In Defense of (Legal) Marriage

Because our legal system has developed a recognition of “marriage,” and established it as a fundamental right, the logical question then becomes why this legal system would validate one prescribed method of marriage just because it is the method approved by many religions. Two persons of the same sex wanting to enter into such a union should be, legally, equal to two persons of the opposite sex wanting to enter into such a union. If the right exists in a legal sense, religious caveats to it should not enter consideration. Religions themselves remain fully free to offer that recognition/sacrament/etc. to only those they deem fitting their idea of “marriage,” but that is wholly separate from a personal legal right.

The driving force making this issue so charged for people lies, really, in semantics. When the law adopted the notion of “marriage,” it also adopted the term, thus inextricably linking the concepts of marriage in a cultural religious sense and marriage in a legal civil union sense. Indeed, when two people get married by clergy or whoever their religion might have marry them, they often trust that person with signing their marriage certificate and in taking care of the legal details of the marriage. Such actions blur the line as to what portions of the act of marriage are legal and what portions are rooted in religion. This has led to the frustration people experience when what they deem to be “marriage”--a sacrament or an act blessed by God under their system of beliefs--is carried out in a way they view as unacceptable within that system of beliefs. Thus, it seems our legal system has adopted the concept of marriage with some vestiges of religion attached to it. This creates the mistaken view that extending that legal right into a broader, equal, concept is likewise somehow broadening a person’s religious “marriage” to include unions he or she rejects. It’s as though people reason that:

• my religious definition of marriage = “marriage”
• the legal definition of a legal civil union = “marriage”
• therefore, a change to “the legal definition of marriage” = a change to “my religious definition of marriage”

The simple answer to this semantic problem would seemingly be to change all “marriage” laws to “civil union” laws and grant the right to a civil union to any one consenting, of age adult wanting to legally “marry” any one other consenting, of age adult. But there’s that word again. The word “marry” has become such an ingrained concept that there is no other word that could even describe the legal act. “Will you unite with me?” just doesn’t cut it as a proposal when on one knee. And if “marriage” has really adopted such a dual meaning that it means marriage within the religious sense and in the legal right sense (which it has), then the solution is not to give it up in the secular and legal sense. The true solution is to keep the word as it is in the laws and let those who are offended because of their version of the above equation agree to live and let live.

Proper Scrutiny for Prop 8
Under current jurisprudence, sexual orientation is not considered a “suspect classification.” While there is a “fundamental right” for one man and one woman to marry under the Fourteenth Amendment, it has thus far remained unclear whether that fundamental right extends to same-sex couples. Indeed, the indication has been that it must not extend that far because, if it did, laws currently banning same-sex marriage would be facially invalid. Thus, the District Judge in the Prop 8 case proceeded on the basis that there was neither a suspect classification nor a fundamental right involved. This means that only a rational basis standard of scrutiny is to be used. While the Court is extremely deferential to the government when applying the rational basis test, laws have been struck down on this basis for lack of either prong: (1) a legitimate government purpose for the law, or (2) the classification drawn bearing a reasonable relationship to that purpose. A conclusion that there was no legitimate state interest to prop 8, or that the law was not reasonably related to that supposed purpose, strikes it down.

While laws have been struck down under the rational basis test (albeit rarely), courts have given the test more “bite” or “teeth” in cases involved a “quasi-suspect” classification and the interests involved are strong (sometimes called “rational basis with teeth”). The key difference lies in whether the “legitimate government purpose” is one that the court will speculate on or that must be stated on the law prior to the ruling. Here, the District Court reasoned that a quasi-suspect classification was involved (homosexuality) and the interest involved was strong (the right to marry being one that is, after all, fundamental). Thus, the so-called “rational basis with teeth” standard was correctly used and the law, having no stated legitimate government purpose, was correctly struck down.

Ultimately, the broadness of the legal definition of “marriage” has no effect on the narrowness of any religious definition of “marriage.” The key is that the reverse must also be true.