A can of worms that never should have been

It's been said that most of the problems government solves it originally created itself.  I think this is the case on the "gay marriage issue" (quotes used because I although I acknowledge that it is an issue, I don't think it needed to be).  I don't talk about political / religious issues much on this blog (or anywhere else for that matter) – this seems like an easy issue to get started with 😉

Like many of the issues that fill up the modern day news cycle, most reports are focusing on the easy / up front talking points or sound bites: "Obama backs gay marriage" or "Romney reaffirms opposition to gay marriage" and missing the important question: why should it matter at all what the state has to say about marriage at all? 

Since before the founding of the US (and its legal system) the word marriage has been associated with religion, and as we are all taught (or at least used to be) in grade school, one basic tenet of the American form of government is separation of church and state.  From my basic research (OK, a few quick Google searches) it seems that the concept of marriage hasn't always been so closely tied with religion, in fact it seems to have started as more a biological / social construct to give women some security in exchange for "access" and to reduce competition amongst men (presumably after all the desirable women had been married off).  Even the earliest religions, however, co-opted the concept of marriage and made it one of their rituals.  Despite its origins from social or biological sources, marriage had been deeply entrenched in the religious traditions of all those present in what was to become the United States of America in 1776 (and still in the more important date of 1787, which has more to do with the "rules" we are supposed to be living by as Americans). 

So if the precedent was well set the marriage was a religious institution and we are supposed to have separation of church and state, why does it matter now what politicians and bureaucrats think about marriage at all?  Because they violated the principle of separation centuries ago with the creation of the marriage license. As I said in the opening, the state created the problem that the state are now trying to solve.

The concept of the marriage license pre-dates the formation of the Unites States of America by nearly 500 years.  The Church in England (not the state) issued marriage licenses as a way to bypass the previous requirement (that was also mandated by the Church – not the state)  that there be a public waiting period after an announcement of intent to wed.  This allowed for objections to be heard.  The license was intended to be a way for the couple to swear that there were no reasons they should not be married and transfer the obligation of discovery of any issues from the church to the couple.  So far, no problems.

In the early days of the USA, things were largely the same: marriage licenses were issued by the Church.  It was around the time of the civil war (or the war between the states for my southern readers) that the state broke the rules and started messing with religion.  And how did they justify breaking (their own) law?  "General welfare" of course.  From Wikipedia (emphasis added by me):

The requirement for marriage licenses in the U.S. has been justified on the basis that the state has an overriding right, on behalf of all citizens and in the interests of the larger social welfare, to protect them from disease or improper/illegal marriages; to keep accurate state records; or even to ensure that marriage partners have had adequate time to think carefully before marrying (CSK = the nanny state existed in Lincoln's time too).

With the "federalization" of the marriage license the stage was set for the opinion of politicians to matter about marriage.  Subsequent decades saw the creation of books of case law about how marriages are created and dissolved, the instruction of a system of family courts, and the granting of state and corporate benefits based on the legal contractual relationship that was created when people got married under the construct of a state granted marriage license.  The concept of marriage has grown from a couple declaring their intentions before their God and community (whatever form of God that may be – Muslim, Christian, Jewish, Cherokee, Buddhist, etc) to something that includes all of that, but also has massive legal implications.

What follow's is Chris Kelley's simple prescription for solving the marriage "issue" (gay or otherwise): in the immortal words of Dexter Holland "you gotta' keep 'em separated"

Step 1: The state should hand back over all rights to the term marriage to religion.  We should redefine marriage to be just the vows that are taken before God and the community.  Remove ALL legal trappings from the act/ceremony/institution of marriage.  The state doesn't issue baptism, confirmation or bar mitzvah licenses – why should it be able to issue marriage licenses?  Let's leave marriage to the spiritual and the religious and get the state out of it completely.  The biggest benefit of this step would be that it would give complete freedom to each religion to choose and promote its own doctrine.  Even more importantly, the people would have the freedom to choose the religion that matched their beliefs or work to change the doctrine of the religion they choose if it is conflict with their beliefs.

Step 2: Create something else for what is currently the legal side of marriage.  The term 'civil union" gets bandied about – not sure if that's the right name or not, but lets use it since I don't have a better suggestion off the top of my head.  Civil unions should be monitored, regulated and even licensed by the state.  They are just another form of contract between two parties and the state has the right to regulate those to ensure proper enforcement of conditions and availability of remediation and penalties should conditions be violated.  The state has no place in dictating who can enter into one of these contracts other than ensuring that both parties are legally able to represent themselves, i.e. that they aren't too young or otherwise mentally undeveloped to understand the terms of the contract.  All of the downstream aspects currently associated with marriage should be the sole domain of the civil union: rights to property in divorce, access to government or corporate benefits while living and access to death benefits / inheritance when one of the parties in the contract passes on.

Step 3: Allow the religious marriage and the civil union to coexist, in parallel but independently with all couples having the ability to choose one, the other, both or neither.  That's right: a man and a woman could decide that all they want is the legal aspects and enter into a civil union – skipping the church, the dress, the flowers, the rings.  Or they could decide that all that they need is a promise before God so they stand in their back yard, say some vows to each other and presto-changeo they are married (they could do the whole church, dress and flowers things too – it makes for great pictures when you get old).  Or they could do both.  Or they could do neither. 

The same options would be available for couples of all configurations.  A man and a man, or a woman and a woman would be able to do all the same things.  If  homosexual couple wanted the contract in place, the state would facilitate that and they could get all of the benefits (and downsides) of the legal relationship.  If they want to be married, they too could exchange some vows in their backyard in front of their God, just like the man/woman couple in the previous examples.  If they are members of a church that doesn't discriminate, they can can do the whole dress, flowers and church thing too. And if they're not they have the freedom to find one that is OR to take the difficult but potentially rewarding path of working to change the overall doctrine of their chosen religion. 

When the two aspects of marriage as it currently exists are separated, couples of all types can choose what makes sense for them and the state can do its job (protecting people's liberty and freedom to choose by creating and enforcing the laws that do so) and the Church can do its job (providing people a way to get closer to God).  If you look closely at the can of worms that President Obama and Governor Romney are said to be opening over the "gay marriage issue", you will see clearly stamped on the back: manufactured by the US Government.  Put the can back on the shelf, let the state do what it was designed to do, let the Church do what it was designed to do.  And let's focus on some real, rather than manufactured problems.