With same-sex marriage so much in the news, I thought it would be good to take a look at the deeper ethical issue that is too often overlooked. Sometimes a concept like licensing can be made clearer by looking at its opposite side and this may be a useful way to begin this commentary on marriage licenses. To have the power to grant a license for something is to also have the power to prohibit it. Consider the fact that your own marriage could be prohibited by law. I suspect that most of us would agree that for the government to assume such sweeping power over people's private lives and choices they ought to have some very convincing reasons.

Not long ago, here in Massachusetts, a blood test for syphilis was required to get a marriage license. The stated reason was to screen for sexually transmitted diseases during a time when syphilis was believed to be a threat to the community. Its avowed intention was to protect people from the spread of a dangerous contagion where the group had a basis to claim interest and an ethical right to interfere with individual freedom. It's not a very compelling reason, nor is it the real reason we have marriage licenses, but at least it's something. Even in those places where it was used only to identify and inform the infected person that he or she needed treatment and not as a disqualifier for marriage, it was nevertheless objectionable.

But the times have changed, as we all know. Marriage is now a very low predictor of sexual activity and no one is suggesting that this kind of blood test would be an effective way to combat STDs.

Today a marriage license blood test is only still required in a few states and sometimes used as a convenient screening for a wider variety of afflictions such as HIV and even sickle cell anemia. These tests are obviously no longer even remotely valid as a reason to license marriage.

Where else can we look for ethical justification? The society certainly has a limited right to mandate behavior to ensure the protection of children. Mandatory school attendance is not generally very controversial because it is recognized as legitimate and reasonable. Home schooling options lessen the limitations of freedom and people by and large agree that the general welfare demands that everyone be educated. There is perhaps a flicker of justification for marriage licensing as a way to protect children by encouraging a stable traditional family life for their upbringing. There is certainly a body of evidence to show that this would lead to better outcomes overall than would other settings and we often hear this as a reason to license marriage. But, if it were a compelling group interest to carefully and intimately control the birth and upbringing of children then a license to become pregnant along with certain means testing and parental training courses would at least address the issue. Of course this level of assault on individual freedom would be so repugnant to the innate human ethical sense that very few people would even dare suggest it.

Then we see this line of reasoning as the "fool's game" it really is when we ask why, if marriage were so important to the raising of children, the state would routinely grant divorces. Add to this the fact that according to the most recent census less than one-quarter of American households consisted of married couples with children and we realize that parenting is no longer the predominate reason for marriage. And further, with over one-third of children being raised outside this traditional mom and pop setting anyway, it's clear that licensing marriage is not a very good way to protect children overall and that these claims are just a pretense.

Well, you may then ask, a pretense for what? If licensing marriage is unnecessary and unjustifiable, why we are we doing it?

Marriage licensing in this country hasn't been around that long. Cohabitation or "common law" marriages were recognized everywhere until not much more than a century ago. Historically, marriage licenses have been primarily used to restrict freedom in areas that were deemed not socially acceptable, to prevent interracial marriage, for example, or the marriage of intellectually challenged people. Some people have an insatiable appetite for telling other people how to live. It's an ethical weakness that needs attention.

The desire to control who gets married, and in the mind-set of that past time when it all started, who has children, was boosted by the so-called "eugenics" movement of the early 20th century. Genetics was the darling science of the age and its misuse is very much at the root of the marriage licensing mess we have today.

The call to stop the spread of genetically transmitted conditions lurking in the DNA of "defective" people that many believed would ultimately overwhelm society with diseases and costly social problems spread rapidly across the western world. The control of marriages was seen as one way to reduce this threat and protect the health of the society.

The pursuit of this so-called "social hygiene" in no small measure contributed to the rise of fascism and fueled its attempts in Germany to eradicate every conceivable kind of perceived threat to the societal gene pool. The Nazis excelled at this kind of intrusive and unethical attack on individual freedom.

Marriage licensing is a wrongheaded practice of the past with very questionable ethical credentials. We're still living today with the residue of this mistake and it's time to correct it.

Marriage is a private and personal matter; the state has no legitimate right to require any kind licensing for it.

ANTHONY TIATORIO recently retired after 33 years as a teacher and social studies department head in Mansfield. His expertise is in ethics education and in integrating ethics themes directly into established secondary school curricula, many examples of which are on his website: www.ethicsineducation.com