Alternative View to Z's "Discussion of Gay Marriage" Post
In "Discussion of Gay Marriage" Zipperupus (Z) calls for a marriage law reform that is not only internally contradictory, but worsens gay marriage issues.
Z asserts that to grant marriage status to gay persons all marriages should be made "civil unions" at law. While Z admits that church and state should remain separate, he prescribes greater state power over all marriages by making civil unions including gay marriage the controlling definition of marriage.
According to Z, marriage is a civil contract, therefore, the state should regulate all marriages as civil unions to give gay persons equal protection under the laws. However, he also argues marriage is a sacred institution protected by religious liberty rights. In so doing, he recognizes but does not constitutionally resolve an apparent conflict of liberties problem. Z's solution is to subjugate one liberty to another: religious rights to gay persons' claim to marriage as an equal protection right.
If separation of church and state is truly the goal, then state regulation of religious marriage, including its subjugation to a state definition of marriage entangles church and state more, not less. It spawns endless litigation over what the state's definition of marriage should include or not include. This will violate the Establishment Clause over time because the state and federal courts will repeatedly be embroiled in litigation over the definition of marriage. This is unavoidable because to regulate a thing requires its definition to avoid unconstitutional vagueness.
For a state to define marriage for religious groups would also suggest that a state may define communion, repentance or baptism. All are sacred rites. Why is marriage the exception that the state may regulate? The trend implied is the imposed secularization of religion by the state, a First Amendment breach.
The improper statement of the gay marriage problem is that gays are denied marriage because religious groups have hijacked the definition of marriage in state statutes and constitutions to exclude gays.
The true problem is that the state regulates marriage at all. All of the ill-behaviors the state uses to justify marriage regulation (incest, abuse, fraud) happen in marital and non-marital relationships. Therefore they are non-marriage specific and may be regulated as specifically prohibited behaviors outside of marriage law, and must be equally applied to all relationships in which the ill-behaviors happen.
Polygamy may be an exception where it does not violate other legal prohibitions against fraud, coercion of legally incapacitated persons, incest or immigration laws. And the polygamy cases in constitutional history illustrate part of what is wrong with Z's approach. There, the majority population's religious preference, monogamous marriage, became state law, while the minority LDS population's was called illegal.
Majority or minority demands for state sanctioned benefits for their respective versions of marriage are what drive arguments such as Z's. However, what the state benefits, it may regulate. The regulation opens the door to ongoing discrimination that changes with the demographics of society, its legislatures and its courts. And the benefits and burdens flow to the favorite of the day.
Because the state has the power to regulate marriage, one or another religious faith will always fear that the state will be used to mar the sanctity of one of their key religious rites by incorporating a conflicting version into its definition. Because people's religious freedom and sanctity is tied to religious liberties under their constitutions, violations of these could also cause nationalistic backlashes.
Just as states may not constitutionally choose which God, god or gods should be recognized or defined by their laws, states must not be able to define key marriage rites tied to said God, god or gods. The state's definition will always resemble one group's version of marriage more than another's, and so favor one religious group over another as ultimately happened in the polygamy cases.
What is the alternative? Prohibit ill-behaviors irrespective and without reference to marriage. Benefit positive behaviors irrespective and without reference to marriage. This will not only enhance religious liberties but also equal protection of all cohabiting persons under the law.
