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Marriage and the Modern General Assembly

An edited version of this article ran in The Greenville Journal.

Having survived a semiotic debate about the Confederate flag worthy of the ancient Greeks, I finally read through the Obergefell vs. Hodges Supreme Court decision recognizing same-sex marriage. Justice Kennedy, writing for the majority, explained how the 14th Amendment of the United States Constitution establishes the right of an individual to marry another person of the same sex.

He reasons that the Court has long held that the Constitution protects an individual’s freedom to marry. Since the 14th Amendment establishes that no State shall “deprive any person of life, liberty, or property, without due process of law,” then no State can deny an individual the liberty to marry another person of the same sex.

The majority based their ruling on the transitory nature of what an evolving society understands to be a “right.” They argued that the courts are responsible to reflect such evolutions in their rulings. As an elected lawmaker, I take exception to this practice of judicial activism. Such societal changes should be reflected in the legislative process as our state and federal constitutions intended, not through court rulings.

The simplicity of the ruling left several important questions unanswered. Should same-sex couples that live together now be considered legally married under our state’s common law marriage statute? Does the ruling create a constitutional requirement that South Carolina must issue marriage licenses? Will ministers be required to officiate at marriage ceremonies that violate their religious beliefs?

Government involvement in marriage has a surprising history in South Carolina. Before the 20th century, our state government had no authority to establish a marriage by granting a license or end a marriage by granting a divorce. South Carolina couples were married after having a church ceremony or by meeting certain circumstances that evolved in common law – circumstances such as the intent, declaration and actual practice of living as husband and wife. Once married, the contract was for life.

For a brief time during Reconstruction, we were forced to issue marriage licenses and grant divorces when the carpetbagger-controlled General Assembly adopted a state constitution modeled on Ohio’s. As Democrats regained control, these Northern marriage policies were reversed. After that, divorces were not granted in South Carolina until the law was changed in 1950.

Divorce was the center of debate when the General Assembly took up the marriage license act in 1911. Conservatives had not forgotten what happened during Reconstruction. They knew that allowing government to license marriage would eventually lead to the legalization of divorce. They argued that divorce would destabilize marriage and destroy the family. Their position may seem quaint now but we should consider our current divorce rates, the number of children living in poverty and the increase in unwed mothers to judge if their concerns were warranted.

The Supreme Court decision was about more than just giving same-sex couples equal access to a $35 marriage license down at County Square. The ruling added a powerful precedent that judicial perceptions of our society’s evolving rights – rights created and then ruled on by the same judges — have greater authority than traditional understandings of long-established rights or even of the Constitution itself.

In other words, the Court perceived that same-sex couples were now more acceptable to our society at large. The Court felt that they should not be banned from marriage. The Court ruled that same-sex marriage is now legal. By doing so, they knowingly usurped the rights of the individual States as defined by the Constitution and have threatened the free exercise of religion protected by the First Amendment.

The threat to religious practice exists contrary to the assurances issued from same-sex marriage supporters. Government initiated religious intolerance has already occurred in Houston where the mayor used the city attorney to subpoena the sermons of five Houston ministers who spoke out against same-sex marriage. The mayor wanted to determine if the sermons violated Houston’s Equal Rights ordinance. The subpoenas were withdrawn after a nationwide protest. Still, she showed no reluctance to use the public resources of Houston to harass ministers.

Her actions are only the beginning. The Supreme Court has set us on a course where the refusal of a minister to officiate at a same-sex marriage ceremony will deny him the free exercise of his religious beliefs. The restriction will not be a direct gag order issued by a federal court. That would be a First Amendment violation. The restriction will be a denial of tax-exempt status for their religious organization, the threat of concurrent investigations by other “concerned” government agencies, the bankruptcy that will come from the legal cost of defending themselves and the destruction of their reputation by a news media callously unconcerned about the First Amendment rights of whom they deem unworthy.

Though capitulation may seem the response du jour among our state Republican leadership on most issues these days, they have a responsibility to take proactive measures against any threat to our religious liberties. They could start with repealing the 1911 marriage license law that allowed the state to expropriate marriage from its religious foundation.

Under South Carolina’s current marriage license law, ministers are one of the few authorities who can validate a marriage license. They do so, not in a religious capacity, but as a government official. Their state-granted authority places ministers who refuse to perform a same-sex marriage because of religious belief into direct conflict with the Supreme Court ruling. Ministers cannot be given the authority to sign a marriage license then refuse to do so.

Repealing the law would remove our state government from the marriage creation process and eliminate the possibility of religious persecution against ministers who refuse to sign a marriage license for a same-sex couple. Marriages would still be recognized, as we would retain our old common law marriage statute where couples would become the sole authority to define their relationship as a marriage, not the state.

Some may consider repeal a radical strategy but it is logical. The Supreme Court just affirmed that the freedom to marry is a Constitutional right, so no license should be needed.