What is marriage anyway?

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To listen to the rhetoric surrounding extending marriage rights to same sex couples, one would think that the pattern retold of Noah's Ark was the pattern for all human societies. In other words, that "marriage" has always been the recognized union between one man and one woman. This is reinforced in the transcript of Bush's announcement that he will Back the Amendment Banning Gay Marriage, Wa. Post, 2/24/04.

The union of a man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.

The reality is that many different forms and types of "marriage" have existed both historically and cross-culturally. Even in the US, the Mormons fought to protect polygamy. There is not, and never has been, one universal definition of "marriage." To talk as if there is, is to promote a pure mythology. Even same-sex couples have been able to form families in some cultures.

There are currently three pieces of federal legislation pending on this issue. Two of them "defend" marriage by specifying the one man one woman provision (H. R. 3313 and S. RES. 275), and one to take the feds out of the fray (H. R. 2677). (See end of article for full text of these measures.) I heard on the news last night that another piece of proposed legislation was being filed to directly ban "gay" marriage. That one isn't up on the Thomas Legislative Site yet.

I'll apologize up front to those who believe differently, but religious arguments have no place in determining civil marriage legislation. We live in a nation that purportedly has a separation of church and state. Those getting married (legally) must give a civil marriage license. They may additionally have a religious ceremony of their choice. If they have only the religious ceremony they are not legally married. This is made easier to overlook as most clerics who perform weddings are also Justices of the Peace - thereby performing the civil and religious functions at the same time.

I would recommend legislation that clearly makes this distinction. Namely, that the civil contract be identified as just that. The various religious institutions can duke it out on whether to allow religious recognition of unions or not. Likewise, the states need to recognize the civil unions (heterosexual or homosexual) of other states or we are right back where we were with the unconstitutional anti-miscegentation legislation that was thrown out with the Loving case. Also, those who have only received a religious wedding are not legally married and those "marriages" are not recognized in any state as being legal.

This whole issue really ticks me off for a variety of reasons. At the top of the list is that it is clearly an effort to distract the public's attention from other critical issues. The timing is too good given the heat that the Bush administration has been under lately, and given that this is an election year. Same sex marriages, heck even homosexuality, is always prime fodder to get emotions and rhetoric flowing, and that is clear from all they coverage of rant (presidential and otherwise).

However, this is not a non-issue for gays and lesbians and their families. The protections offered heterosexuals in marriage are withheld from same-sex couples. These protections are not insignificant, and cover everything from medical rights, to custody rights, to inheritance rights. The "option" of civil unions for same-sex couples will not afford those protections unless all of those protections are also legally extended to "civil unions." If we are going to deal with this issue now, let's at least deal with it in a way does not increase discrimination. Let's deal with it in a way that clearly removes it from the religious environment.

Proposed Legislation
H. R. 3313 - Marriage Protection Act of 2003

`Sec. 1632. Limitation on jurisdiction

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1.'.

(b) AMENDMENT TO TABLE OF SECTIONS- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:

`1632. Limitation on jurisdiction.'.

S. RES. 275 - To affirm the Defense of Marriage Act.

To affirm the Defense of Marriage Act.

Whereas, marriage is a fundamental social institution that has been tested and reaffirmed over thousands of years;

Whereas, historically marriage has been reflected in our law and the law of all jurisdictions in the United States as the union of a man and a woman, and the everyday meaning of marriage and the legal meaning of marriage has always been defined as the legal union of a man and a woman as husband and wife;

Whereas, families consisting of the legal union of one man and one woman for the purpose of bearing and raising children remains the basic unit of our civil society;

Whereas, in Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts ruled 4 to 3 that the Constitution of the State of Massachusetts prohibits the denial of the issuance of marriage licenses to same-sex couples;

Whereas, the power to regulate marriage lies with the legislature and not with the judiciary and the Constitution of the State Massachusetts specifically states that the judiciary `shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men'; and

Whereas, in 1996, Congress overwhelmingly passed, and President Bill Clinton signed, the Defense of Marriage Act under which Congress exercised its rights under the effects clause of section 1 of Article IV of the United States Constitution: Now, therefore, be it

Resolved, That it is the Sense of the Senate--

(1) Congress should take whatever steps necessary to affirm the fact that marriage in the United States shall consist only of the union of one man and one woman;

(2)(A) same-sex marriage is not a right, fundamental or otherwise, recognized in this country; and

(B) neither the United States Constitution nor any Federal law shall be construed to require that marital status or legal incidents thereof be conferred upon unmarried couples or groups; and

(3) the Defense of Marriage Act is a proper and constitutional exercise of Congress's powers under the effects clause of section 1 of Article IV and that no State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such State, territory, possession, or tribe, or a right or claim arising from such relationship.

H. R. 2677 - To amend title 1, United States Code, to eliminate any Federal policy on the definition of marriage .

To amend title 1, United States Code, to eliminate any Federal policy on the definition of marriage .

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `State Regulation of Marriage Is Appropriate Act'.

SEC. 2. ELIMINATION OF FEDERAL POLICY ON THE DEFINITION OF MARRIAGE .

(a) IN GENERAL- Title 1, United States Code, is amended by striking section 7.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of such title is amended by striking the item relating to section 7.

Posted by rowan at February 25, 2004 10:35 AM | TrackBack | Printable Version | [eMail this article!] |