By now most of you have heard that the courts have ruled that California's Constitutional amendment banning gay marriage is unconstitutional. DrewM has a detailed breakdown of the ruling over at Ace of Spades HQ. I'm not a lawyer, nor do I play one on the Internet so won't comment on whether the judge was correct or not. Instead, I'd posit that the entire discussion is actually missing the point. Why is the government deciding who can or cannot get married in the first place?
Marriage has been a religious institution for almost all of history. It is only in the last 200 years or so that marriage started to be decoupled from religion. The First Amendment prevents a state religion (such as the Church of England) and set up a government that is guided by -- but not ruled by -- religious beliefs. That allows for couples to be united by a Justice of the Peace or other civil officer rather than a priest or minister and still be considered married.
So far, so good. However, states and, unfortunately, the Federal government started to codify certain legal benefits to married couples. Many of those benefits, such as inheritance and hospital visitation rights, have been part of part of the American and European culture for some time. Others, such as tax breaks, were new. With the benefits, the states decided they had the authority to decide who could get married and the requirements for ending a marriage.
That brings us back to gay marriage. Most Christian churches denounce homosexuality as a sin and, therefore, refuse to marry people of the same gender. Gay couples are left to turn to the state. Unfortunately for them, the state laws are based on Christian morals and have codified those same restrictions into the law.
What's left for a gay couple to do? Some don't sweat it and just live together, married in their own minds and hearts but with none of the civil benefits granted by the state. Others do what has been done throughout the country and try to get the laws changed. The problem is that they (and most everyone else) forget that the state benefits and marriage are two different things.
Beregond described the differences very well in a post a few days ago.
The interest in the state in a marriage is all of the legal things- Property, care and custody of children, inheritance (property again,) rights to access things like insurance, visitation rights at a hospital, the right to make decisions for a partner who is incapacitated, and taxes (property yet again.) All of these things were established for my wife and me by the time we walked out the door of the justice of the peace. But we wanted a WEDDING. A ceremony, before God, family and friends that publicly showed we were bound together as a couple for all time. I suspect most people who love each other in an exclusive partnership want the same thing.
The trick is to separate the two concepts in the minds of the people and, more importantly, in the law. The first step is to make civil unions universal. It doesn't matter if the couple is hetero- or homosexual or if they choose to go through a religious marriage ceremony later. They must still fill out the paperwork to form a civil union.
I would suggest that civil union replace the current "marriage license" which is currently required in most states. The union becomes a standard contract signed by both parties (and notarized) with the legal benefits tied to that contract. The state would also allow the couple to add additional restrictions or terms of termination to the civil union contract. Such things are currently called prenuptial agreements. It amounts to the same thing. At that point, the couple is united, as far as the state is concerned.
Couples who wish to, may still "get married" in the church of their choice but the marriage is only binding within the church, not at the civil level. Marriage returns to what it was been all along: a religious ceremony. That said, not church should be forced to perform a marriage ceremony for anyone that doesn't fit their requirements. For example, a gay couple could not force a Catholic priest to marry them. In that way, everyone's religious freedoms are protected and no one's civil rights are compromised.
At this point, some of you are saying to yourself, "My religious beliefs say that homosexuality is a sin. Why should I support a change that encourages it?" For that, let me quote two works, both of which I consider to be scripture.
We do not believe it just to mingle religious influence with civil government, whereby one religious society is fostered and another proscribed in its spiritual privileges, and the individual rights of its members, as citizens, denied.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...
The immorality of homosexuality is religious in nature and not universal to all religions or even all Christian sects. To use religious belief to justify a law that does nothing to promote the civil society is akin to the government establishing a religion. It is unconstitutional.
(Originally published at PerlStalker's Ramblings)