Wednesday, December 16, 2009

Marriage is a Civil Rite

Here is a really nice write-up of the federal courts challenge to California's Prop 8.

This challenge is particularly important because it will have a massive impact at a national level.  If the suit brought by Olsen and Boies is successful, it'll put a stop to this emotionally and financially draining, state-by-state battle we've been fighting for decades.

Prop 8 (and by extension, all the anti-gay marriage laws that have passed over the last few years) is unconstitutional because it
** Violates the Due Process Clause by impinging on fundamental liberties
** Violates the Equal Protection Clause of the Fourteenth Amendment.
** Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
** Discriminates on the basis of gender.
** Discriminates on the basis of sexual orientation.
How many American's even know what the Fourteenth Amendment says?  Passed by congress in 1868, the pertinent text reads:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws*.
* emphasis mine

Yes, I understand the argument that says marriage is a "religious rite" and has "traditionally" been reserved for opposite-sex couples.  It's also "traditionally" included multiple wives, women as property, arranged marriage between strangers, and child brides, but I don't see religous conservatives fighting to bring back to those traditions.  At least, not most of them.

The fact is, no one is asking for forced participation in a religious rite.  Churches already have the right to refuse their sacraments to anyone they want.  A divorced Catholic can't get married in the church.  A protestant couple can be denied a jewish wedding.  And nothing changes when the (already existing) right of same-sex couples to marry is finally recognized.

Here is another fact.  The state doesn't interfere with other religious sacraments such as baptism, christenings, first communion or bar mitzvahs and bat mitzvahs.  Why?  Because none of those rites come with state funded benefits and protections.  But once married couples began to accept civil benefits based on their marital status, then it ceased to be solely a religious rite; it also became a civil rite... and therefore a civil right.

The way I see it, there are ultimately two options.  Either protect the right of ALL Americans to wed the  consenting adult of their choosing, OR take away all state and federal rights and benefits that accrue from marriage.

Which do you think is the more reasonable alternative?


  1. If the government is going to continue providing benefits and protections relating to marriage, I'm all for having the government issue "civil unions" to all couples, gay and straight, and allow whatever legal benefits that stem from a legal partnership (insurance, inheritance, etc) flow as they currently do for legal "marriage."

    Then, if the couple in question wants to have that legally-recognized "civil union" blessed in the religious institution of their choice and call it "holy matrimony," so be it. The religious institutions in question can continue to exclude whomever they choose from their institution's rites.

    I think the word "marriage" is so charged with religious meaning in this country that it's actually become a distraction in the debate -- one that hasn't helped gay people at all. The numbers are pretty favorable for equal legal rights for gay people, as long as we don't call it "marriage," and quite honestly I think it's not a bad idea for the government to get out of the "marriage" business altogether -- just as it isn't in the baptism business or the bar mitzvah business.

  2. I completely agree with you, Ashley. I just want them to go all the way, in one direction or the other. Separate is not equal... we all know that.

    Actually, there are churches we can go to NOW and have a "marriage" performed. MCC, many Episcopal congregations, Unitarians... heck even the Quakers. The fact that the government recognizes some church weddings but not others is religous discrimination.

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