It wasn’t too long ago, just over 50 years, when the case of Loving v Virginia was heard by the supreme court in 1967. This is a case where a black woman married a white man in a state where it was legal, but the state of Virginia wanted to charge them with felonies.
The statute read:
Punishment for marriage. — If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
In the oral arguments, you can hear the attorney for the state of Virginia state that without a marriage, they would have been charged with “felony fornication”.
Today, the thought that this could have ever happened in America is shocking. Since this case we have grown accustomed to interracial marriage and most of us never even questioned it. Even more recently, gay marriage has been ruled on, in a similar way, to allow same sex couples to do the same. And a century from now, people will wonder how anyone could have ever viewed it as a crime.
It was ultimately decided in Loving v Virginia, that the 14th amendment’s equal protection is what would defend their right to be married. Effectively this said that if the government was going to recognize and “protect” a marriage of two people, it would have to protect it for ANY two people, because they had equal rights.
But what about their pursuit of happiness? After all, don’t people usually get married to pursue a happy life? While it wasn’t the headline of this case, it was an integral part of it. The court’s opinion read:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.
The court recognized that marriage was a right essential to the pursuit of happiness.
Whether or not it’s truly essential is subjective. There are many people who choose to be single for their entire lives and that is what makes them happy. But that the court recognized it as a thing that contributes to one’s happiness is important. Shouldn’t that mean that anything which could contribute to one’s happiness be equally protected as a right? Of course, so long as that right does not infringe on the rights of another?
And let’s take this a step further. In Murdock v Pennsylvania in 1943, the court ruled that rights can not be converted into privileges, nor charged a tax or license to exercise them. If marriage is recognized as a right, why are they charging a fee and why is a license required?
A little known fact is that they are not required. Marriage can be achieved by a simple contract without any fees or licenses. The only difference may be how the government recognizes the marriage when it comes to common property, parental rights, etc. Some states will recognize it as a common law marriage which is recognized the same as any other licensed marriage, but without the government’s stamp of approval.
With a licensed marriage, those things are already prescribed by law. If you don’t like any of those laws you can change them with a prenup. If you don’t want anything to do with those laws you can start from scratch with a simple contract.
But most importantly is that marriage is recognized as human right and there is no requirement to pay the government or request a license or permission to be granted to exercise that right. Shouldn’t this apply to every other human right? What about the consumption of cannabis that helps millions of people reach a state of happiness? If this is a right, how could the government limit the growth, distribution and consumption? How could they charge a tax to purchase it? This seems antithetical to a free society. We should demand the government get out of the way of our happiness.