Marriage Licensing - No Compelling State Interest

Here is a letter from my friend, Christopher, to his friend, Allen. Christopher forwarded this to me and I thought it to be appropriate for this blog.
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Hi Allen,

I checked with Dawn and she approved of giving her name. As I said I knew it would not be a problem.

I cut and pasted the information you requested from my current research on religion. Judge Adams' concurring opinion is very interesting. (See below)

By the way, on the issue of who can marry people in Nevada. This is an issue that has long been a concern of mine personally. I would NEVER get a license from the State to marry if I had to do it again. In fact I totally oppose all marriage licenses. I believe that marriage licenses are a violation of the separation between church and state. Churches cannot license the government so how can the government require a license for a religious minister to preform a religious ceremony? This is one of the main reasons why Patrick Henry became a revolutionary. Licensing ministers is antithetical to the American revolution. So why are ministers required to have licenses to marry people in Nevada? Why not license them to preach or baptize?

There are other less restrictive means available. I proved this when my son, Nicholas, was married in Colorado under the common law as Colorado recognizes common law marriages. We went to Colorado so he could get married there. We recorded the marriage at the County Recorder. They had to change their computer system to record it but they were happy to do so because of the Colorado Attorney General opinion on Common Law marriage.

http://www.ago.state.co.us/FAQ/CLM_FAQ.cfm.html

COMMON LAW MARRIAGE

A common law marriage in Colorado is valid for all purposes, the same as a ceremonial marriage. It can be terminated only by death or divorce. The common law elements of a valid marriage are that the couple (1) is free to contract a valid ceremonial marriage, i.e., they are not already married to someone else; (2) holds themselves out as husband and wife; (3) consents to the marriage; (4) cohabits; and (5) has the reputation in the community as being married. The single most important element under common law was the mutual consent of the couple presently to be husband and wife...

Nevada did not have marriage license requirements until the 1940s. Only in “Louisiana" was a marriage license possibly necessary in 1856 AD. Before that no State had marriage license requirements. Therefore the government of Nevada does not have a compelling government interest in marriage licenses or who preforms marriage ceremonies.

There is a great explanation of marriage in John Bouvier 1856 AD law dictionary:

MARRIAGE. A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1; Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract, Able to contract, and have actually contracted. ...

Common law marriages are still recognized in many states. If a common law marriage service is preformed (it is not required) it can be performed by anyone. I performed my son's marriage ceremony with no license. We held the ceremony in Nevada at Sunset Park to celebrate the Common law marriage in Colorado. Therefore Nevada has to recognize a Colorado marriage without a license. So once again Nevada has no compelling government interest.

I believe that the marriage license requirements are nothing more than the unconstitutional establishment of a civic religion. And the Supreme Court was quite clear that such a civic religion is unconstitutional:

"The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted." Lee v. Weisman 505 U.S. 577, 590, 1992

“[T]he State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’ Zorach v. Clauson, supra, 343 U.S., at 314, 72 S.Ct., at 684, 96 L.Ed. 954.” School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, U.S.Md. 1963.

Marriage was a religious ceremony until licenses became required as a part of the New American Civic Religion.

This whole marriage license requirement is a scam. Government should keep its nose out of my religion and marriage is a part of my religion. Marriage licenses were founded on racism anyway as only mixed race couples in most states were required to get marriage licenses. The entire marriage license requirement is offensive to me.

Asking for a marriage license is like asking to be enslaved. Nevada is required by the irrevocable ordinance #2:

That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.

To the best of my knowledge and research this requirement upon the Sate has never been enforced or litigated. How is requiring a person to get a license to marry someone a: "perfect toleration of his religious sentiment"?

I consider this irrevocable ordinance to be the Nevada Religious Freedom Restoration Act for Nevada as it increases the religious protections. This religious protection territorial ordinance is still "in force" as per Article 17, Sec. 2 of the Nevada Constitution:

Sec: 2. Territorial laws to remain in force. All laws of the Territory of Nevada in force at the time of the admission of this State, not repugnant to this Constitution, shall remain in force until they expire by their own limitations or be altered or repealed by the Legislature.

The Irrevocable Ordinance has never been altered or repealed by the Legislature.

And of course a State has the right to adopt this right that is: "more expansive than those conferred by the Federal Constitution.”

“The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551 - which held that the First Amendment does not . . . limit a State's authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution.”
PRUNEYARD SHOPPING CENTER v. ROBINS, 447 U.S. 74 (1980)

Therefore there must be accommodation for anyone that does not have a religious preference to marry a person if any religious minister can do it. Even if a religious person does not want a licensed minister to perform the marriage then he should be able to do so himself. We started our own non-licensed religious organization to protect ourselves from such unconstitutional restrictions upon our free exercise. http://www.sovereignfellowship.com/ In other words this issue is VERY important to me. http://www.sovereignfellowship.com/tos/21.27/
And to others like Pastor Matt Trewhella: http://www.sovereignfellowship.com/tos/21.28/

I hope you win.

If you want any more help on this issue I would be happy to help. I have studied these religious issues for over a decade now and have written extensively on the subject of religious liberty.


In Malnak v. Yogi 592 F.2d 197, 212 (C.A.N.J., 1979) Circuit Judge, Adams wrote a thought provoking concurring opinion concerning what is and what is not religion when considering the establishment clause in which he stated:

"A more difficult question would be presented by government propagation of doctrinaire Marxism, either in the schools or elsewhere. Under certain circumstances Marxism might be classifiable as a religion and an establishment thereof could result."

See also:

91 Harv. L. Rev. 1056

Harvard Law Review
March, 1978
1056 TOWARD A CONSTITUTIONAL DEFINITION OF RELIGION
Copyright (c) 1978 by the Harvard Law Review Association


Even political and social beliefs may be religious. Tillich suggests: “If a national group makes the life and growth of the nation its ultimate concern … [e]verything is centered in the only god, the nation ….” [FN91] This point has been variously made about “civil religion in America,” [FN92] Communism, [FN93] Marxism, [FN94] Nazism, Italian Fascism, and Japanese militarism. [FN95]

[FN91]. P. TILLICH, supra note 66, at 44.

[FN92]. Bellah, Civil Religion in America, 96 DAEDALUS 1, 1-9 (1967). See also Cousins, La Politique Comme Religion aux Etats-Unis, in RELIGION ET POLITIQUE: ACTES DE COLLOQUE ORGANISÉ PAR LE CENTRE INTERNATIONAL D'ETUDES HUMANISTES ET PAR L'INSTITUT D'ETUDES PHILOSOPHIQUES DE ROME, JANVIER 3-7, 1978 (forthcoming, 1978).

[FN93]. J. BENNETT, CHRISTIANITY AND COMMUNISM 87-88 (1970). See also J. MURRY, THE NECESSITY OF COMMUNISM (1932) (arguing that Communism is the world's one living religion).

[FN94]. See L. DEWART, THE FUTURE OF BELIEF 56-58 (1966).

[FN95]. See E. SHILLITO, NATIONALISM: MAN'S OTHER RELIGION (1933).


Have a wonderful day Allen,

Christopher Hansen