Today the high court is hearing cases regarding the constitutionality of DOMA and California’s proposition 8. On the surface, the legal challenge is masked in the 14th Amendment as an equal protection issue but in reality, at the heart of the challenge, this is a first amendment issue.
Marriage has been around since the beginning of human existence. Some of the earliest reference to marriage can be found in religious scriptures like the Bible. The practice for thousands of years have always been defined in a religious setting, whether that faith be Christianity, Judaism, Islam, Buddhist, Hindus or the ancient pagan religions of the Egyptians, Greeks and Romans. Even in the United States the civil definition and the religious definition have been in sync for nearly 400 years. It has only been in the recent past that the concept of marriage been questioned.
Governments have over time defined marriage as having certain rights and responsibilities. This occurred because over thousands of years, governments assumed the definition of marriage was well understood. This assumption, of course, could not be farther from the truth. The rights and responsibilities of husbands and wives vary greatly from faith to faith. Some faiths require a submissive relationship while others are more equal. Some faiths are prescriptive regarding the responsibility of each spouse. Some faiths have evolved over time and others have remained staunchly traditional.
In many faiths the vow of marriage transforms the immoral to moral. Marriage, in a religious context, morphs sinful activity into righteous and moral conduct. This unique feature of marriage can only be bestowed from a religious context. A secular definition can do nothing; it cannot define morality nor abolish sin. The principle of marriage is sacred. While it is not consistently defined among faiths, all principles of faith, deserve, nay require, protection.
Should marriage define rights and privileges under the law? Should marriage define what spouses are or are not entitled to under the law? Is it logical that marriage drives your compensation in the form of benefits? If you believe marriage is a religious concept then the answer is no. Nowhere else in our law do we explicitly leverage a religious concept to define rights and responsibilities. As Americans, we actually pride ourselves on separation of church and State. A principle, while not a constitutional principle, has worked itself into the very fabric of our laws. So why has marriage been the one exception?
Was it laziness or was it an assumption of consensus? Marriage became the surrogate for the ultimate civil union, a civil union with the assumption of fidelity. Civil law evolved around this ultimate union to enhance certain privileges and rights. The evolution of these privileges and rights is where the flaw of our legal evolution resides.
Does anyone of faith believe that the State can perfect marriage through legislation? Of course not. Can the State lessen marriage through legislation? This concept is equally absurd. The State can no more define marriage than it can define God.
In a nation, where the first amendment protects religion and the fourteenth amendment requires equal protection under the law, it is almost amazing that the civil law has embraced a religious principle so rigorously.
No, the state cannot define marriage but must respect it. The state can only define unions. The state should be barred from performing any rite, which may mask itself as a quasi-religious ritual. The first amendment protects faith and the state mimicking faith is forbidden, as the constitution forbids a state religion real or contrived.
The civil union, a legal concept, can be defined by the State. The State should replace references to marriage in civil law with the term union. As a matter of expediency, religious marriage should be transformed in a civil sense to a civil union with fidelity. All legal rights, privileges and responsibilities would be based on one’s union. Likewise, the union would define benefits such as healthcare coverage. The bedroom should be kept out of the definition.
Some have proposed that this is an issue for the states. It is not.
Perhaps the best solution for our modern day dilemma can be found in the teachings of an ancient religious leader who once said “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.” Civil law and unions as well as the associated rights, privileges and obligations belong to the State and thus marriage, sin and faith should be reserved to God (religion). It is an interesting place the court finds itself. Defending faith while promoting equal protection. We shall wait and see if they are up to the task.
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