Contrary to popular misconception, there is not one societal institution called “marriage”. There are actually two: one is religious and the other is civil. A religious marriage is between you and your higher power; a civil marriage is between you and your government.
Let’s assume for the moment that you are a Catholic. You can go down to City Hall and get hitched, but the Church would not recognize it or consider you to be married as far as God is concerned. Barring that religious ceremony, you would still be living in sin, despite being legally married and enjoying all the privileges the state provides to those who have entered in such a union. Similarly, your parish priest could marry you in an endless ceremony involving kneelers and incense and votive candles, and you would then be married in the eyes of God. But unless you secured a marriage license first and returned it fully filled out to the county clerk’s office, you would only be married in the eyes of God. And while that may keep you from burning in hellfire, you would not be entitled to any of the legal benefits of marriage in your state.
So there you have it: two completely different types of marriage. The only way in which they coincide is that the government has been kind enough to legally recognize marriages performed by clergy (as long as the appropriate paperwork and filing fees accompany it), allowing couples to kill two proverbial birds with one proverbial stone. That, however, is the only way in which the two types of marriage overlap.
A religious marriage, among other things, allows you to have sexual relations with your spouse without incurring the wrath of God. It is, in theory, supposed to last until death you do part, but as we all know, that is one part of the “sanctity of marriage” that many of its most ardent defenders choose to ignore. A civil marriage, on the other hand, guarantees nothing in the afterlife. It does, however, grant the married couple tax breaks, joint ownership of property and assets, inheritance rights, next-of-kin and medical decision rights, and Social Security, Medicare, and disability benefits, among others. This is just the tip of the iceberg: there are actually 1,400 legal rights conferred upon married couples living in the United States. Most of these benefits cannot be secured by entering into a mutual contract. The upshot: denying a couple the right to a civil marriage means denying them these benefits. Many opponents of same sex marriage like to claim that gays and lesbians already enjoy the right to enter into a civil union. Unlike a legal marriage, however, employers and insurers, for example, are not required to recognize a civil union – conferring rights becomes an option and not a requirement.
The United States of America may have a predominantly religious populace, but it is officially a secular nation. We enjoy a separation between Church and State; in fact, this separation - thank you, Thomas Jefferson - is one of the main precepts upon which this country was founded. Our fore-parents were fleeing from the tyranny of the Church of England and wanted to form a nation of civil laws completely separate from God’s law. Every citizen has the right to Freedom of Religion – but also to freedom from religion. In America, nobody has the right to impose his or her religion on anyone else.
So despite what Prop 8’s proponents would have you believe, the issue of same sex marriage has nothing to do with religion. Just as the Catholic Church (or Mormon Church or Lutheran Church or your local mosque or synagogue) is free to not recognize my marriage, they are free to not recognize any marriage, gay or straight. The claim that churches will lose their tax exempt status for refusing to perform gay marriages is a patently false one. Gay marriage was legal in California prior to Proposition 8’s passage and no church lost anything. It makes for a great scare tactic, but there is not one iota of truth in it. Ask yourself: is the church required to marry you? If not, then it follows they are not required to marry anyone.
So now that we’ve established that state conferred marriage rights have nothing to do with religion, we are left with civil marriage. Civil marriage is the only issue on the table in the same-sex marriage conversation. This is where the Constitution becomes involved. The federal Constitution has an Equal Protection Clause, part of the 14th Amendment. The EPC states that “no state shall… deny to any person within its jurisdiction the equal protection of the laws” and it empowers the judiciary to enforce that principle against the states. So every time that a politician or activist screams that “judges are imposing their will on the people” when they overturn a law or ballot measure on constitutional grounds, they are being intentionally dishonest: all the judges are doing is interpreting and enforcing the Constitution. Attacking the judiciary may make for good politics, but the judges are merely doing their job. We have three branches of government, we have checks and balances, it’s how the nation was designed.
Because of the Equal Protection Clause, no state may grant protection and benefits to any citizen that they do not grant to all citizens. Segregation was once considered legal under the concept that blacks and whites were kept separate, but treated equally. This despicable “separate but equal” doctrine was overturned by the U.S. States Supreme Court in the landmark case Brown v. The Board of Education. Today, opponents of same sex marriage want to bring back the unconstitutional concept of “separate but equal” by advocating that heterosexuals be granted civil “marriages”, while same sex partners be granted civil “unions” – separate but theoretically equal. Putting aside the fact that any such arrangement would not pass constitutional muster, civil unions are hardly equal anyway, in that they do not provide all of the rights, benefits and protections of marriage. The good news for opponents of same sex marriage is that the Equal Protection Clause limits only the powers of the government and not those of private parties. Again, this means that churches, synagogues and mosques can choose on their own whether or not to perform or recognize any marriage, while the state may not.
Now I’m no lawyer, but it really does seem to me to be that simple. Legally and constitutionally speaking, as I see it, the government has two options: grant no couple marital rights and protections or grant any couple who wants it those same rights and protections. There really is no wiggle room. Either get out of the marriage game altogether, and let religious marriage be the only game in town… or abide by the Equal Protection Clause.
In America’s not so distant past, whites and blacks could not intermarry in some states, and these anti-miscegenation laws were not overturned until 1967. You heard me – 1967. In the Supreme Court case Loving v. Virginia, wherein these laws were declared unconstitutional, the Court cited – you guessed it – the Equal Protection Clause. Well, just as the states no longer have the right to refuse marriage rights to interracial couples, they similarly have no right to deny them to same sex couples, on the exact same legal grounds.
Proposition 8 passed by a simple majority of voters and it would amend California’s Constitution to eliminate the rights of same sex couples to marry. This is a clear violation of the federal Constitution, which, as I've written, prevents any state from denying to any person within its jurisdiction the equal protection of the laws. Proposition 8 is, by definition, federally unconstitutional and will likely end up in front of the U.S. Supreme Court, challenged on Equal Protection grounds. If past is prologue (and the Court is big on precedent), the Supremes will have a hard time upholding a ballot measure so clearly in violation of the 14th amendment. But we shouldn’t be too sanguine about our chances, because as evidenced by the loathsome decision handed down by the Court in Bush v. Gore, the court has shown itself willing to make decisions that go against every legal precedent it has previous held when it feels like putting politics first. Were they to reject so clear a 14th Amendment violation in this case, it would be a true stain on the nation.
Regardless, the next time someone tries to tell you that a ban on same sex marriage is about religion, or free speech, or the protection of children, don’t believe it for one second. That’s politics, not policy. Religious marriage, although sadly much discussed in this case, is not relevant to the discussion. Unfortunately, opponents of gay marriage will continue to cloud the issue with a myriad of attacks that are wholly irrelevant and appeal solely to emotions or religious preferences; arguments by which they attempt to give their own deeply held personal beliefs or biases the power of law. And while I understand they may personally be repulsed by the idea of same sex marriage - and fear a nation that tolerates it - there were plenty of Americans who were equally repulsed by the idea of interracial marriage; of women’s suffrage; of giving African-American slaves full citizenship. This is precisely why we have a constitution – and a judiciary to enforce it - and don’t interpret our laws based on the whims of the populace.
Once again, for the cheap seats: religious marriage will continue to be what it is and always has been; this is only a matter of civil marriage, only a matter of whether or not any state government may deny any citizen rights and protections granted to other citizens. The short answer is, no state may. And since the government has no immediate plans to take away the 1,400 marriage rights that get conferred upon those preferred couples, then they must confer them on any adult couple who wants it as long as they pay for the license, have the ceremony performed by a judge, justice of the peace or willing clergy, and return the license fully filled out.
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