On Feb. 5, 2004, President Bush reiterated the position he staked out in his State of the Union address regarding allowing same-sex partners to marry.
"Marriage," he said, "is a sacred institution between a man and a woman. If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage."
"Sacred," Mr. President? "Sanctity?" First of all, I wasn't aware that sanctity or sacredness were things that could be defended legally or even needed defending. It seems to me that God can probably defend God and those things rendered to God more efficiently and effectively even than Congress.
Second, I understand President Bush's fear of "activist judges." Just look at all the trouble they stirred up with respect to equal rights for African Americans and women. We already have gay men and lesbians agitating to defend their country by joining the army and begging to marry and endure the "marriage penalty." Who knows where things might go if they get out of hand?
Third, am I the only one who finds the mixture of religion and state in the peculiar institution of marriage rather disturbing? Were you aware that it is against the law in most states for a minister (priest, rabbi, imam pick your poison) to perform a marriage ceremony if the couple has not procured a license from the state? These laws do not just apply to New York mayors. Would any of us tolerate having to get a license from the state before holding a bris? Or a baptism? Before observing Qurbaani or communion?
I don't think that Mr. Bush's proposed constitutional amendment restricting marriage to one man and one woman will be the first discrimination written into our Constitution. After all, the Constitution was not originally intended to protect the rights of women or slaves or children. But from the very beginning, the Constitution has been expanding rights and the proposed constitutional amendment would, I think, be the first regressive step in U.S. constitutional history. I wonder if Mr. Bush's next proposal will be the repeal of other constitutional amendments such as the 13th and 14th that expanded freedom by opening access to rights granted only to some under the Constitution.
Rather than raising the regulation of marriage from a state level to the federal level, it is time for the governments of these United States to get out of the business of regulating marriage as a sacred (albeit peculiar) institution. There are many countries in the world that have figured this out. If you want a sacred marriage, have at it. Only don't go to your state governor for permission. Support your local religious professional. Get married all you want or all your house of worship will let you anyway. Knock yourself out!
But if the state wants to provide for a way of making society more cohesive, of stabilizing relationships and providing economic safety nets, etc., then the state should do so without co-opting religious ceremonies or sacraments. I do not argue that the state has no legitimate interest in controlling access to the benefits the state doles out. The very fact that legal marriage confers benefits paid for by the state gives the state such legitimate interest. Supporting the "sanctity" of a "sacred" institution, however, cannot be the legitimate interest backing the existence of a secular entitlement.
If the state's primary interest, for example, is the protection of children, then the benefit given should be tied to parenting and rearing children. Under that scenario, sterile persons, the elderly, and yes, some gay men and lesbians among others could legitimately be denied access to legal marriage.
All of this is to say that the state should establish a system of "civil unions" rather than using "sacred marriage" to further its ends. I am unable to fathom any circumstance in which the state can reasonably propose that restricting civil union to one man and one woman serves any recognizable secular interest. If you want to be married to follow your religion's teachings, to profess your unending love for one another and to enter into what you want to be an exclusive club of married folks go to church. If you want legal benefits for your economic unit, go to the state. Marriage at church. Civil unions at the courthouse. Pick (A) or (B) or (C) all of the above.
That way your church, mosque or other house of worship can continue to judge and condemn whomever it wants (or, more rarely, to accept and affirm whomever it wants). You can exclude or include whatever so-called "sins" you want. And the government of the people, by the people, and for the people won't have to sully its proverbial hands by enforcing religious prejudices.
"Render unto Caesar the things that are Caesar's and render unto God the things that are God's." Even Jesus had something to say about the separation of church and state.