Why Marriage is Unconstitutional and Illegal: The Gay Marriage Solution:

(Reprinted with permission from Moral Values, Politics & You, MoDaus Publishing 2006)

Many argue against same sex marriage because marriage is sacred and reserved only for a man and a woman. Some even argue that God consecrated it. Paradoxically, if it is sacred then marriage is unconstitutional. Besides that, restricting marriage to only a man and a woman is illegal because it violates many of the Civil Rights laws and decisions of the last half-century. So, how can this be and how can these problems be avoided?

The US Constitution mandates the separation of church and state and the freedom of religion. This means that civil laws and practices must be free of religious beliefs and practices and civil laws cannot restrict religious beliefs and practices that do not violate civil laws.

Declaring marriage solely as a union between a man and woman is based on religious beliefs and violates the constitutional separation of Church and State. This definition of marriage also restricts the freedom of religion by not allowing religious beliefs and practices that permit marriages between same sex couples. Thus, all marriages as they stand now are unconstitutional.

Another argument against same sex marriage has been tradition. Marriage reserved solely for a man and woman is based on societal customs reaching back millennia. Yet, the recent legislative and judicial scrutiny of the legal traditions prohibiting same sex marriages are based on the civil rights laws and court decisions of the last 50 years. These guarantee equal protection under the law for many diverse groups including homosexuals. In light of these equal protection laws, some states and their courts have struggled with the prohibition of marriage for same sex couples based on tradition.

Some states have tried to solve the equal protection under the law conundrum by instituting separate-but-equal “civil unions” for same sex couples while maintaining the same sex marriage prohibition. Yet, separate-but-equal laws are deemed inherently unequal. Furthermore, establishing civil unions should allow religious same sex marriages due to freedom of religion guarantees. Thus, the Massachusetts Supreme Court ruled that marriage must be available to same sex couples and that civil unions are not equal and therefore cannot be substituted.

Proposed United States and State constitutional amendments that restrict marriage to a union between a man and a woman while allowing for civil unions for same sex couples are problematic.

At worst, these amendments would discard the constitutional separation of church and state and freedom of religion provisions of these constitutions. These would also negate many of the civil rights laws and decisions of the last half-century.

At best, these amendments would discard the constitutional separation of church and state and invalidate freedom of religion for marriage only. And, they would negate equal protection under the law’s legislation and court decisions for marriage only. Trying to decipher the legal quagmire these amendments create would be hopeless. Neither situation is acceptable.

The strong desire to have religious and traditional beliefs and practices regarding marriage protected by civil law is no longer possible. There needs to be an alternative solution and actually a simple one is available.

The solution is to make marriage a religious or traditionalist belief and practice and make civil unions the civil law and practice. Thus, everyone would have equal civil unions under the law. Those who want to marry may do so within their religious beliefs and practices. Non-religious traditionalists would be able to set up secular organizations with traditions and practices that reserve marriage for a man and a woman. For this solution to work, it is key that a civil, religious or traditional ceremony legalizes the civil union. Thus, one ceremony would be all that is needed.

There is precedent for this solution. Many Eastern Bloc countries did not recognize religious marriage ceremonies and mandated civil ceremonies in order to have state-recognized unions. So, in these countries couples frequently have a civil ceremony followed by a religious one so as to have both civilly and religiously recognized unions/marriages. With the proposed solution, multiple ceremonies would not be needed.

This solution is attractive because it preserves the constitutional separation of church and state and freedom of religion. It would also preserve marriage under religious and traditional beliefs and practices. So, in the final analysis, same sex, religious and traditional marriages are all unconstitutional and civil unions for all are the only civil law solution possible.

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