Till Death (Or The Supreme Court) Do Us Part

[I've been thinking this early morning about gay marriage, a topic which, against all prediction just a few years ago, actually seems to be occupying the attention a huge percentage of my countrymen, for and against. Here's what I think...]

[Except for certain criminal penalties, "marriage" in the U.S. is the last vestige of the days before church and state were separated by the First Amendment. In England, from whom we inherited our common law, church and state aren't separate (the Queen is Head of the Church of England as well as Head of State - this isn't seen as a conflict except by hotheaded Guardian writers). Part of this connection has traditionally involved licensing clergy to perform marriage...an institution both civil and religious in England because there was and is no separation. (Nowadays, of course, other religions are tolerated in the U.K., so like here, their various clergy are just as able to solemnize British civil marriage as are Anglican priests.)

[The American colonies were established in part as havens of religious freedom against the Church of England. (Freedom for the colonists who established them, that is; not so much for other religions in most cases...) But because marriage was seen primarily as a religious matter, and because of the English tradition, clergy were still licensed by the colonies and, later, the states to perform marriage, even though the multitude of creeds here rendered absurd the concept of an established church.]

[The First Amendment codified the "no established church" tradition that, willy nilly, had already prevailed here. (I'm aware the Declaration of Independence makes several vague religious references to the "Creator," "Nature's God," and "Divine Providence" - notice Thomas Jefferson didn't specify whether he meant the Methodist or Catholic or Hindu Creator. I think he was just using the poetic/rhetorical license of the day... Anyway, psst! The Declaration isn't even law!) What this did with regard to marriage was create something called "civil marriage," which can be performed by a government official such as a justice of the peace (or in Las Vegas by practically anyone who puts up a shingle), or by clergy still, while leaving each religion's marriage rules outside the law.]

[To me, the fact that clergy can still perform legal marriage ceremonies is anomalous in the wake of the First Amendment; however, it was really no big deal as long as there was no difference between whom the various churches would consent to marry and whom the government would recognize as civilly married. (Remember, even if a member of the clergy marries you, you still have to go get a marriage license.) The crack in this unity first appeared when people of different religions and races tried to marry civilly; the Supreme Court finally ruled that any two people (the fact of their different sexes being assumed) had to be allowed to marry civilly. But I bet you can still find some churches in this great land that will refuse to marry certain couples who aren't of the same creed or race.]

[Now we come to gay marriage. Few religions support it, but in secular political discourse, the idea has steadily gained support over the last couple of decades. (Those opinion polls that say the majority of Americans don't favor gay marriage haven't escaped my notice. But I bet the number who do favor it is a lot higher than it was twenty years ago.) State and federal laws that only recognize opposite-sex marriage violate the 14th Amendment's Equal Protection clause, because civil marriage gives its participants a bundle of legal rights, rights given now only to opposite-sex couples. What should...no, must be done is that all states and the federal government must be required to recognize same-sex civil marriage. Churches can go on doing whatever they please, since under that same First Amendment, no law may be passed to prohibit religion's free exercise.]

[I think most people are against gay marriage because they believe marriage is still primarily a religious institution, and most people's religions say gay marriage just isn't on the table. These days, however, the government has more say over the rights and duties of married couples than religions do - marriage is a public thing, not private. Unlike some people, I don't think the government should get out of the marriage game; the institution itself is probably a necessity in our society, even if there are many problems with it, and so the government does have a place regulating it.]

[One of the positive outcomes of this whole debacle (assuming the daffy and pernicious idea to amend the Constitution to ban gay marriage never gets off the ground - sign the petition opposing it here, please) might be that we will finally nail the coffin lid shut on one of the last remnants of the commingling of church and state. If people understand why civil marriage and religious marriage are two different things in the United States, maybe the whole concept of same-sex civil marriage won't worry them so much.]

[Sigh. And maybe those famous monkeys will fly out of my rather less famous ass. I don't know why homophobia is so prevalent, but so was racism when Loving v. Virginia came down. (Yes, I know racism is still prevalent, but in the wake of Loving, most people don't think interracial marriage should be illegal. Cause and effect.) Just because a majority believes something doesn't make it right, and it's the Supreme Court's job to do the right thing even if the majority disagrees. You'll see - if the Supremes disallow laws against gay marriage when it comes to them, the country (including many churches) will slowly but surely change its mind, too.]

["Is it really so, really so, really so strange?
I say no, you say yes, but you will change your mind."]

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