Opinion: The Legal Disposition of Gay Marriage

By Christopher D. Berger,

With last week’s ruling by the California Supreme Court on Prop. 8 and the accompanying backlash from the gay rights community, it seems appropriate that a discussion of gay marriage take place, and it’s high time I re-input my two cents. For those not familiar with the matter, the California Supreme Court in May of last year ruled that gay marriage was in fact legal in California, which opinion was put into effect immediately. In response, traditional marriage proponents in California put together a massive campaign to pass an amendment to the state constitution banning gay marriage. It became the single most expensive referendum in US history and passed despite intense opposition from the gay rights community, who challenged its validity in court, where the California Supreme Court ruled 6-1 last week that the amendment was valid, that the people did in fact have the right to amend their constitution and had done so lawfully.

Almost without question, this issue will soon be taken to a federal courtroom. The light in which the gay rights community generally attempts to frame the legal issues is one of equal protection under the law. They contend that by denying them the right to get married, the law does not treat them as the equals of heterosexual couples, denying them certain familial rights imputed to heterosexual couples immediately upon being wed. Prima facie, the legal argument is compelling, but ultimately proves specious.

The angle from which traditional marriage proponents should approach it at the federal level is as an issue of the separation of church and state. I know that legal doctrine is rank heresy to most of the traditional marriage community, but stick with me, please.

Marriage has been since time immemorial the province of the religious establishment. In this nation, our Constitution does define a separation between the church, i.e. the religious establishment, and the state, specifically one intended to keep the state out of the church. Influences of the church upon the state constitute a much thornier issue, but one would be hard-pressed to show that the Constitution allowed the government to meddle in religious affairs. In mandating the existence of gay marriage, the government is nonetheless doing just that. The question of who is and is not to be married is one which has, until the past decade or so, fallen to the church. Marriage exists as a spiritual matter, as understood by most people, a matter of the heart and soul, not the pocket book or voting booth. In mandating the legality of gay marriage, the federal government would be therefore overstepping its constitutional bounds on two fronts.

The argument has been made to me in the past that the government, in fact, has long existed as the keeper of marriage, that it is de facto the authority governing it. The government exists as record keeper and issues licenses for marriage (or not, as the case may be), and the government is at least as involved in the process of marriage as is the church. The government, therefore, has the authority to issue marriage licenses to gay couples wishing to be wed, regardless the opinion of the church.

Let us be very careful, however, to properly define the government’s role in marriage. It is true that the government now exists as the record keeper of marriage to the exclusion of the church, but that came about more as a practical matter than anything else. Long gone are the days when a church could accurately maintain records of the goings on of its community, both because of the number of churches of all stripes and the increasing geographic mobility of the global populace. The government is the natural second choice for such, granting a degree of organization unavailable under the previous system and helping to ensure the preservation and accessibility of records.

Laws proscribing incest and the legal union of cousins too closely related stand because of the governments vested interest in protecting its citizens, including children from the proposed unions, against the various problems engendered by inbreeding. That said, this does not place the question of who is to be wed in the hands of the government; the church could still marry two such people if it was of a mind to (though that circumstance is, I am fairly certain, quite rare) in a purely religious ceremony with no recognized legal bearing. The power of government here is not to prevent the marriage, but to discourage it. Questions of polygamy can be similarly disposed of.

The important question to consider is why the government issues licenses in the first place. Generally speaking, they do so to regulate the behavior of the citizenry in the interests of the citizenry by ensuring that those wishing to participate in certain activities are qualified to do so without unduly endangering themselves or others. In the case of marriage, this is only part of it; they also wish to be able to track who has been wed so as to properly accord them the various rights and privilege which the government has legally imputed to married couples. Legally, the government recognizes marriage as an accord between two people, each granting to the other certain rights of property, visitation, and care, which accord does not broach upon the spiritual aspects of marriage, but merely in the eyes of the government attends the state of being married. Thus one may draw a bright line between the affairs properly administered by the government and those properly administered by the church.

Into that second column, affairs properly administered by the church, are placed things such as who is to be married, what behaviors are appropriate between married couples, and what variety of relationship constitutes or merits a marriage. These are the purview of the religious establishment, and the government has power over them only inasmuch as it may attach certain rewards or punishments to the exhibition of certain behaviors within or outside a marriage, much as it has done with the sacrament of marriage itself. Thus marriage itself is an exclusively ecclesiastical matter, while all the legal trappings are exclusively governmental affairs.

Much as a church could perform a marriage without the benefit of government approbation in the form of a marriage license, so also could the government define a new path to the raft of rights and privileges defined by the government as being attendant upon marriage, which new path generally goes by the name ‘civil unions’. Under such an arrangement, the government can grant the rights and privileges it bestows upon couples in marriage to other couples to whom the religious establishment refuses marriage without infringing upon the religious establishment’s proper authority. That is the ruling any judge worth his salt should give on the matter.

I know this sticks in the craw of a lot of traditional marriage advocates who view civil unions as a foot in the door for gay marriage, and politically speaking they may be right. Nonetheless, legally speaking, we must give to Caesar what is Caesar’s, in this case the ability to bestow the rights and privileges attendant on marriage wherever, however, and upon whomever the government sees fit.

Civil unions are not an ecclesiastical matter. They have nothing to do with the church, and can be viewed as devoid of the spiritual significance attached by the church to marriage, while also neatly sidestepping the equal protection argument of the gay rights community. Equal protection under the law cannot extend to a purely ecclesiastical matter, and all the other attendant matters are dealt with in the framework of civil unions.

Let me be clear: I do not approve of homosexuality, personally. It is biblically discussed as an abomination before the Lord, one of two sexual sins to be so discussed (the other being bestiality), and I am therefore convinced that no church should condone homosexuality, explicitly or tacitly by performing gay marriages. That said, the place of the church in determining how the government regards homosexuals is legally questionable. Scripture places an emphasis on personal responsibility for personal behavior, such that it is not my place to attempt to obstruct a gay couple from being together, if that is what they choose. Their freedom to sin is biblically unquestioned, but they have no freedom to demand that the church accept, condone, or endorse their sin.

At the same time, the government’s place is not to determine the morality of the situation, merely the legalities of the same. I don’t see how civil unions are legally avoidable, but I also don’t see how gay marriages are legally permissible. That’s my two cents, make of it what you will.

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