COLUMN: The Supreme Court should delegalize all marriage
The Supreme Court heard oral argument on the Proposition 8 and Defense of Marriage Act (DOMA) cases, respectively, on March 26 and 27.
If you read the transcripts, it seems highly unlikely that there will be a broad, sweeping ruling such that gays will be marrying in Salt Lake later this year. However, it seems even more unlikely that gay marriage proponents will lose the case. The country has simply moved too far left too fast for that to be a real option.
In the end, the court will do what it does best. It will make a limited ruling affirming the civil rights progress that has been made and allow the civil rights movement to continue propelling itself forward or fail as the American people see fit. The court is stuck in a dilemma. A slim majority of the justices were appointed by republican presidents and are not too fond of gay marriage or change of any kind.
But at the same time, it has become clear through polling data, demographic data and international culture what the opinion of the future will be. The court relies on public trust for all of its power. Consequently, they have a vested interest in being viewed favorably by history.
Preserving the power of the court is undeniably the single most salient reason behind Chief Justice John Robert’s support for Obamacare. The court is torn and they are searching for a solution, but they will never find it. In the end, the truly optimal solution that would make the most people happy is something that the court will never do: delegalize all marriage.
Before you get upset, I will first explain exactly what I mean when I say that marriage should be delegalized. Marriage is comprised of two distinct components. There is a cultural or religious element to marriage and there is a legal element to marriage.
Religions marry individuals. Cultures marry individuals. Individuals fall in love. They raise a family. They perform ceremonies and traditions. For many, God is an active participant. This religious side of marriage is completely irrelevant to the legal side of marriage.
The legal aspects of marriage specifically relate to society’s interest in continuing and proliferating itself, in promoting healthy child-rearing and in safeguarding the future generation. Society may have a legitimate interest in promoting cohabitation and the efficient usage of resources.
But, we have a wall between church and state. Society has no business whatsoever in promoting marriage “under God.” There is no state interest in ensuring that marriage is marriage. There is no state interest in preserving marriage as a “sacred institution.”
The state only has an interest in promoting specific behaviors associated with marriage and the state has no legitimate interest in intruding further into our privacy than is absolutely necessary to ensure that those specific state goals are being maximized.
To delegalize the institution of marriage, then, does not mean to end marriage.
It does not mean that we end the legal benefits associated with marriage. It simply means that we separate the religious and legal elements of marriage. Under the model I am proposing, the state would continue to grant all of the legal benefits of marriage that it currently grants, but they would be granted on the basis of specific rational criteria devoid of religious significance.
Pastors would not be registered by the government. Churches or cultures with diverse customs could perform ceremonies consistent with the voice of their own conscience. The world I am proposing disentangles the state from our religious lives. It protects traditional marriage while tolerating differences in viewpoint at the same time.
This is not just a gay issue. There are many individuals in society of diverse religious backgrounds who choose to cohabitate monogamously with a partner they love and cherish, with whom they raise children in a stable, loving environment. Marriages performed in foreign countries are not recognized by our government when those individuals move to the United States.
Gay marriage is not abhorrent to all religions. Hinduism and Buddhism have never had a problem with it. In many Native American religions two-sex individuals were revered and highly sought after as wives. They became shamans and spiritual leaders. Even Protestant Christian clergy are not unified on this issue.
Right here in Logan we find an Episcopalian church that welcomes LGBT individuals with open arms. Numerous Christian churches voluntarily perform gay marriages in states where it has been legalized.
For the law to pick out a specific religious definition of marriage and to hold it up above and beyond state interests, over the other religious definitions, is a face-value violation of the First Amendment prohibition of state endorsement of any religion.
Conservatives beware. The cultural tide is turning and it is turning rapidly. The most recent Washington Post/ABC poll showed that gay marriage was supported by Americans at 56%-38%, well outside of the margin of error. The government is very clearly interfering in the religions of non-Christians. The government is dictating the exercise of conscience.
It is true that today, the government supports your view of marriage. It is true that today the government is blatantly endorsing Christianity. But the tides will not always be the same.
Who can afford to allow the rules to be bent to their favor, when it forever sets the precedent that the rules may be bent?
In the end, the best course of action is to ask the government to stay out of religion altogether. Do this today when the law favors you and you will have a leg on which to prop up the defense of your religion when later it is attacked. Do this today and you can avert a slippery slope that can lead only to disaster.
In the wise words famously, albeit incorrectly, attributed to Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.”