I ended up writing this for a post on a discussion forum, but I felt it articulates the basic issue with gay marriage and the rights therein.

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There are 2 facets of marriage in American society. One is the legal union recognized by the government. This union can be obtained by a man and a woman at a courthouse (or county registrar or whatever). A justice of the peace presides. You pay a fee, and that’s basically it. There’s no religious component. The justice will use whatever words you choose for the ceremony, and include the legal phrase “by the power vested in me by the State of California, blah blah blah”.

Now, many people choose to get married in a church, in some kind of religious ceremony. A clergyman who performs this ceremony must be approved by the State in order to have the legal power to marry people (which usually just means that he’s clergy of a recognized religion). Without that governmental authority, the ceremony is purely symbolic and has no legally binding power (i.e. the church may consider them married but the State does not).

When you get married, the clergyman performing the ceremony must submit a signed marriage license to the State of California within 10 days or the marriage is not legally binding. In the case of a non-authorized clergy, the couple must be united by a justice of the peace or other recognized authority within 10 days.

The word “marriage” is originally a Christian term, I believe. It is used in government documentation for the sake of convenience. It might be less confusing to use a term like “legal union” in government contexts, in order to separate the two ceremonies in people’s minds.

Gays are entitled to a legal union, recognized by the government (although are not currently granted that right). The Constitution’s equal protection guarantee should make this an open-and-shut issue.

Gays are not, however, entitled to a “marriage”, where that term refers to a status recognized by a church (any church). The simple reason is that the church’s recognition of a married couple is entirely separate from the government’s recognition of same. It would not be just or appropriate to force a religion to change its own doctrine.

The biggest mistake gay activists are making with this issue is not drawing the distinction between religious “marriage” and government “legal union”. If they could drive a wedge into that, they would have a much more solid basis for pursuing their Constitutionally-protected right to be recognized by the state as a married couple.

12 Responses to “The Core Issue of Gay Marriage”
  1. Kyle Haight says:

    I’ve got one minor anecdote and one serious point to make in response to this. The anecdote is from my cousin’s wedding, in which the official who married them showed up at the house again an hour after the ceremony because he’d forgotten to take the legal paperwork with him to file.

    The serious point is that the equal protection clause does not make legal unions an open-and-shut case. Siblings, for example, are not entitled to a legal union. That doesn’t violate the equal protection clause.

    The equal protection clause says that the government can only treat people differently if the differences are relevant to the purpose of the law. It isn’t a violation of equal protection to deny welfare benefits to the wealthy, because the purpose of the welfare laws is to provide economic support to the poor. It would be a violation of equal protection to give welfare to a poor white man but not a poor black man, because the difference between them is not relevant to the purpose of the welfare law.

    What this means in the gay marriage case is that you cannot determine whether denying legal unions to same-sex couples violates the equal protection clause unless you have first specified the purpose of legal unions. The issue thus turns on the question of what marriage is for — and that is precisely what is being disputed. If the purpose of marriage doesn’t depend on the gender of the participants, then the equal protection argument has merit. But if the purpose of marriage is gender-dependent, then same-sex couples are in a different class than het couples with respect to marriage law, and the equal protection clause permits treating relevantly different classes differently.

  2. Oscar Cwajbaum says:

    This distinction is not being made by the self-proclaimed “defenders” of marriage. Witness the recent Justice Sunday event where they decried judges who don’t want to impose Christian laws on us. They’re the ones who claim any differentiation between the legal and the religious is (literally) evil.

  3. Al says:

    The distinction is, however, made by ‘the people’. If you listen very closely to both sides, they both have polls that show overwhelming support – and the difference is entirely in terminology. (And very careful wording by their spokespeople)

    That is: There is strong support for a ‘union’ of some sort that provides the _identical_ protection under the law to any two people (that are not already in a union, deceased, under the age ___, biologically incestual, or otherwise prohibited.) This means insurance, inheritance, divorce, next-of-kin, etc.

    There is also very strong support that it should be called ‘marriage’ only for the dictionary definition ‘one man + one woman’.

    Part of that feeling is simply resentment over ‘political correctness’ rewriting the dictionary. If you’re willing to rewrite a term or two you can pull the Constitution through a tesseract. ‘shall make no law’… ok, how about an administrative ruling, ‘infringed’, ‘speedy and public’ ‘cruel and unusual’.

    Hmm. Well, any _further_ through a tesseract.

  4. Kyle Haight says:

    My point is a very specific one: the equal protection argument only seems forceful in this case because it is assuming a specific position on the issue being disputed. As such, it is not a useful argument to deploy, because on its own terms it is unpersuasive except to people who already agree with you. It is not, contrary to my wife’s claim, an open-and-shut issue.

    I am perfectly aware that there are people on the right who don’t support a difference between the legal and religious components of marriage. But there are a lot of people uncomfortable with “gay marriage” who aren’t in that category, as the polling data referenced by Al indicates.

  5. Anne Haight says:

    If the purpose of marriage doesn’t depend on the gender of the participants, then the equal protection argument has merit. But if the purpose of marriage is gender-dependent, then same-sex couples are in a different class than het couples with respect to marriage law, and the equal protection clause permits treating relevantly different classes differently.

    Ok, so you would assert that the purpose of marriage makes the gender of the participants relevant? And I don’t think “reproduction and a stable nuclear family” is a legitimate argument against gay marriage, because they can adopt children and have a nuclear family like a male-female couple. Also, a lot of male-female couples don’t do either and that doesn’t seem to bother anyone.

  6. Mithras says:

    A.H.-
    Gays are not, however, entitled to a “marriage”, where that term refers to a status recognized by a church (any church).

    Red herring. No one is “entitled” to a relgious ceremony, and gay and lesbian couples are not demanding one. No one is “entitled” to any specific officiant.

    A marriage may be solemnized over by a religious or a non-religious officiant. See, Family Code sec. 400-402. Since many would perform marriages for same-sex couples if they were legally allowed to be married, the issue is only whether the civil law provides the right or not. Religion is irrelevant.

    K.H.-
    The equal protection clause says that the government can only treat people differently if the differences are relevant to the purpose of the law. …

    As A.H. indicates, your equal protection analysis is flawed. Gay couples can adopt, and lesbian couples can have children through artificial means, just as some heterosexual couples do. If the purpose of the law is to protect those children, then shouldn’t the law include those couples, too? Also, opposite-sex couples who never intend to have children or who cannot have children – either because the woman is post-childbearing or one of them is infertile, about 8% of the population – can mary freely. Opposite-sex couples who have children may divorce freely. If you’re right about the purpose of the law, it’s a law that doesn’t take its own purpose very seriously.

    Also, the statement that a legal distinction must only be “relevant to the purpose of the law” is not necessarily correct. There are various levels of equal protection scrutiny, the lowest of which is that the law has a rational relationship to a legitimate state interest. The highest level of scrutiny is that the law is the least restrictive means for accomplishing the end and there are no alternative means for doing so. You assert that the rational basis test is the appropriate one, without saying why. And in any event, it’s not even clear that barring gays from marriage is rationally related to the promotion of a policy of providing good environments for raising kids, since as I said, gays can have (and do have) kids, too.

    But there are a lot of people uncomfortable with “gay marriage” who aren’t in that category….

    There are a lot of people who are uncomfortable with mixed-race marriage who don’t think of themselves as racists, too. Who cares?

  7. Al says:

    “There are a lot of people who are uncomfortable with mixed-race marriage who don’t think of themselves as racists, too. Who cares?”

    Translation:
    “Every single person that disagrees with this point of view is, by definition, a bigot and thus irrelevant to the public good.”

  8. Mithras says:

    “Every single person that disagrees with this point of view is, by definition, a bigot and thus irrelevant to the public good.”

    Ah, no. But, first, the fact that people don’t believe they’re evil is not conclusive evidence that it’s true. Kim Jong Il thinks of himself as a swell guy, I am sure. And second, white people of good will in the 50s and 60s didn’t think the black folks should have been kicking up such a ruckus. That didn’t make those white folks evil, just unconcerned with other people’s liberty. There’s a lot of that going around.

  9. Luke says:

    A reason many Americans are uncomfortable with “gay marriage” is simply that many Americans are still uncomfortable with homosexuality. This is not an accusation of bigotry; it’s the objective statement of an observation.

    Now, one side of the coin seems to suggest accusing this presumably large (see state consitutional referenda on gay marriage in several states over the last year) percentage of the population of bigotry. This seems plausible, given a two points: One, many whites were (and, to some extent, still are) “uncomfortable” with non-whites; two, the assumption that homosexuality is innate (this matters, as race is innate). Thus, if homosexuality is innate, like race, then persons who are anti-homosexual, like persons who are anti-[a specific ]race, are bigots. If this is the case, then gay marriage should be allowed, just as being non-white is allowed. Another possible scenario in which gay marriage should be allowed is the one in which homosexuality is not innate, but is not a choice that the government has any right to condemn. No significant debates in the recent past have revolved around these two issues; the surface-level issue of gay marriage has been the hot topic.

    The other side of the coin is that perhaps there is some legitimacy in the reaction that many Americans have to homosexuality. For those not in that category, consider this: There has been a movement in the field of human sexuality to make bestiality a sexual orientation. Through at least one doctoral thesis, it has been shown that the animals are entirely consenting and are not harmed in any way (generally, the animal is the partner on top). Persons inclined to bestiality have the same feelings of love and commitment to their partners that are exhibited in human-human relationships.
    Many persons who have no issue with homosexuality feel some level of revulsion upon considering this. This is approximately the same response that many Americans have to homosexuality.
    I don’t pretend to know why either of those is the case, but, there they are. They are too substantial to dismiss lightly, as we’re not talking about extremists of any kind.

  10. Mithras says:

    People feel all kinds of negative emotions about other people’s sexual practices. It seems to be human nature. Bringing bestiality into it is another red herring, designed to make the discomfort we all feel seem manifestly reasonable by equating it with something that is very different.

  11. Anonymous says:

    It is different, just as same-sex relationships are much different than opposite-sex relationships. A person who is a supporter of beastiatity might argue that it’s just as normal and natural to be in love with an animal as it is for a woman to love another woman. After all, no one is getting hurt, animals are capable of love, and what makes it anyone’s place to judge whether that is right or wrong anymore than it’s their place to judge whether homosexuality is right or wrong?

  12. Luke says:

    “Bringing bestiality into it is another red herring, designed to make the discomfort we all feel seem manifestly reasonable by equating it with something that is very different.”

    I disagree. I was approaching this discussion for the sake of arriving at truth, rather than for the sake of proving some point that I have. The point of introducing bestiality into “it” (presumably this specific discussion, though the antecedent is unclear) was not to justify the discomfort anyone feels, but rather to help those who don’t feel that discomfort understand where those who do are coming from. Perhaps that discomfort is wrong; perhaps not–but that wasn’t the point. The point was, it exists, and that means something. I don’t know what it means, and I was hoping that at least one person, through shared emotion with a presumed enemy, would rise to approaching the entire issue less in a confrontational “I must prove my point” manner and more in an honest “I wonder what the truth is” manner. I am just looking for unpoliticized discussion of a seemingly important issue.

    Just as another note for you, Mithras, relating to an earlier post of yours on this discussion: It’s generally considered bad practice to call people you disagree with “evil”. It’s also in poor taste to compare a large segment of the American population to a dictator who starves his people to death, simply because your perception of them differs from their own. It’s the same kind of terrible move as comparing anyone to Hitler or calling such persons Nazis…rude, disrespectful, and very gauche.

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