Friday, May 11, 2012

The "Gay Marriage" Debate and How it Could Have Been Avoided

What a strange trip the past weeks has been in the whole Gay Marriage Debate.  The state of North Carolina passed an amendment to their state constitution defining marriage as between a man and a woman and outlawing civil unions and even domestic partnerships between heterosexual couples.  Then President Obama came out in personal support of gay marriage although it is unclear what that personal position will mean for public policy.

I must admit, this country has taken a relatively simple concept, the right of an individual to make a legal declaration of love and companionship, and made a massive issue of it.  This is not to say that the proponents and opponents of the issue are not reasonable in their beliefs.  Each is well founded in logic and reasoning, at least from their own point of view.  But the ironic thing is that, this is a dispute that can be easily traced to a problem we in this country created:  we allowed ordained clergy to shortcut and/or perform a civil function.

Let us be clear, in ever religion of any size in this country, marriage is a sacrament, a religious rite that holds a special place within the doctrine and theology of given religion.  And that is fine.  Religion has a real and functional role in society and I would never deny that role.

But marriage is not solely a religious sacrament.  Marriage has a role in secular civil society.  For example, being married impacts things like real property rights, health care decision making, contracting, credit scores, taxes, and a whole host of other things.  Some of these are relics of a by-gone age and some have a real and important role in society.

But here is the greater problem in civil society.  The civil rights and liberties that we all hold as citizens and as humans exist as either natural rights (i..e life, liberty, pursuit of happiness) or as a function of sovereign power of  the people in a democracy.  I would include among the natural right or certainly constitutional rights, the ability to associate one's self, in business or in personal life with those who we choose.  So if you want to marry someone, that is an association right subject only a few limitations (number of spouses, age and consanguinity being the primary ones) should be granted to anyone.

But for a long time, the problem that this country has had when it comes to matters of marriage is a confusion of the religious rite with the civil association right.  Whether by tradition or lack of foresight or just a historical accident, this country has allowed members of the clergy to bestow upon two people not only the religious aspects of marriage (clearly within their purview) but also the civil secular benefits of marriage (not within their purview).  As a result, when it comes to marriage, we have applied religious tests (man and woman only) with a civil right that has no such test  and arguably cannot have such a test.

Some fundamentalists of any religious sect arguing against gay marriage note that it is contrary to the "natural" order in that such a union cannot produce children.  If the ability for the couple to produce a child is the test, then a woman who is infertile cannot marry?  Not even a man?  What about a widow in her 60's? Or a man who was once married but had a vasectomy?  Are we denying the right to marriage based solely on procreative prospects?  Clearly such a concept is not posited by opponents of gay marriage.

So the opposition is faith based, largely Judeo-Christian in nature.  But faith based objections cannot be considered in secular civil society--it is forbidden by the Constitution.  The First Amendment bars an establishment of religion.  By extension, should we be allowing religion to be the foundation for denying a segment of persons rights that the same Amendment guarantees.  The First Amendment protects the rights of people to assemble peaceably and the formation of a marriage is a peaceable assembly of two people.  The right to assembly is not predicated on a certain number.  People have the right to join or not join associations as they see fit.  Why can't they choose the person they want to be married to?

It is highly unlikely that the Founding Fathers imagined this scenario and so I cannot put words into their mouth.  Nor can I ignore the past history of this country.  But it seems to me, the greatest issue that people have with gay marriage has to do with the fact that it is an affront to their religion and their notions of tradition.  But they have no "legal" foundation for their argument.

To be frank, the greatest thing government and the church could do would be to not allow the clergy to confer the civil benefits of marriage through a religious ceremony.  Far better for a couple (of any mix of genders) to get a civil marriage license, have a 10 day waiting period and then file papers of marriage with the county or state.  Then be done with the whole problem of mixing a religious ceremony with secular rights.

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