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 - sacraments.

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 in part.

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.