As another election approaches the issue of marriage equality and where various Republican candidates stand on the Defense of Marriage Act or a possible Constitutional amendment defining marriage is already starting to come up as special interest groups and the media try to force the debate towards divisive social issues.
In this debate, no one seems to be asking the fundamental question which underlies the entire gay marriage issue. Marriage is first and foremost a religious institution. It is a fundamental sacrament in most churches. Why does the government think it should be in the marriage business in the first place. What right do they have to dictate a matter of faith or to decide who can or can’t get married in the first place?
In all this talk about a Defense of Marriage Amendment our legislators seem to have missed the fact that we already have an amendment which defends marriage, the First Amendment. It clearly defends marriage as a sacrement of the church and declares it to be free from government interference when it says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
If my religion recognizes marriage as a sacrament and allows me to marry someone of the same gender, doesn’t the First Amendment clearly say that Congress has no right to prohibit that exercise of religion and that I am free to practice that sacrament? To tell my church what it can and cannot define as a marriage seems like a total violation of this separation of church and state. Marriage isn’t defined in the Constitution any more than Baptism or Confirmation is. The state doesn’t try to interfere in those rituals. Why should it interfere in marriage?
What we need here is not another amendment, but a clear decision from the Supreme Court declaring that the government has no jurisdiction over a religious institution like marriage. Then, if Congress wants to pass a law – it doesn’t even have to be a Constitutional Amendment – which defines what kind of living relationships people can have, they should go to it. Of course any such law would need to pass muster under the 14th Amendment’s equal protection clause, which would certainly rule out prohibiting same-sex relationships or polygamy or any other arrangement involving consenting adults.
Once you take marriage out of the arena of law and give it back to the church where it belongs, then any relationship between two people for the purposes of creating a household, combining assets and other activities like raising a family becomes a purely contractual relationship and falls under common law and the partnership laws of the individual states, all of which recognize the right of individuals to enter into binding contracts for extended periods of time and assign rights and legal status to those partnerships under the law, and anything can be written into a partnership contract, including shared control of assets and by extension presumably of children as well. Boilerplate partnership contracts could easily be developed which covered material possessions, powers of attorney, guardianship of children and every other concern and the local courthouse could have different versions available for different needs, so you wouldn’t have to pay for a lawyer.
Couples or members of a plural marriage or any other type of partnership could then file their contract at their local courthouse and that would be that. Or if they wanted, they could go to a church which sanctioned their particular form of marriage and have it recognized as a marriage under the laws of that church with a ceremony and everything. And make no mistake, there are plenty of churches willing to marry just about anyone to anyone else, and if there aren’t someone will certainly start one to fill the need.
This seems like a simple, clean solution to this divisive problem. It doesn’t violate the sacred institution of marriage – in fact it ends years of government violation of religious rights. It doesn’t add more useless junk to the Constitution or waste more time and money on pointless unconstitutional legislation. Finally, it allows consenting adults to live however they want so long as it harms no one else. Marriage protected and equal rights for all. What more could either side of this debate ask for? And if they aren’t satisfied with a solution like this, then let them tell us honestly what greater political agenda and moral values they’re really trying to force down our throats?