I have been mulling this over for a while and I still can’t figure out why no one has attacked the problem from this angle yet.
Gay Marriage. Like it, hate it, your personal opinion on the issue doesn’t matter to me. I know what I am comfortable with and I don’t care to convert you to either side of the issue. All I care about are the following questions:
Why does our government even issue marriage licenses not civil unions to everyone? Why has this not been one of the main focal points of the gay rights movement?
I have been informed that many in the Gay/Lesbian community view civil unions as demeaning. I see their point. To have 3/4′s of the rights of a “married” person is not the same thing and should not be thrown to them as a bone to make the issue go away. If the states wish to make a decision on this issue they should fully commit or fully deny equal rights, in for a penny in for a pound. None of this sort-of equal baloney that just makes everyone angry.
Very Brief History Note-
The US court system, or Common Law, is based upon the British system of common law, but despite what many Americans believe it is not the highest form of law in the land. In America there are actually 5 ways in which a law can be created, Constitutional Law, Statutory Law, Case Law/Common Law, Administrative Law, and Executive Law. Although we are closely connected by heritage and combined shared tradition with England, the British government is NOT very similar to American government beyond the our shared fundamental principles of democracy.
Relevant to this situation (and the traditions we inherited from them) the British do not employ the same separation of Church and State that we hold fundamental. Although there is now freedom of religion in that nation, the Bishops of the Church of England still hold voting seats in the House of Lords and the Sovereign is the head of their State Religion (and is still restricted by law as to the religion of the person they wish to marry). It makes sense for the government of that nation to issue marriage licenses as an administrative arm of the church. It does not make the same sense in America.
HERE we HAVE a separation of church and state. If I were an attorney employed by any of the groups seeking equal marriage rights this is where I would attack. I think that this holdover of British common law is in violation of the First Amendment and as such can be struck down no matter how long it has been on the books.
Before you start frothing at the mouths, let me be clear. I think the government ought to regulate which consenting adults can legally bind themselves into a contract together. I think they should be able to collect all relevant dues from this contract, keep the contract on record and use it just as they always have – with one exception, the government is not a religious institution. What it deems to be an acceptable, legally-binding contract for one set of consenting adults, should apply to all consenting adults deemed fit to enter such a contract. (At that point the government may bring forward its evidence, based on something other than religious tradition, concerning whose union is deemed harmful to society, ex. family members within certain degrees of relation, etc.)
Marriages, on the other hand, should be left up to religious institutions who should be ABSOLUTELY free to decide for themselves if the union falls within the framework of their faith. If it does not, they should have the right to decline to marry any couple in the eyes of that religion. This would have ZERO effect on the couple’s civil status or their rights in American society.
In America it is clear, at least to me, we should enter into a contract with each other in the eyes of the government, we should enter a marriage in the eyes of whatever lord we choose to bless us. They are not the same thing in. At least not according to the First Amendment.
While I do appreciate the point of view of the gay/lesbian community on the distasteful or demeaning nature of the civil union issue, I can help but think that emotions have clouded reason on an issue that may be critical. It is not deeming to ask for a level playing field. You may say this is just semantics…marriage – union, what’s the difference, when speaking of the law, words their specific meaning and semantics is everything. Never underestimate how a little word can make a HUGE difference. (Go ahead, try to find “privacy” in the constitution, yet it has caused more legal heartache than almost any other word in the English language.)
I say this as a straight, personally religious, person, it has ALWAYS bothered me that I had to obtain a marriage license from the government. I never thought they had the right to issue such a document to me, only my church had that right.
So I am curious, other than an issue of distaste (which attornies are paid enough to overlook), where is the gaping flaw in my logic? If it were this easy I have to believe this would be a major strategy already.
