What is Marital Status?

Marital Status is a concept created by American governments to separate their regulation of marriage as a civil institution from the historical religious justification for its regulation under English law. For hundreds of years, marriage in England was regulated under Ecclesiastical Law (church law) which is forbidden under our Federal Constitution. Religious history, traditions, and rules cannot serve as justification for any American law because the First Amendment forbids it. As more and more federal court opinions made this separation clear, states recognized the need to reframe the issue of marriage or give up its regulation.

Over time state laws regarding marriage and divorce began to be justified as a special civil status without being too clear about its divergence from the religious traditions most people presume to underpin it. State laws are purposefully vague about the justifications for its regulation because current understandings of our constitutionally protected freedoms would not permit the states to broadly regulate marriage the way they have traditionally done.

In its current state, marital status is a government defined status, that when granted, conveys significant legal benefits to the married couple. However, States are NOT permitted to regulate a constitutional right simply because they chose to bestow benefits on those who exercise the right the way the state favors.

People were getting married long before the American government or any other government ever existed. The right to marry is a natural right that predates government and which receives constitutional protection under the constitutional right to establish, maintain, and dissolve private associations. That right is protected by the First and Fourteenth Amendments under the penumbral right of associational privacy that is absolutely essential to maintaining free speech. One cannot speak freely where one is prohibited from associating with an audience and consequently, the audience’s right to receive speech is also protected under this penumbral privacy right of association.

In short, marital status is a government designation that determines whether or not two people may claim legal privileges granted as a benefit to married couples which cannot define nor limit an actual marriage that is protected by the constitution. Obergefell was argued in terms of the right of same sex couples to receive government recognition of their protected association and the legal benefits that come along with that recognition.

Obergefell did NOT define marriage, but held that states may not withhold marital status benefits from same sex couples. This is why it was argued under Fourteenth Amendment terms of regulating the status designation instead of under First Amendment terms of defining the marital association and its constitutional protections.

In the fight for parental rights protections we must push the courts to more precisely define the terms under which close family associations are protected by the constitution from government regulations starting with plainly recognizing the right to divorce.

It is essential that parents assert and demand protection for their right to divorce without being punished with loss of rights to their children. The parental right is also an associational right protected by the First Amendment and protected from state regulation through the Fourteenth Amendment.