Let's Have the State Get Out of the Marriage Business

Copyright 2009 - Stephanie Richer Photography

A federal appeals court Tuesday struck down California's ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.

I fully expected the 9th Circuit to do this.  But here is what I would like to see happen.

I would like the Supreme Court of the United States find that the State - and here by the State, I mean any state or federal government entity, and not just California - in defining what has historically and traditionally been a religious institution that is, marriage, has violated the First Amendment of the United States Constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Instead, the State may define a civil union, that would carry all of the associations of marriage: property rights, tax status, etc.  Couple of any ilk, gay or straight, would enter into this union at the local State agency. 

But it is not marriage.  Marriage is the under the purview of a religious institution, be it the Roman Catholic Church or the Temple of the Three-Faced Goddess or Reform Judaism.  The happy couple, if they wish their union to be a marriage, can then apply at the religious institution that supports their union and become married.

In short, the State gets out of the marriage business.

This is not a new idea.  Many countries recognize "civil" unions only, requiring couples to go through two ceremonies if they wish to have a church marriage.  This way, the benefits and obligations of "marriage" are open to all, but a marriage occurs within the tenets of a particular faith.

Why don't I like the 9th Circuit's ruling?  Let's look at the California Family Code section 400(a) provides:

Marriage may be solemnized by any of the following who is of the age of 18 years or older:

(a) A priest, minister, rabbi, or authorized person of any religious denomination.

This makes clergy, arguably, representatives of the State, in that they fulfill the State's requirement to solemnize a marriage.  The couple gets a marriage license, but it has no legal effect until their union is solemnized.

What can be done with the Prop 8 ruling?  I could see a test case being brought:  a gay couple goes to a local Catholic church.  "Father, we want to be married."  The priest tells them, "No, sorry, but I cannot do that."  And a lawsuit is brought against St. Whomever, and the Diocese of Wherever, alleging that Father is discriminating against them.  In fact, they may argue, all they are asking is for the good padre to solemnize their marriage as he has been deputized by California to do, and they don't even care if he will not bestow the Sacrament of Matrimony.

But let's consider Family Code section 400(c).  That provides that a marriage can be solmenized by "[a] judge or magistrate who has resigned from office."  Far enough.  However, what if the Honorable Retired Judge finds gay marriage to be contrary to his or her religious beliefs?  Do they get a conscience exemption?  Given the current status of that regarding the Obamacare mandate, I would not place much faith (no pun intended) in seeing that.  Perhaps now that retired judicial officer can be subject to a lawsuit by a gay couple, or even subject to disciplinary action, jeopardizing his or her pension.

Brrrr - did someone open a window in here?  I feel a chilling effect developing.

An appeal to the Supreme Court is promised - of course, SCOTUS wuld first need to grant a writ of certiorari to hear it, but I do not think they would ignore this issue.  I think I will see if I can find a group of like minds to join in an amicus curiae ("friend of the court") brief to SCOTUS.  And why not?  Like it or not, you are part of history - might as well participate. 

And for the sake of your religious freedom under the 1st Amendment.  Although not explicitly stated, I think this case has a tacit challenge to that. 

For a good read regarding the HHS mandates, look at David French's article, We Are All Catholics Now, in the National Review.