Saturday, November 8, 2008

It's time to privatize marriage!

The provision added to the State Constitution by Proposition 8 was deceptively simple:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

But it is not at all simple. It is time to make marriage a private affair.

"Marriage" has two complex components, a religious component and a civil law component. To understand the difference between the religious component and the civil component, consider this. A couple could be "married" by the Pope on the steps of the largest Catholic church in the country and the marriage would not be legally valid in any state without a license issued by a government clerk. Yet in many places, a marriage ceremony performed by such a clerk pursuant a license issued by that clerk would be valid anywhere else in this country. The validity of a "marriage" in America is all about a government license and nothing about the beliefs of the couple involved.

It wasn't always this way. Prior to the Civil War, Americans would have been startled at the idea that they would have to get the government’s permission to get married. Our Founding Fathers had no understanding of marriage in that context. Americans must remember that marriage license laws were introduced in America mostly to prevent blacks from marrying whites, in other words to write into law racial discrimination based on beliefs of the sincere American majority.

And so it came about that in our legal federation marriage must be licensed by the government. When two people accept a state marriage license, they authorize the state to define a "contractual agreement" between them. This is the most bizarre legal entanglement ever foisted on a naive population. Most Americans who marry have no idea what is in the terms of the contract they sign. Unlike most contractual agreements people enter into, a majority of the legislature of the state in which the couple reside can rewrite a portion or all of that contract, without the consent of the couple. Further, unlike most contractual agreements, the terms of the contract change the moment the people involved relocate their residence to another state.

It is true that most religions have some form of marriage ceremony and many use terms like "sacrament" or assign a context of "sacred duty" to marriage. Within the religious context marriage historically relates to sexuality and procreation. And the dominant religions in this country adhere to doctrine the precludes gay marriage.

But whatever religious context within which one may consider marriage, "real Americans" know that religious context has no place being incorporated into any law.

The problem isn't just that Proposition 8 precludes gays from getting married. The problem is that entire legal structure related to marriage legalizes discrimination. The crux of the problem is that single persons (including couples who cannot get a marriage license) do not have the same status under the law that a state marriage license grants to those who can get one.

The 14th Amendment to the U.S. Constitution clearly states: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." Proposition 8 clearly denies some persons the equal protection of the law by expanding the discrimination inherent in marriage license laws. We could discuss the concept of "civil unions." But such a conversation is relevant only if you believe in applying the legal doctrine of "separate but equal" whenever "equal protection of the law" is inconvenient for the majority within one American state.

My beliefs and your beliefs about marriage shouldn't be the basis of a legal structure creating different classes of people. Apparently, around 1867 many people who sincerely believed that blacks and whites should not marry instituted marriage license laws. Today marriage license laws exist that prevent gays from marrying because the majority of people sincerely believe gays should not be allowed to marry.

Many do still believe marriage license laws exist to protect children or women. But that is belied by the fact that we do not prohibit parents of children under the age of 18 from getting a divorce. Nor do we require women to marry to conceive children through artificial insemination. The majority of married women today do earn a living, and divorce laws offer little economic protection to either party. We most certainly do not require consenting adults to be married to engage in sexual activity.

It is time for California (and the rest of the nation) to eliminate from its statutes all references to any form of the word "marriage", and to "spouse", "husband", and "wife" or any term equivalent to those terms. The law must be silent on marriage as there is no way that the use of the term could not create a "suspect class" of favored people.

To paraphrase the U.S. Supreme Court: To separate [legally unmarried people] from others of similar age and qualifications solely because of their [marital status] generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

It's time to privatize marriage, to make it a private affair between people, not subject to government interference.

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