It seems that as an NPR listener (but not supporter), I’m barraged on a regular basis with stories about same-sex couples and their plights as they seek one thing or another on a road to parity with traditional, non-same-sex couples. The coverage has gotten me to sit down and reason through the arguments for and against same-sex marriage. What I am NOT going to do here is to trot through the religious arguments, or even the “nature” arguments on the topic. Not relevant here is a discussion on the basis for homosexuality either, or its history in civilization. What is relevant is what I see as the coming legal response to the issue based on the US Constitution.
Disclaimer 1: I am not a Constitutional expert. Then again, I doubt that you are either if you are reading this.
Disclaimer 2: I do not support same-sex anything. But that’s not the point here. It is important for you to keep in mind though as you read on.
Same-Sex Marriage has to become the law of the land!
Federal courts must find in favor of plaintiffs that laws banning same-sex marriage are unconstitutional.
(Remember the disclaimers)
The very nature of this Republic and its Constitution necessitate such an outcome. Here’s why:
1. Freedom of Religion: The leading reason people who are opposed to same-sex marriage will give is that “God created marriage as an institution between one man and one woman”. The basis for this comes from Genesis (which has no mention of the recent mythological Lilith) in which God created Adam and Eve. Despite the numerous accounts of men having multiple wives—which didn’t mean God endorsed that, only that men did it—the Bible maintains a one man-one woman ratio as the normal pattern for marriage. Exceptions can be found under Jewish law for taking the widow of a family member as a wife, but this was a matter of social welfare within the society.
Clearly, this view on marriage is a Judeo-Christian view or more simply put, a religious view. For the courts to consider this position, an argument would have to be presented on religious grounds. A finding in favor of this argument is tantamount to Congress making “a law respecting an establishment of religion”. It would be an unconstitutional finding.
And more so, Jews and Christians do not want marriage defined for them by Muslims, Hindus, or for that matter, certain sects of Mormons. Marriage cannot be defined by a church or a religion and simultaneously be Constitutional.
2. Biology: A biological argument—that is, arguing that a species consists of male and female for the purpose of procreation—asserts that the only reason for marriage is for just that: Procreation. Yet there are many who marry, even heterosexual couples, who cannot have children. And there are those who do not want children. If procreation was the only reason for marriage, there would be a lot fewer marriages.
At the heart of this argument are three points:
a. God told Adam and Eve to multiply
b. The Catholic church taught that sex was only for procreation
c. God created the sexes and designed the male and female biology in such a way as to show us how the two are designed to be together and function as one. This cannot be replicated on a physical or spiritual level in same-sex couples.
Each point rests on a religious base, taking us back to the first argument about the Constitutional nature of bans on same—let’s call it what it is—homosexual marriage. (If we say “hetero”, we say “homo”. If we say “same”, we say “non-same”. Let’s stick to similar descriptors from here out!) Bans cannot be based on a religious argument and simultaneously be Constitutional.
3. Civil Precedence: Marriage in the United States has been a civil matter longer than anyone alive today can remember and I doubt that there is much available, if anything, that would show it to have ever been just a religious matter.
Marriages today are licensed by civil authorities. A clergyman who officiates over a wedding even says “by the power vested in me by the State…”. Without such power, that officiant has no authority to join anyone in matrimony, Holy or not. The couple as well must must present their proof of civil licensure to be married.
Face it: In the United States, our laws dictate that marriages begin as a civil matter and if divorce occurs, end as a civil matter. Indeed! Many marriages are entered into outside of any church or religious setting and church officials have no role in the divorce proceeding.
Conclusion: In a quick review of marriage and a layman’s view on the Constitution and the law, I would have to conclude that marriage in the United States is a civil matter, defined by laws that must not lean towards the establishment of any religion.
On the other hand, Holy Matrimony is that special institution created and endorsed by God, the Creator, and it cannot be replicated by homosexual couples no matter how many laws are written to give them civil rights. One must not confuse the authority of the so-called greatest nation on earth with the overwhelming authority of God!
Yet, it seems as though many in denial or rebellion against God’s authority seek approval and justification through man-made authorities. They will get what they seek. America is on a permissive path that will only widen over time.
Prediction: Once marriage is no longer defined as being between one man and one woman, the next minority seeking parity will come to the fore. It may be those seeking plural marriage, or maybe a group seeking some other variation. Let’s consider plurals for a moment. If marriage is not defined as being between one man and one woman, what is that definition? Who gets to decide? Is it one man, one man? One man, two men? One man, two women?
Someone will have to answer these questions and will not be able to lean on religion or religious opinions in doing so. That’s what has already gotten us same-sex marriage bans and we see those being knocked down.
It was unfathomable just 50 years ago that we’d be here, yet we are. So before you dismiss the “slippery slope” argument about a permissive view on the nature of marriage, we should consider how ridiculous this would have seemed had I made a prediction in 1963 that same-sex marriages would be legal in any state in 2013—fifty years hence.
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