely still feel oppressed under the terms of HB 1125.

All of this is not to say that this bill, if signed into law, would make no difference. Indeed, I suspect it would strengthen the legal position of common law marriage in Oklahoma. Americans United for Separation of Church and State views the status of common law marriage in Oklahoma as “shaky at best,” a position that reflects a possible ambiguity around the validity of common law marriages after the passage of a law in 1998 (one way to tell this legal story can be found here).

But at least some legal firms operating in Oklahoma (such as this one and this one) consider common law marriage’s status as more secure, pointing toward the failure of a 2005 bill that would have definitively ended common law marriage in Oklahoma and noting that it has been upheld by state courts at least as recently as 2001. Having to submit an affidavit establishing people’s common law marriage would, most likely, only strengthen the legal position of these unions since it would create a clear and stable record of their existence in the eyes of the courts. Plus, if tens of thousands of marriages are designated as common law it would be hard for Oklahoma to spontaneously negate them en masse.

But the probable strengthening of common law’s legal standing is not, in my view, among the more interesting implications of HB 1125. The idea of asking everyone who does not want a religious wedding performed by a religious leader to marry under common law seems to strike a nerve with opponents, many of whom are worried about the status of marriages by atheists.

One friend, for example, expressed the concern that, if passed, HB 1125 would create a dual-track system analogous to that of civil unions and marriages. In other words, she feared that atheists would be stuck with a second rate, if not outright fake, common law marriage while real marriage was reserved for the religious people of the land.

But that analogy is faulty since, legally, both the certificates and affidavits submitted to the court clerks would establish the same marriage for all in the eyes of the state. Hence there would be no separate but (not so) equal sets of marital rights and responsibilities, or even nomenclature divvied up between common law and religious unions. Instead, there would only be a difference in whose weddings (not marriages per se) were acknowledged by the state as having occurred and to matter.

The problem with common law marriage in Oklahoma is not whether or not everyone will get their legal contract, but whether or not their ritual will be blessed by the state. In order to certify that a religious wedding has occurred (and thus that a couple is really married) a religious leader must fill out the required paperwork. Under common law marriage, however, a public ceremony is legally irrelevant. The state does not care if you have a wedding or not. Rather, the state acts as if the couple had not had one.

With regard to common law marriages, Oklahoma courts worry about such things as whether the couple has undertaken a mutual agreement to enter into an exclusive marital relationship (assuming the legal rights and obligations of marriage), have consummated their union, and cohabitate as spouses. HB 1125 reinforces the court’s presumption that no wedding takes place for common law marriages: “[m]arriages 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.”

In a sense, these common law marriages are positively medieval! To simplify greatly, a valid marriage in Catholic Europe, from around the twelfth through the sixteenth century, was a sacrament entered into by the couple alone. There may well have been a wedding ceremony, and this was strongly encouraged to say the least. But people who met the basic qualifications (e.g. not already married, of age, etc.) married themselves using vows expressed in the present tense (e.g. I take you to be my wife, etc.) and then proceeded to live as husband and wife. More importantly for our current purposes, their marriages did not require a wedding ceremony to be valid and binding.

But Americans do not seem to want medieval marriages. They want marriages with licenses, a form of marriage that emerged in the Protestant Reformation. So what do state-issued marriage licenses have to do with weddings? As legal scholar Mary Anne Case points out in her chapter on marriage in After Secular Law (2011), marriage licenses do not marry people but rather authorize the wedding ceremony to occur—and Americans love their weddings, as Chrys Ingraham so powerfully shows in White Weddings (2008).

Common law marriages do not feel or seem like marriage to many Americans because they lack the ritual entry point of marriage and change the scope of recognition granted by the state around marriage ceremonies. Lamenting the possible loss of marriage licenses is a way to register people’s fear of losing their (state-sanctioned) weddings and the marital certainty that come with such rituals.

21 Comments

  • GregAbdul@comcast.net' GregAbdul says:

    Thanks for the article. People may think I am crazy, but I am going to keep saying it. What happened with the SAE fraternity did not happen in a vacuum. Those kids who did the song are just as much victims as anyone. The University of Oklahoma is a racist university. The state of Oklahoma is a racist state and the GOP is the white racist party.

  • jcswindle@gmail.com' John Swindle says:

    The proposal maintains a distinction between religions that have clergy and a specific list of religions (Quaker, Baha’i, and Mormon) that do not. It adds a distinction between persons who are religious and those who are not. None of this is necessary. Let the religions have their ceremonies, and let the state register marriages without reference to religious ceremony or lack thereof.

  • I dont want to be crass…oh wait, yes I do….this bill shows how stupid many in Oklahoma are

  • great idea, but religious folks will want special rights not given to just man’s laws. meaning, there would be even more of a problem. I say, give the power to the state, not the church…isnt that what a non-theocratic culture is supposed to be like? let those religious folks first have to get married by the state before anything legal is recognized, this would alsio give them that year or two they seem to need to plan all the wedding celebrations, including the church ceremony.

  • robert.m.jeffers@lonestar.edu' Rmj says:

    The interesting point of common law marriage is not mentioned here, and I don’t know the property laws of Oklahoma, but marriage is largely a contractual state used to establish property rights, ownership, and responsibility for offspring.

    Which is all the state really cares about.

    So, in Texas (where I am more familiar with the law), marriage creates a “community estate,” where each spouse owns an undivided one-half interest in all property acquired during the marriage, and the children are the presumed offspring of the father (assuming heterosexual marriage, which is all that’s legal in Texas right now) and so the responsibility of the father (child support in case of divorce, or simply duty to care) as well as the mother.

    Common law marriage in Texas just allows the creation of that community estate. It’s a legal protection, in other words, for couples who live together but never formalize the union with a marriage ceremony (secular or religious). And this is where it gets really interesting:

    I was married in a church service in Texas over 37 years ago. Since then I’ve never had to show my marriage license once to anyone, to “prove” I was married. I introduced my wife, she introduced her husband, and everyone took us at our word. Which is, under Texas law anyway, all it takes to establish a common law marriage. In other words, in the eyes of the state, we’d be just as married if we had the license (which we have somewhere; I think) or if we’d just moved in together 37 years ago.

    Because all the state cares about is the property and the children. Marriage in Europe, by the way, was largely a matter of trading deeds (in “medieval” times, anyway), and that was a great concern for land owners back when there was no public record of deeds and conveyances. This ceremony was public, the religious one was private, and meant largely to bless the union so it would be fruitful and multiply.

    Yes, the license might be important if we were to divorce, but i never had to produce one on behalf of a client when I was doing divorce work. Not in Texas, anyway. But common-law marriage isn’t necessary “medieval.” In the right legal context, it can be positively progressive, as it protects each person in the marriage and their property interests. And since the state abhors a vacuum in property interest, it makes things easier for the state, too.

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    Have you ever even been to Oklahoma or the OU campus? I’m betting not. I live less than a mile from that campus. If OU was as racist as you claim, the student body would be a lot more homogenous than it is. In fact, Norman, OK is to Oklahoma what Austin is to Texas, in terms of culture, community, and more liberal-leaning attitudes, but you would know anything about that because clearly you’ve never been here. Hey here’s an idea, how about you don’t talk smack about things you know nothing about? Can we try that for a while? It might help you come across as less of a douchebag when you make comments.

  • GregAbdul@comcast.net' GregAbdul says:

    you are trying to say Norman is not like the rest of Oklahoma…racist. Now the thing is, the black student body is 5% at your “cosmopolitan” Norman, the place where the frat boys were busted singing N*gger songs. I think the national African American population of the US is 13%….we call that underrepresentation….I guess it must be because of the poor quality of black people in Oklahoma and not because of the racism that permeates the entire state?

  • joen@mindspring.com' Cat lady says:

    Ah yes, OU may not be racist. At least I don’t know. However, I strongly suspect anyone who uses “douchebag” as a putdown is a tad prejudiced against women, similar to all the other terms related to female sexual organs that communicate derogatory feelings. Or is there a use of said container for men that I don’t know about?

  • rtoltschin@gmail.com' RexTIII says:

    Lawmakers in Oklahoma keeping Governor Fallin happy!

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    I AM a woman, so I’ll use the term any damn way a please, thank you very much.

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    Once again, someone who clearly has never even been here spouting off about stuff they know nothing about. Look chief, if you really want to play the statistics game, we can do that. Tell me where you live and I absolutely guarantee you that I can dig up some mean population numbers that imply your state is racist too. Go on, try me.

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    Oh and by the way, just incase you weren’t aware, “black” and “white” are not the only races out there. Did you bother to check on the mean percentages of other races attending the University of Oklahoma in the last ten years? I’m betting that you didn’t. If you had, you would have seen that there is a sizeable population of Hispanics, Asians, Persians, Arabs, etc. Hell, at the University of Central Oklahoma where I did my Master’s studies at least half of the student population was non-white. Yes, there are racists in Oklahoma, but you seem to be trying to make it out to be KKK Central, which is absolutely absurd and indicative of an attitude of arrogance that is, quite frankly, mind boggling. Seriously dude, just shut up. All you’re doing is proving that you have no idea what you’re talking about.

  • GregAbdul@comcast.net' GregAbdul says:

    let me guess…you must be like that uncle tom lawyer lady who said she never experienced racism while attending OU. Oklahoma is a racist place, run by racist GOP types. I am in the South. It’s racist central. Denying it only makes you a part of it.

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    Then why the fuck are you still living in the South? Oh, and by the way, Oklahoma IS NOT “The South.” You’re thinking of Georgia and Alabama and Louisiana & such. Don’t you fucking DARE lump Oklahoma in with those backwards-ass states, as you’ve clearly never even been here and know nothing about us.

    Once again I say that you clearly know absolutely nothing about Norman, OK or the OU campus, or the people who live here. Seriously dude, making statements like you have been is akin to saying “all Muslim people are ISIS supporters.” Do you really want to be associated with sentiments like that? Grow the fuck up and learn to see the world as it really is, which it far more complex than the ignorantly binary view that you seem to have. I truly feel sorry for you if that is really the way you view the world. I have hope though, because you are obviously young, and have not experienced enough to genuinely understand the reality of things.

  • GregAbdul@comcast.net' GregAbdul says:

    LOL…I should not laugh. Sorry Oklahoma is in the Southwest…just like Texas is and just like Texas, run by racist GOP whites. It’s not a secret. Why does someone telling simple truth offend you so that you are raging and cursing? Texas and Oklahoma are no better than Mississippi and Alabama. That bus with the whites chanting N*gger can hang from a tree was not in Alabama, so no way you can claim you are better than the deep racist south…more like just another part of it. We need to fix it. Your denials are racist maintenance. You like maintaining the racist state that is Oklahoma?

  • fiona64@livejournal.com' fiona64 says:

    Don’t you fucking DARE lump Oklahoma in with those backwards-ass states

    The most racist place I’ve ever lived was Indiana, so I wouldn’t get too high-horsey about the geographical location as a way to deflect that Greg is right …

  • lisarenee3505@yahoo.com' XxLR_JORDANxX says:

    Uhh, dude, “gay” actually is not a race.

  • GregAbdul@comcast.net' GregAbdul says:

    are you one of “them” black women? you know….do anything for your boss, including shut down your brain?

  • vezinaca@msu.edu' StrangeFly says:

    I’m going to admit here that I’m confused by this too. How would this law affect non-religious couples? Would two atheists (as I and my boyfriend are) only qualify for a common law marriage and what exactly is a common law marriage in Oklahoma? Would we need to find a clergy member willing to overlook our atheism in order to not be considered a common law marriage?

  • vezinaca@msu.edu' StrangeFly says:

    Sorry, as I re-read I realize I inadvertently skipped a section. Does this law mean that we as atheists would have our marriage recognized, but not our wedding because the wedding would lack a religious component? That seems rather dubious!

  • suekane@umich.edu' SDK says:

    This seems like both a creative and a progressive response to a contentious issue in a highly conservative state. What is it about the proposed idea that people find regressive? Many people in the state don’t want to enable gay marriages, but instead of continuing to fight them, they redefine the secular marriage process for everyone. If the law is fair and evenly applied to all and it equally protects the rights of all, what’s wrong with it? This is far better than having one type of legally recognized marriage for straight people and an inferior, only somehwat recognized marriage for gay people.

    We commend public officials who refused to implement a racist law but we decry public officials who refuse to implement a progressive law. In both cases, the public officials are refusing to their jobs because they believe in a moral value that is above secular law. In both cases, they are both right and wrong. Wrong, because as a society we depend on people following laws and we depend particularly on public officials following them. Right, because civil disobedience is one way that change happens and our society does value individual acts of conscience.

    We have two opposing principles here — religious liberty and individual conscience vs. equality under the law. The state representative is proposing a creative solution that leaves both intact. How is that bad?

    As a gay person, what I want from my fellow citizens is equality under the law. If they also like me as a person, that’s wonderful. If they also re-evaluate their religious or moral objections to homosexuality, I honestly believe they would be happier and religion would be kinder, gentler and more useful force in society. But you cannot demand or control the individual conscience and I would not want the state to do so on my behalf.

    In an open and democratic society, racism, fundamentalism and intolerance must remain protected individual choices. Our job is to tame those forces so that they do not come to damage the rights of others in that same society. It’s often hard to know what actions will tip the balance too far one way or the other. But we have a much better history of successfully finding the right balance for our society on religious issues, as opposed to racial or economic issues.

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