License to Marry

Opponents of marriage equality argue that marriage is the foundation of our society and allowing same-sex couples to wed would cause that foundation to crumble. So when I went to apply for a marriage license, I wasn't sure what to expect. Certainly the state of the Vermont, one of the first states to provide legal recognition to same-sex unions, would want to test my ability to be a "building block of society" before issuing the license.

I had obtained licenses before, so I knew that they often involved multiple steps. Before I got my driver's license, I had to go through a driver's education course. The course involved a classroom component, simulations and actual driving experience. Even after I emerged from the course, I still had to go to the DMV and take a written test. Before I got my license to practice law, I attended three years of law school and took a two-day exam. I had to pass a character and fitness test that required me to fill out a form that asked me to record every place I had lived in the last decade and to swear that I was mentally fit. Then I had to raise my hand and take an oath that I would uphold the state and federal constitutions. Even when I applied for a dog license I had to bring additional paperwork.

Given my past licensing experience, I wasn't sure what to expect when we entered our town hall to ask for a marriage license. After wishing us congratulations, the town clerk produced a form for us to fill out that asked a series of questions -- our names, our birth dates, our addresses and our parents' names and their states of birth. There was also space for us to state how many marriages we had entered and when the last one had ended. And at the bottom of the page, we added our signatures to affirm that everything we had stated was accurate. I turned the page over expecting additional questions, but there were none. In fact, the only other question we were asked was whether we would be paying the $45 registration fee in cash or by check.

For all the grand statements about the importance of marriage to our society, the state does very little to regulate those who can enter heterosexual unions. It doesn't matter how long the couple has known each other, whether they intend to have children or whether there is a history of violence. To be sure, some states do have age requirements and some place restrictions on intra-familial unions -- like those between first cousins -- but other than that, there seems to be no real limits. A man and woman can marry and 55 hours later have the marriage annulled, a la Britney Spears and Jason Alexander. Heterosexual couples are allowed to marry and divorce multiple times without limitation. One of my favorite signs at a marriage equality rally read, "Elizabeth Taylor had 8 husbands, my brother wants just 1." Even Ted Bundy, a convicted serial killer, married a former co-worker, Carol Ann Boone, during the death penalty phase of his trial.

Florida, the state that allowed Bundy to marry and father a child before executing him, has one of the most restrictive same-sex marriage prohibition laws on the books. The Florida statute prohibits the recognition of any relationship between a same-sex couple and any claim or right that arises from that relationship. If Ted Bundy had killed my spouse, I would not have been able to bring a wrongful death suit against him in a Florida court. Even if I successfully sued him and won in a state that recognized my relationship, Florida would not have enforced the judgment against him. The hypocrisy is stunning.

In November, four states will vote on marriage equality and it is likely that the U.S. Supreme Court will decide whether the federal Defense of Marriage Act is unconstitutional. Opponents will try to articulate how allowing same-sex couples to marry will destroy the foundation of our society. But I don't see it. Apparently to be part of the foundation, you only need to know your name, your address, your birthday and where your parents were born. I think I'm ready.

Jackie Gardina is a Professor of Law at Vermont Law School.