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The California Anti Gay Marriage Referendum--Skeel

Reading the daily updates on the prospects of the California Anti-Gay Marriage referendum, I find myself quite conflicted. Like the two presidential candidates, I am not in favor of gay marriage, but I have long been troubled by the tenor of the campaigns to stop gay marriage (and even more about the campaigns against gay rights generally), which have often seemed unloving, to put it charitably. Two thoughts on the gay marriage issue.

First, gay marriage strikes me as a much better issue to leave to the states than abortion, the other hot button issue on which it is often proposed. If states had varying laws on gay marriage and other family law issues, as they currently do, people could make their decisions where to live based in part on a given state's rules on these issues if the issues are particularly important to them. To be sure, this approach would only work if a state's marriage or partnership rules were limited to that state and states that chose to recognize them. This raises some tricky constitutional issues, but my impression (subject to correction by those who are more expert in constitutional law that I am), is that any constitutional impediments are not insurmountable and that it's essentially what we have now.

This leads to the second thought. What if the new president proposed "minimum standards" legislation on the gay partnership and marriage issues?

Under this approach, which I borrow from the scholarly literature in corporate law, Congress would pass legislation establishing a minimum level of protections for gay couples (and perhaps others) for things like hospital visitations, inheritance and the like. Beyond this, states could make their own decisions whether to enact gay marriage, domestic partnership legislation, or neither. Minimum standards legislation would provide consistent rules for issues on which there appears to be substantial support, while allowing each state to resolve the most contested issues about marriage and the subsidization of non-marital relationships.


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Comments ( 5 )

I agree with C.S. Lewis in Mere Christianity that Christian marriage is something quite different than civil marriage - and therefore should be regarded differently under the law:

“My own view is that the churches should frankly recognise that the majority of the British People are not Christians, and, therefore, cannot be expected to live Christian lives. There ought to be two distinct types of marriage; one governed by the state with rules enforced by all citizens, the other governed by the Church with rules enforced by her by her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.”

Mere Christianity p. 86

It would vastly simplify this debate if we could say that people can make civil contracts between themselves that holds up in civil court - but spiritual marriage is defined by your religion.

I am with Mark Cole 110%. This is the perfect opportunity to decouple, if I may use that ironic term, religious and civil marriage.

Although I am aware that some of the opponents of gender-neutral marriage laws will claim otherwise, the basis of most opposition to gender-neutral definitions of marriage is religious. That should lead to consideration of the question, regardless of what side you are on, whether the constitution of California, or of the USA, should be amended for the primary purpose of enforcing a religiously based objection to certain kinds of marriage.

Moreover, not all religious bodies and communities are in agreement on this issue. Indeed, there is a lack of unity within many religious denominations and communities. For example, many Meetings of the Society of Friends (Quakers) have affirmatively adopted gender-neutral marriage practices (even in states where such marriages are not yet recognized by the civil law), whereas other Meetings are clearly not in agreement with that.

Thus, to use the civil law to enforce some persons' spiritual definition of marriage against others who do not agree and who may even have a different spiritual definition, seems to be an unusual use of the civil law to enforce one religious group's spiritual precepts on another. How is this different from a constitutional amendment that would have the effect of requiring Seventh Day Adventists to worship on Sunday?

It seems fantastical to suppose that how the law defines marriage (even if renamed "civil unions" or somesuch) could ever be decoupled from other understandings or conceptions, St. Lewis's views notwithstanding. Rightly or not, people take a good many cues from the law and if you change the legal definition of marriage you should be ready for it to be changed in the culture at large.

As to David's suggestion, it's intriguing, but correct me if I'm wrong in thinking that the recent CT decision striking down that state's civil union law was justified in part on the idea that CT had offered all the particularities of marriage without the actual title, undercutting the state's "rational purpose." I would think that a statutory guarantee of all the marriage-related rights (whatever they might be) would be a tempting target for the courts to say that there's no rational purpose in denying the label marriage to these recognized relationships that are marriage in-all-but-name.

That's not to say that the political debate has been winsome or edifying; quite not.

The idea of separation of the civil and religious marriage is complex. In many areas of the world a minister is not authorized to perform a marriage. There the existence of a so called civil marriage is required before the Church can perform a blessing. I said so called because if you look carefully there is only one marriage and it is when the couple makes their vows to one another. In sacramental churches where marriage is considered a sacrament the performers of the sacrament are the couple and not the priest.

I tend to disagree that we need any action to protect those who chose to live a homosexual lifestyle. The idea of hospital visitations is almost completely without merit. Except in a few hospitals run by various religions, a legal document can be drawn before the fact allowing for designation of anyone as “next of kin.” There may be limited government interest is changing the few places there might be a problem. Nevertheless, I caution against this, because such invasion by government is the same invasion that is trying to make Catholic hospitals perform abortion on demand and to force Catholic adoption agencies to allow for homosexuals to adopt.

It's all about getting rights, right?

A normal married couple is at least theoretically productive for the society because it breeds little citizens. An arduous task, one has to admit, they should be supported by the state.

Why give privileges to same-sex people who fancy to be in a relationship?

Adoption? Would you exchange your father for a female? Would you be happy if your mum was male? I would never punish a child with that.