Love in the Time of Homophobia: Considering the Use of Confidential Marriage Licenses

When I began Los Angeles County’s online marriage license application a few nights ago, I was asked to choose between either a public or confidential marriage license. I confess that it was the nominally lower price tag of the confidential option that led me to do a quick Google search. There were a few differences between the two, the biggest one being that the public license is kept as part of the public record, meaning it’s accessible to whomever is interesting in looking at it (for a fee), whereas the confidential license is accessible only by court order. Michigan has a similar law, but there the marriage certificate is administered in a closed court by a judge, and the file is sealed. The court clerk has no record of the marriage.

The confidential license is unique to those two states. First introduced in the 19th century, it was used by unmarried couples who were cohabiting to allow them to get married without having to face public disapproval for not having been married prior to shacking up. This arrangement worked out for the church because couples could quietly stop “living in sin.” It was good for the government too, since the confidential marriage license made it easier to determine inheritance rights for children.

The California law permitting confidential marriage licenses was enacted in 1878. Most couples in Calfornia didn’t regard confidential marriage as a serious option until the 1970s, though, when legislators allowed people outside of the clergy to perform confidential marriages. In the ’70s, public marriage required blood and rubella tests, making confidential marriage an easier and quicker option as those tests weren’t required. Confidential marriages grew increasingly popular until the ’80s, when, after the narrow defeat of a legislative proposal to get rid of confidential marriages, California eliminated the requirement for blood and rubella tests in obtaining a public marriage license.

The confidential marriage option went largely undiscussed after that until June 2013, when the legality of Proposition 8, which took away marriage rights from California’s same-sex couples, was being debated in courts.

In mid-June, Zócalo Public Square editor Joe Matthews published an article suggesting that if the Supreme Court upheld Prop 8—meaning same-sex couples would continue to be denied the right to marry in California—a compromise could be reached between those supporting and opposing marriage equality: Allow LGBTQ couples to marry confidentially. Matthews reasoned that this solution could be explained to conservatives as an “untraditional” marriage while still granting LGBTQ couples the full benefits of legal marriage.

Matthews argued that confidential marriage might in fact be an attractive option to same-sex couples, since keeping their marriages out of the public record could allow them to determine for themselves who they want to have access to their personal information.

The Supreme Court ultimately ruled Prop 8 unconstitutional, so same-sex couples in California were free to choose a confidential or regular marriage license. The court also legalized same-sex marriage nationwide in June 2015, giving all LBGTQ couples the option to marry freely. Yet, given the recent wave of anti-LGBTQ legislation, Matthews’ suggestion that some same-sex couples might have reason to want to keep their marriages private resonates today.

According to the ACLU, LGBTQ folks are frequently rejected by employers, denied compensation and benefits, and even fired on the basis of their sexual orientation or gender identity. Giving LGBTQ people the choice to keep their marriage records confidential allows them, if they wish, to keep their sexual orientation hidden from employers and others who may discriminate against them.

Not all LGBTQ people are looking to keep their marriages secret, though. Ross Mar Divinagracia, a gay man living in Los Angeles, says that confidential marriage isn’t for him.

“If I got a marriage license, I would be proud of it, and want it to be displayed (i.e. public record) along with everyone else, with it being treated normally, like everyone else. It’s a marriage license, not a ‘gay marriage license.’” He adds, “Having it hidden/private is the same thing as having your license in the closet. And who wants to go through that phase again?”

Still, offering confidential marriage as an option in states across the country allows some protection for those who feel unsafe being out, or don’t want their marriage to be a part of the public record for other reasons. Offering the choice could be even more helpful in regions or states where strong anti-LGBTQ sentiment still exists, unlike more liberal California.

As for me, my research concluded when I found out that despite the initial lower price tag of a secret marriage license, the cost evened out because of an additional fee required to obtain a confidential certificate. I am in a straight relationship and have little reason to fear that my marriage being open to the public will have negative repercussions for mine or my fiancé’s personal or professional lives, so I clicked the option for a public marriage license and moved on.

Photo courtesy of Flickr user Little Vegas licensed under Creative Commons 2.0


Jumana Bambot is an editorial intern at Ms.