No, Oklahoma Is Not Banning Atheist Marriage

There’s a lot of foofaraw going around the internet and Facebook these days reposting articles that claim the Oklahoma legislature is passing a bill that would ban atheists from getting married. See, for example, here, here and here. A slight variation on the theme is that the bill gives clergy sole power over marriage licenses, as claimed here.

All these articles have two features in common: 1) The writers are idiots; 2) none of them actually cite even one line from the bill. Don’t take my word for it, check their posts.

So what does the bill actually say? Here’s the actual text.. See, what none of these geniuses seem to understand is that you can actually look up the bill’s text, thanks to the same internet that allows them to write inane and misleading commentary.

Now to be slightly more fair than these writers deserve, a bit of the confusion stems from a previous version of the bill that deleted the authority of judges to perform ceremonies. That was a foolish bit that seems to have been a part of the author’s stated purpose of trying to protect state officials from having to participate in same-sex marriages. But as I’ll show you, judges are back in. It’s not sure just when that occurred, but some of the articles criticizing the bill are from January, which likely was before judges were put back in the bill, so I’ll give those folks a pass. Those writing more recently, though, are just passing on rumors without checking them.

Here’s what the bill really does: it ends the practice, in Oklahoma, of the state giving out marriage licenses, and changes that to the state just recording the existence of a marriage. So how does a marriage come into existence? In either of two ways, via a ceremony which then gets reported or via an affidavit of common law marriage.

Let’s look at the bill’s text, that any of the above lazy fool writers could have looked at but didn’t. First, the explanation of the bill’s purpose (redacted to focus on the relevant elements).

An Act relating to marriage licenses; …providing fee for recording marriage certificate or affidavit of common law marriage; deleting marriage license fee collection procedure;…deleting reference to marriage license;… allowing affidavit of common law marriage; providing for filing of affidavit with court clerk; … requiring execution of marriage certificate; … directing filing of certificate with court clerk; instructing court clerk to record certificate or affidavit;

Let’s break that down. The bill would add a fee for recording a marriage certificate or affidavit of common law marriage, because these are new things that don’t currently exist. It would delete the marriage license fee because the bill would get rid of the traditional marriage license. That is, instead of getting a license prior to getting married, if this bill passes, in Oklahoma you will just record a certificate of marriage or an affidavit of common law marriage after the fact. The following text from the bill makes even clearer that licenses would no longer be required.

No person herein authorized to perform or solemnize a
marriage ceremony shall do so unless the license issued therefor be first delivered into his or her possession nor unless he or she has good reason to believe the persons presenting themselves before him or her for marriage are the identical persons named in the license, and for whose marriage the same was issued, and that if there is no a legal objection or impediment to such marriage.

Note here that all the language referencing a license is stricken, and all that remains is language specifying that there is no other legal reason why the couple cannot be married.

More importantly, the bill would instruct the clerk to record the certificate or affidavit. There would be no discretion on the part of the clerk–if someone brings in the certificate or the affidavit, the clerk must record the marriage. That is, if this bill passes, if you say you are married in Oklahoma, they’ll record you as being married.

Let’s dig in a little deeper. The initial criticisms of the bill came from the section specifying who can solemnize a wedding and transmit a marriage certificate to a clerk. And apparently–extrapolating from what I’ve read–the original version of the bill struck out judges and included only religious officials. I get the impression this was just bad drafting on the part of the sponsor, who wanted to protect judges from having a duty to perform same-sex marriages, on the expectation of the Supreme Court striking down bans, including Oklahoma’s constitutional ban on SSM (the law’s author is, it appears, an opponent of SSM, yet as I’ll show the bill would allow for SSM, once Oklahoma’s constitutional ban is either struck down or repealed). But the language now explicitly allows judges again [note: stricken out words are proposed deletions of current statutory language, while underlines are proposed additions]:

Section 7. A. All Except as provided in subsection E of this section marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.

Now I don’t care for this emphasis on religious dignitaries being specially mentioned as authorized to solemnize marriages, but note two things, please. First, that language is not underlined, meaning it is now new–that’s extant language in the law. Second, note that judges and retired judges are explicitly mentioned. You don’t need a religious person to perform your ceremony; if you’re virulently atheist and you can find a judge who’s happy to cash your check, you, too, can get married in Oklahoma.

But, wait, there’s more. Despite that irritating emphasis on religious persons, anyone can become ordained, and thanks to the First Amendment, the state of Oklahoma doesn’t get to pick and choose which religions really count. See here, for example. And believe me, the theology of on-line ordination is quite simple–all you have to believe is that the ordaining organization will happily cash your check and send you a certificate in return.

But wait, what about that “Except as provided in subsection E” bit? That’s a bit that’s even more friendly to the unchurched.

E. Marriages 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. The affidavit of common law marriage shall be signed by both parties, notarized with official seal affixed and include:[Edit: appropriate identifying information, and] 4. That the parties are not disqualified from or incapable of entering into a common law marriage.

Don’t want a ceremony of any kind? Just hit the notary public then take your form to the clerk and the state will recognize your marriage. Or if you prefer a ceremony without even a pseudo-clergyman, have the ceremony, enjoy the reception, then hit the notary public, etc. This would be actually quite a simplification over the current status of common law marriage in Oklahoma.

And these common law marriages would be identical for all legal purposes to the ceremonially solemnized marriages.

B. Any entity requiring proof of identity or marital status shall accept a certified copy of the marriage certificate or affidavit of common law marriage that has been filed with the court clerk. Any reference in the Oklahoma Statutes requiring a marriage license as proof of identity or marital status shall be interpreted to include a marriage certificate or affidavit of common law marriage executed on or after November 1, 2015.

So there you have it. If anything, this bill would make it even easier for atheists to get married in Oklahoma simply by submitting a notarized affidavit, if they object to even having to nod toward religion to the extent of having an officiant from a totally make-believe church that doesn’t really ask its pseudo-ministers to believe in anything at all.

So, can we all just take a deep breath and quit panicking, please?

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About James Hanley

James Hanley is Associate Professor of Political Science at Adrian College and a Fellow of the Institute for Social Policy and Understanding. The views expressed here do not reflect the views of either organization.
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11 Responses to No, Oklahoma Is Not Banning Atheist Marriage

  1. madrocketscientist says:

    No James! We must be outraged at this attempt by Republicans to do what we couldn’t get done!

  2. trumwill says:

    MRS and I spent quite a bit of time on Friday trying to hash this out Over There. I want my day back!

    For most of the day, we were arguing with the belief that judges had still been eliminated, and even then I think the law was defensible.

    The amount of misinformation on this has been staggering. So many people seemed insistent on believing it because Oklahoma and because Christians.

    I’m not even in favor of the law, but I still spent most of my time defending it against the notion that it was going to bar non-Christians and non-Jews from getting married (and that Common Law marriages aren’t “second class” in the context of the law, and that calling them Common Law marriages was not intended to slight gays, and… jesucristo I want my Friday back.)

    I actually like the affidavit thing. I am not sure if we’d have gone that route (I would have, but Clancy was pretty lukewarm on it when I explained it to her), but that was a genuine improvement. Michael Cain actually argues that the verbiage of the Quaker provision is such that even an obvious non-religious organization, such as a University of Tulsa Linux Club, could theoretically give the right to marry.

    Everything else just seemed geared towards protecting the sensibilities of clerks, which I am pretty indifferent, too.

    I still like the Wyoming model, where just about anyone can get the right to marry. Or the French model, where religious marriage and civil marriage are treated independently.

  3. madrocketscientist says:

    I sometimes wonder how far behind schedule my current Tool is because people are being stupid on the internet.

  4. James Hanley says:

    I think Michael Caine might be right, but I think that’s an interpretation that would end up being determined in court, rather than being a necessary one, so I didn’t want to go there on this post.

    I actually like the general model here, that rather than get a permit from the state to get hitched, you just tell them you are and they make a note of it.

  5. James Hanley says:

    “Over There”

    The site that shall not be named? ;)

  6. Pingback: Getting The Government Out Of Marriage – Not Really | Hit Coffee

  7. What about the claim that submitting a marriage affidavit requires hiring a lawyer to draft it? Someone at Over There that the new law would require such an expense. If he’s right, then that is a substantial burden. If it’s just a form you can get online or at the clerk’s office, not so much.

  8. trumwill says:

    Gabriel, looking at the requirements, I could draft the document in ten minutes.

  9. James Hanley says:

    I think Will is right. Here’s the text of the bill in the affidavit paragraph.

    The affidavit of common law marriage shall be signed by both parties, notarized with official seal affixed and include:
    1. The place of residence of each party;
    2. The full legal name and age of each party as they appearupon or are calculable from a certified copy of the birth certificate, the current driver license or identification card, the current passport or visa, or any other certificate, license or document issued by or existing pursuant to the laws of any nation or of any state, or political subdivision thereof, accepted as proof of identity and age;
    3. The full name by which each party will be known after the common law marriage, which shall become the full legal name of the party upon the filing of the affidavit of common law marriage; and
    4. That the parties are not disqualified from or incapable of entering into a common law marriage.

  10. James Hanley says:

    I would add that if a lawyer was required, it’d be about ten minutes before about a thousand lawyers had standard forms made up in a computer ready to download and fill in, and about 5 seconds more before someone put one on-line for anyone to download. In fact I’d bet someone will put one on-line anyway, just because it will be so easy to make a standardized form that includes lines for all that info.

  11. trumwill says:

    The requirements are actually a bit more tedious for ministers.

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