Same-sex marriage and the separation of church and state

Prohomosexual Marriage From the Viewpoint of Legal Separation of Church and State

Annotated Bibliography

(1) Bidstrup, Scott (nd) Gay Marriage: The Arguments and the Motives. Online available at: http://www.bidstrup.com/marriage.htm

The work of Bidstrup (nd) states: "Ask just about anyone. They'll all tell you they're in favor of equal rights for homosexuals. Just name the situation, and ask. They'll all say, yes, gays should have the same rights in housing, jobs, public accommodations, and should have equal access to government benefits, equal protection of the law, etcetera, etcetera. Then you get to gay marriage. And that's when all this talk of equality stops dead cold." (nd)

(2) Turley, Jonathan (2006) How to End the Same-Sex Marriage Debate. 2 April 2006. USA Today. Online available at: http://www.usatoday.com/news/opinion/editorials/2006-04-02-faith-edit_x.htm

The work of Jonathan Turley (2006) entitled: "How to End the Same-sex Marriage Debate" states that since 2004 nearly "…two dozen states have passed constitutional amendments banning same-sex marriage, and additional proposed amendments are planned for this year in Congress and various states. At the same time, gay rights advocates are pursuing their own legislative efforts and numerous court challenges to Before we enter yet another election season of spasmodic referendums and debates over same-sex marriage, one question is worth considering: What if we could end this controversy once and for all?" The "real problem" according to Turley is "…is not the qualifier but the noun" in regards to marriage and same-sex marriage." (2006)

(3) Shyder R. Claire (2006) Gay Marriage and Democracy: Equality for All. Rowman & Littlefield 2006.

The work of Snyder (2006) entitled; "Gay Marriage and Democracy: Equality for All explores the issue of homosexual marriage and specifically in regards in to the connection that same sex marriage has to democracy and whether there is a separation between religion and the state that should be enforced.

(4) Marus, Robert (2003) Is Gay Marriage Debate a Church-State Issue? Christian Century. 6 Sept. 2003. Online available at: http://findarticles.com/p/articles/mi_m1058/is_18_120/ai_107760341/

The work of Marus (2003) entitled: "Is Gay Marriage Debate a Church-State Issue?" states that recent court developments "…in the U.S. And Canada, as well as affirmation of an openly gay bishop and same-gender rites in the Episcopal Church, have made the prospect of gay marriages seem possible in the not-too distant future. In response, new laws have been urged -- even a constitutional amendment -- that would ban extending marriage benefits to homosexual couples."

(6) Rupli, Robin (2004) Proponents of Gay Marriage in U.S. Compare Issue to Civil Rights Movement of the 1960s. National Black Justice Coalition. 19 Mar 2004. Online available at: http://www.nbjcoalition.org/news/001029.html

The National Black Justice Coalition work entitled: "Proponents of Gay Marriage in U.S. Compare Issue to Civil Rights Movement of the 1960s" states that the gay marriage issue "…issue continues to stir controversy in the weeks since San Francisco Mayor Gavin Newsom began issuing marriage licenses to same-sex couples. Gay couples say same-sex marriage is, first and foremost, a civil rights issue in their effort to enjoy all the legal protections traditional marriage provides. Opponents argue that gay marriage undermines a religious institution and threatens the traditional "nuclear" family. This has led to an ongoing debate and comparisons being made between the civil rights movement of the 1960s and today's gay rights movement."

(7) SF Gay Marriage Proponents Celebrate Iowa Ruling (2009) cbs5 3 April 2009. Online available at: http://cbs5.com/local/iowa.gay.marriage.2.975442.html

This April 3, 2009 report states "…A decision by the Iowa Supreme Court Friday to strike a ban on gay marriage from the state's constitution has same-sex marriage supporters celebrating in San Francisco and hoping for a similar result in a pending California case. Iowa's high court unanimously decided that a state statute limiting civil marriage to being between a man and a woman violates the equal protection clause of the Iowa Constitution."

(8) Harold, James (2003) Separation of Church and State: Let Religion Define Matrimony. San Francisco Chronicle 6 Aug 2003.

Harold (2003) holds that gay marriage and even heterosexual marriage should not be the domain of the government but instead should be between citizens and their religious organizations.

PROHOMOSEXUAL MARRIAGE FROM THE VIEWPOINT OF LEGAL SEPARATION OF CHURCH AND STATE

Objective

The objective of this work in writing is to state support for same-sex marriage from the viewpoint of legal separation of church and the state. Therefore, this work intends to examine both sides of the argument and then to analyze the findings of each viewpoint ultimately deciding in support of same-sex marriage.

Introduction

In a April 3, 2009 report entitled: "SF Gay Marriage Proponents Celebrate Iowa Ruling " it is stated that an Iowa Supreme Court decision to "…strike a ban on gay marriage from the state's constitution has same-sex marriage supporters celebrating in San Francisco and hoping for a similar result in a pending California case. Iowa's high court unanimously decided that a state statute limiting civil marriage to being between a man and a woman violates the equal protection clause of the Iowa Constitution."

The basis for the courts decision is stated by the Supreme Court in their opinion as the fact the Legislature "…has excluded historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification." (CBS, 2009) However, others hold that there is a constitutionally sufficient justification as to why marriage should not be defined within the legal framework and that this constitutionally sufficient justification is none other than 'separation of Church and the State.

II. A Battle that is Centuries Old

The real battle according to Turley (2006) is one that "began centuries ago, when the government was aligned with a particular faith in a struggle for sectarian dominance. In England in the 18th century, the Church of England was given exclusive control over legitimate marriages. Thus, unless you were married by the Church, your marriage was illegitimate -- and so were any children that were produced in that marriage. Even when marriage "reform" was legislated in the Declaration of Rights in 1776, the government still limited its recognition of marriages to couples married by Anglican ministers. In colonies such as Virginia, the government continued this preference for Anglican marriages (requiring special licenses for ministers of other religions). This parochial use of marriage recognition continues in many countries. Indeed, courts in Israel recognize only Jewish marriages performed in Orthodox Jewish ceremonies. In the U.S.A., most states make it a crime to marry couples without government licenses, making even purely religious "marriages" a potential crime." (Turley, 2006)

III. Questioning Whether Same-Sex Marriage is a Church-State Issue

The work of Marus (2003) entitled: "Is Gay Marriage Debate a Church-State Issue?" states that socially conservative politicians have "at time employed religious terms and rationale in urging government protection of heterosexual -- only marriages." It is the opinion of the director of the Center for Marriage and Family Studies at the Washington-based FRC, that defining marriage "as between a man and a woman is not a religious perspective, but rather an anthropological one." Stated is that "…legally privileging heterosexual marriage over homosexual unions is no more of a First Amendment problem than banning bigamy. If anything, imposing monogamy would be more likely to be considered a religious viewpoint, because there are other cultural and religious precedents for polygamy…but there is no religion or culture that has ever treated same-sex relationships." (Marus, 2003)

The work of Turley (2006) entitled: "How to End the Same-sex Marriage Debate" states: "Since 2004, almost two dozen states have passed constitutional amendments banning same-sex marriage, and additional proposed amendments are planned for this year in Congress and various states. At the same time, gay rights advocates are pursuing their own legislative efforts and numerous court challenges to establish constitutional protections for the right of same-sex couples to marry. The real problem with same-sex marriage is not the qualifier but the noun."

The work of Snyder entitled: "Gay Marriage and Democracy: Equality for All" states that the understanding of what is viewed as discrimination has evolved over time." (2006) This may be true since the founding of the United States resulted in laws that treated men and women unequally and which denied women the right to vote and resulted in the identity of a woman legally to essentially become "invisible upon marriage" as well as "subjecting married women to the authority of their husbands in a variety of ways…" (Snyder, 2006) There are stated to have been few "visionaries" who saw the inequality as being inherently against democratic principles. However, visionaries in today's debate surrounding the issue of same-sex marriage are in reality those who see same-sex marriage as a hindrance and an affront to the principles of democracy and this is due to the principle of the separation of the church and the state.

Turley (2006) states as a solution: "Religious advocates believe that marriage is a term loaded with moral and religious meaning. Gay advocates want to marry for much the same reason: as a social recognition of their equivalent moral standing. It might be the only political war fought over the proprietary use of a single noun. There is a simple solution: Stop using the word "marriage" in government licensing laws in favor of the more relevant term "civil union."

Turley states "if the role of government in maintaining 'legitimate' forms of marriage doesn't make you uncomfortable, it should." (2006) In other areas and in fact in almost all other areas "…the government steadfastly avoids this type of religious squabble, separating governmental functions from religious faiths. Marriage, however, has always been a conspicuous door placed in the wall of the separation between church and state. The government's distinction between legitimate and illegitimate marriages takes sides in a controversy that has raged since the formation of the first religions. Many religious groups, which include tens of thousands of Americans, believe in plural marriage or polygamy as a human right and divinely ordained." (Turley, 2006)

In fact, according to Turley (2006) it is the "reason" that such value is placed on marriage license by advocates of marriage that there should be an expunging of the use of the word marriage in public and legal documents -- and that is the fact that the word marriage "conveys a religious or moral meaning." (Turley, 2006) However, it is the agreement that exists within the frameworks of the marriage and "not…its inherent religious meaning…that compels the registry of marriages by the government. Once married, the legal rights and obligations of the couple change in areas ranging from taxes to inheritance to personal injury to testimonial privileges." (Turley, 2006)

Turley holds that the role of the government in its "policing…legitimate marriages also produces curious contradictions. While the government criminalizes the marriage of same-sex couples without official licenses (denied to them as a matter of policy) it does not police religious practices governing divorces." (Turley, 2006)

Turley holds that the moral validity of a marriage should be the realm of the religious organization while the civic validity of a marriage should be the realm of the government. Turley suggests "For state purposes, couples would simply sign a civil union agreement that confirms their legal obligations to each other and any progeny. Whether they are married in religious ceremonies would be left entirely to them and their faith. The government's interest and role would be confined to enforcing the civil contract, as it would any other civil agreement. Consenting adults should be able to assume the obligations of a civil union regardless of how their neighbors view their morality. As in other areas, adults should be able to follow the dictates of their own faith so long as they do not endanger or harm others, particularly minors."

The principles of religious involved should be the business of only the citizens and their respective faith and the government should only address the aspect of marriage "that concerns its insular needs: confirming the legal obligations of consenting adults. As for our politicians, there are levees to be rebuilt, corruption to end and wars to win. Of course, this solution would deprive both sides of the debate of a controversy that has been a political and financial windfall. Nonetheless, the public certification of the moral relationships is not the call of government; it is the call of the faithful. It is time we move beyond moral licensing by the government and return marriage to its proper realm: in the churches, temples, mosques, and the hearts of every citizen." (Turley, 2006)

Turley's view is shared and specifically stated in the work of Harold (2003) in the work entitled: "Separation of Church and State: Let Religion Define Matrimony" it is stated "Marriage is at once economic, religious and political. It is a complex conflation of two individuals' property and debts into one; a confirmation of faith (in whatever religion) and a spiritual union; and a legal designation that confers an enormous variety of rights and responsibilities, from citizenship to immunity from testifying against one's spouse. Or it may be less than all this -- many marriages are civil, for example, and sometimes economic unions are limited by prenuptial arrangements." (Harold, 2003)

Harold (2003) holds that "as long as marriage retains its importance as a civil economic and political institution, to do so would be to perpetuate great injustice." Yet to grant gays the right to marriage brings with it the necessity of "carefully trying to disentangle the civil aspects from the religious." Instead, Harold (2003) agrees with Turley and states "Rather than trying to clean the religion out of marriage so as to make it suitable for state business, the state should wash its hands of marriage altogether. Governments should not grant marriage licenses, or otherwise keep record of their citizens' private doings. The state's proper interest in any two people's choice to make a life together is quite limited. States should grant civil union licenses to adults, gay or straight, who request them, in order to protect both members if the union dissolves, and in order to facilitate other legal procedures, such as inheritance and citizenship, that are already regulated by the state." (Harold, 2003)

Summary & Conclusion

The issue of marriage is one that should be between citizens and their religious organization and should be an issue that the state does not enter into except to issue licenses. It would be very easy and would serve to effectively end this debate to begin initiation of certificates of legal unions which did not have the gender of either spouse as a basis for that certificate. This would allow religious organization to regulate their members while allowing the government to maintain its census data successfully.