Gay Marriage

On May 16, 2008, the California Supreme Court found that gay marriage was a right. In response, California voters have just approved Proposition 8 which changes the State Constitution to define marriage as being between one man and one woman and denies recognition of gay marriages.

This leaves some 18,000 couples, who thought that they were legally married, in some sort of legal limbo. It is also possible that the proponents of Proposition 8 did not follow the correct procedures for making this constitutional change so the courts will be doubly busy. Perhaps Proposition 8 should have been titled 'The California Lawyers and Judges Full Employment Act of 2008'.

The problem with any discussion of gay marriage is sloppy thinking - with ideology and religious fundamentalism added for good luck. Few are willing to recognize the fact that there really are two separate issues involved.

The first issue is the fact that marriage, as defined by most religions, is a sacrament. As such, it is normally restricted to one man and one woman although the Mormon Church practiced polygamy - polyandry was never acceptable - for many years and Islam permits up to four wives. On the other hand, marriage - as defined by the State - should have no requirement for any church involvement whatsoever. In many states, judges perform more marriages than do members of the clergy.

For religious people who are opposed to gay marriage, there is a solution: mind your own business and don't marry one.

The second issue is what, for lack of a better term, might be described as the formation of a company called 'Family Economic Unit, LLC' to undertake the business of life. The government provides quite a number of legal, financial, and tax advantages to this company: the spousal exemption from estate taxes, reduced income tax rates, and the ability to determine the medical care to be provided to another member are among them.

None of these benefits depend on the religious sacrament of marriage. They are provided equally to all those whose marriages have been registered - whether or not a church was involved. This is in accordance with the First Amendment's establishment clause ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"). The establishment clause certainly makes any government requirement for a marriage to be performed in a church unconstitutional. It also prohibits any requirement that a marriage conform to specific church doctrines.

That the government provides certain incentives to 'Family Economic Unit, LLC' is desirable. That the government should specify the composition of 'Family Economic Unit, LLC' may well be unconstitutional under the equal protection clause of Section I of the Fourteenth Amendment ("... nor deny to any person within its jurisdiction the equal protection of the laws.").

More importantly, we have seen much damage done by the breakdown of families. It simply makes sense to encourage more stable family relationships. Allowing gays to marry would seem to serve that cause.

By the way, I am very straight - just a campaigner for freedom, the Constitution, and common sense. Of course, there are times when these causes conflict but not, I believe, with respect to this issue.