Freedom of religion and gay marriage
The passage of a Federal Marriage Amendment (FMA)
sets up a dangerous internal contradiction within the Constitution
that threatens the dynamics of our Constitutional law.
On February 24, 2004, George W. Bush walked before news cameras
to announce his support for a Federal Marriage Amendment. In his
statement, he said:
“ . . . The union of a man and woman is the most enduring
human institution honored and encouraged in all cultures and by
every religious faith. Ages of experience have taught humanity that
the commitment of a husband and wife to love and to serve one another
promotes the welfare of children and the stability of society.”
What Bush claimed as fact is myth contradicted by history and supported
only by the beliefs of the cultural majority of the United States.
That is not enough justification to monkeywrench our legal system.
We create religious rituals to communicate complex experiences that
cannot be put into words. Some of those rituals are core experiences
for people within religious institutions, sacred to their practitioners
If some religions accept same-gender bonding as a sacrament, then
any law attempting to restrict same gender marriage is unconstitutional
because it interferes with the prohibition clause of the First Amendment,
wouldn’t you think?
That’s not the way it works. The state keeps religions under
control through civil law. If a religion supported human sacrifice
it could have a ritual that mimicked the sacrifice, but if they
actually performed one, everyone involved would probably be up for
murder. There are lots of ways civil law impinges on the full exercise
of religion, but they are all classed as civil law, which is subject
to debate and may change as the society evolves.
The Massachusetts Supreme Court found that the civil aspects of
the state’s marriage laws were unconstitutional. The Court
defined the issue as a civil rights issue, involving discrimination
and equal protection, totally separate from religious issues.
You can perform all the religious rituals you want to bind souls.
That doesn’t make them carry legal weight. As it now stands,
the state gives special privilege to marriages under select religions,
those that define marriage as a male-female bonding.
No one really knows what will happen when challenge cases reach
the U. S. Supreme Court but, recently, other laws attempting to
limit behavior on the basis of sexual identity have been found unconstitutional.
Many don’t even make it past the state courts.
States that try to disallow same-gender marriage via state constitution
amendments may be violating Federal civil rights standards established
by the Supreme Court. No state constitutional amendment may be able
to legally stand up to that test.
There is a simple way out of this morass: Require that all marriages
be classed as civil unions without discrimination regarding all
legal rights now afforded marriage, and separate religious definitions
of marriage from the law. That way a church can define marriage
sacraments any way it pleases. But, there will be no civil law benefits
of any marriage ritual. Church and state would be completely separated.
Civil law simply would then act to administrate the legal aspects
of all unions just as it does now in civil unions. The definition
of marriage, for legal purposes, would no longer have any religious
or value connotation.
But, that splits the church too far from the state for many, so
the solution they choose is to define all marriages in terms of
their spiritual definition.
The Federal Marriage Amendment forces a particular concept of marriage
on all institutions that legally perform marriages. It ignores religions
that do not now have the power to marry persons in same gender partnerships,
but are open to doing so. It denies states a right they have had
for over two hundred years—the regulation of marriage partnerships.
It imposes on the First Amendment a template that cannot be seen
as other than a state religious doctrine, establishing a state religion
By amending the constitution, we limit all further debate on the
issues involved. Unlike an issue that works its way through the
legislature to become a law or goes through the courts to be tested
against the Constitution; or is being studied for consideration
by a committee within the Executive branch, an amendment can become
the law purely on the basis of political muscle. No further debate
is possible except in consideration of appeal of the amendment or
in court interpretations of the amendment.
What is particularly dangerous about the FMA is that it sets up
an irresolvable contradiction within the Constitution itself. The
First Amendment says we have a right to decide our relationships
with our gods and goddesses and prohibits the state from establishing
a dominant theology. The proposed 28th Amendment is based solely
on moral arguments based in a particular set of religious traditions,
making legally moot the practices of religions in which same-gender
relationships are now, or might later be, accepted.
The genius of the Constitution of the United States of America is
that allows for unlimited social evolution. The framers knew that
societal values were subject to change and should never be set in
stone. The Constitution allows options, it allows differences, and
it allows growth and adaptation.
This amendment undermines the processes of our democracy. This amendment
denies rights to a class of people without good
reason. This amendment establishes, as part of our Constitution,
a bigoted, irrational and limited world-view.