Democratic Underground


November 18, 2004
By Michael Shannon

Marriage, and the legal definition thereof, is probably the most heated topic in America today, and it arguably won the election for George W. Bush.

Let's face it. The Bible, and those who profess a belief in it, are never going to see eye to eye on this issue with those of us who believe that everyone, gay or straight, has the same rights when it comes to their partners - rights like hospital visitation, next of kin, child custody, joint tax filing, etc.

However, the reason the two sides of this issue do not agree is not a basic belief that gays and lesbians should be denied these rights; the reason is the word that's used for this binding of two people: marriage.

The State Constitutional Amendments passed by 11 states this past election are destined to be struck down, as is the Defense of Marriage Act. The Supreme Court ruled in 1996 (Romer v. Evans, 116 S.Ct 1620) that homosexuals are protected by the equal protection clause of the constitution, and any law that changes the definition of marriage to exclude what would be a married couple in another state violates the full faith and credit clause.

Quite simply, under current interpretation of the Constitution, there is no way to prohibit gay marriage; it would require a Constitutional Amendment. That's what the evangelical religious political agenda wants, but as of the next Congress, the GOP still does not have the 2/3rds majority in both houses it would need to pass an Amendment, nor the 37 states to ratify it.

That could change, if the plan currently grinding on works out as the religious wing of the GOP hopes. Anyone can look at the facts, history, and campaign speeches and work all this out for themselves.

What I propose is a solution. A simple solution that actually appeals to right-wing constituents on the basis of "less government."

Here goes: any defense of marriage as "a man and a woman" has, as its basis, that marriage is a sacred institution. As the self-proclaimed defenders of marriage mean sacred, they mean "made or declared holy," ie. specified or set apart for religious purposes.

Cede the point that marriage is sacred. It's a little sacrifice to be made for the good of all. Admit to anyone who wants you to that marriage is the holiest thing ever.

Why? Simple.

The First Amendment to the Constitution reads, "Congress shall make no law respecting an establishment of religion."

If marriage is holy, then any law regarding the definition of marriage - no matter what definition - is a law respecting (regulating) an establishment (marriage is an institution) of religion (marriage is sacred, Q.E.D).

So, if marriage is religious, that means the Federal (and State) governments have absolutely no business handing out Marriage Licenses. All they can hand out are Civil Union licenses, pieces of paper that certify two people have merged their civil and financial lives into one.

Take the poll numbers, and you'll quickly see that while a majority of Americans are against gay marriage (sorry, it's true), there's a 30ish percent there that is against marriage but for civil unions.

Make it about civil unions, and the majority switches to the other side. And this should appeal to Republicans and Libertarians too, on the basis of smaller, less intrusive government.

Now, I know some people out there are right now saying that they don't want civil unions, they want to be married, just like everyone else has a right to be. I'm going to tell you that you pick your fights, and you set your battlegrounds as ones you can win. Moving the religion out of government (as I propose, abolishing legal marriage in favor of generic civil unions) will turn this into a fight that can be won.

If you want marriage, then first, win the governmental fight, then, once you and your partner have a license that says you are fit to be joined in the government's eyes, start talking to your pastor. Because that's where religion (and therefore marriage) belongs. In Church. Not in the Constitution.


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