In the eighteenth century people understood the distinction between civil marriage as a legally enforceable economic contract and holy matrimony, which was more or less forever. Nowadays, most people only discover the first principle when they forget the second. Modern brides and grooms are too busy planning their wedding to pay attention to the fine print in their marriage licenses until divorce. That’s when it hits them that when you say, “I do,” you are consenting to an enforceable contract with real financial burdens.
The intensity of the debate over same-sex marriage comes from a profound misunderstanding about the distinction between the civil and religious aspects of marriage. You could choose to marry without the church; or you could have a church wedding without any state-issued marriage license. One form of marriage does not necessarily entail the other.
But most opponents and proponents of same-sex marriage treat the issue of civil marriage as if the state were conferring its “blessing” on same-sex couples or otherwise “consecrating” their marital vows. Why in the world would anyone care whether the yahoos in state government approved or disapproved of your marriage?
The benefits of a civil marriage are clear. It imposes a legal obligation on both parties to support each other and any children of the marriage, and it makes it awfully sticky to leave the marriage. It also allows you to claim certain insurance benefits, inheritance rights, property rights, etc. These are all nice things to have, which is why so many gay and lesbian couples are making such a fuss about being denied them.
Opponents of same-sex marriage express the fear that their churches will be “forced” to perform such marriages, which of course, isn’t true. The first amendment defines the separation of church and state. No federal judge or state legislature can force a church to marry someone against the beliefs of its congregants.
Opponents of same-sex marriage also claim that somehow if Ben can marry Jerry than Jack’s marriage to Jill is somehow cheapened. Blaming gay couples for the problems of heterosexual couples is like blaming the French for the taste of British cuisine.
The country seems poised to have an insurrection over this question, but why? The question before Federal District Court Judge Walker in San Francisco was “What is the public interest in prohibiting same-sex couples from marrying?” The Judge found no rational justification for denying same-sex couples the right to marry. Even if you don’t agree with the Judge, ask yourself whether the public interest is better served by encouraging same-sex couples to pursue monogamy and to take economic responsibility for themselves and their children. Would we really prefer if gay couples leap-frog from one relationship to the next?
Judge Walker’s decision this past week to strike down proposition 8 in California is a deeply conservative decision in two respects. First, the Judge did not impose a higher level of scrutiny or infer some wholly new fundamental right from the Constitution. Instead, he considered point-by-point all of the evidence and found that there was no rational basis for denying same-sex marriage. Second, by re-affirming that marriage itself is a fundamental right guaranteed by our Constitution as the Supreme Court has said many times, Judge Walker elevated the dignity of all marriages in the eyes of the law.