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02/06/2004: "Separate but Equal"

The Massachusetts’s Court had ruled against Civil Unions because “separate but equal” isn’t good enough. I am not a historian and I really don’t know the origins of marriage but I think it’s reasonable to assume that marriage was a religious ceremony that grew into a civil contract at some point in time. Probably when government’s figured out that selling licenses could be revenue producing and litigating the dissolution of marriages was a good source of business for all associates of the judiciary branch. In other words, governments starting sticking their noses into areas that it didn’t belong and usurped the authority of the churches. (Yes there probably was a need to actually have a record of marriages besides the church’s records that the government could provide because it would be especially useful for dispute resolution in civil courts.)

To illustrate, I’ll use the Catholic Church because I am most familiar with it. When a Catholic marries outside the church, the church does not recognize the marriage, although the state does recognize it. A Catholic who is married inside the church and is divorced through civil action is considered married by the church until the church grants an annulment and is forbidden to remarry although the state doesn’t consider a remarriage bigamy. This conflict diminishes the power of the church in an area that it most likely created. The Catholic Church considers marriage a sacrament. The government deciding who shall receive the “sacraments” of the Church is way overstepping its bounds. The next step is the ACLU filing suit against the Church for denying anyone Communion. It’s discrimination. I really don’t think we want to go down this road.

The court doesn’t like the use of two terms that defines the sexual orientation of the partners. How about a compromise? Change the civil use of the term marriage to union regardless of your sexual orientation. If you were joined together in a church, you are not only declaring your spousal partnership but you are also declaring your religious belief in the sacrament itself. You follow the criteria set by the Church and call yourself “married.” If you were joined together in a civil ceremony, you are declaring your spousal partnership but are not declaring any religious belief in a sacrament. You follow the criteria set by the law and call yourself “unioned.”

As far as the law and government are concerned either a marriage or a union would be treated as a contract between two people that defines a legal status with the same rights, privileges, and penalties attached to it. It need not treat either differently. It can be asexual. It need only set the requirement that it be between human beings who have reached an age that allows them to enter into a contract with the usual stipulations that govern all other contracts.

The hard part would be for those of us who would have to get used to saying unioned. We’ve called ourselves married for so long but we did make the conscious decision to buck tradition, our religious upbringing and not join together in a church, so we can make the change. I’ll accept that burden.

The last thing I want to see is the Constitution tampered with on this issue. I would be hard pressed to defend the government-sanctioned discrimination of the non-heterosexual population of this country. As a beacon of democracy in this world, it stinks of hypocrisy. Separate but equal didn’t cut the mustard in the sixties and it won’t in the new millennium if it’s purpose is to discriminate against a class of people who are under the umbrella of “All men are created equal.” The inference being that all people are treated equally under the law.

For those who are religious, the time to be outraged was when the government intruded into the religious realm and ordained itself capable of dispensing sacraments to begin with. I don’t know if any of us were alive then but many religious people probably were outraged. If you are currently a religious person, your outrage should be that the government continues this intrusion to this day. The civil use of the term marriage is the problem here. If they had used any other word but marriage, I don’t think anyone would disagree that the government does have the right to oversee legal contracts, which is what non-religious “marriages” are. That is the one of the prime functions of our civil courts. I also don’t think that any reasonable person would disagree that two consenting adults have the right to enter into a legal contract, which is all that a non-religious marriage is.

The offensiveness of this debate is that by hijacking the sacraments of religion and applying the law to them, the government puts itself in the position of telling people that their religious beliefs are discriminatingly wrong. The government has no such right. Freedom to express one’s religion must be held sacrosanct and separate from government intrusion.

Separate but equal should only be tolerated to resolve a conflict between two Constitutional given rights such as Freedom of Religion and Equality under the law. This division should be based on secularism versus religion when it comes to spousal partnership not the sex of the person sleeping next to you. I don’t feel a compelling desire to invite the government into my bedroom and, therefore in all fairness, I must insist they get out of yours.

66% of Americans would support civil unions versus marriage for the non-heterosexual population of this country despite or because of their religious believes. That’s a tremendous gain of acceptance over the last twenty years in this society. It didn’t come from gay pride parades; it came from having friends who came out of the closet and the realization that this difference need not cause a division. The end of discrimination in this country will occur when we quit harping on our differences and start concentrating on our commonalities.

I am a heterosexual interloper on the sacrament of marriage. I hadn’t really looked at it that way before this debate. My apologizes to the religious community for perpetuating the civil use of a sacred term. I would urge all Americans to do some soul searching before taking a stand on this issue. We find ourselves in this dilemma because the basis of our legal system has its roots in religious tenets and we are trying to reconcile a movement to extricate religion from the State in our court system. Tumultuous times are ahead, while this society negotiates the boundaries. There is a power struggle between the tenets of democracy and the tenets of religion. My hope is that we will negotiate the best that both factions have to offer and create a better society. Both have positive and negative points to be considered.

Replies: 1 Comment

This is the most reasonable take on the issue that I have heard.

Makes alot of sense to me said @ 02/18/2004 10:14 AM MST