Saturday, June 27, 2015

Legislating Marriage

First I want to say that the SCOTUS decision to lift the restrictions states have put on gay marriage is a giant step forward. Everyone deserves to have these basic rights that have been denied to homosexuals. I was planning on starting with Virtual Wars informational blog posts today, but in light of this momentous occasion I wanted to discuss marriage and how all of the resentment and anger towards gay marriage could have potentially been avoided. Plus I like rainbows and unicorns.

Definition of Marriage

It's hard to define marriage because there are multiple definitions, and depending on who you ask you may get several different answers. The conservative religious definition of marriage frames it as a sacred union between a man and a woman for the purpose of procreation. Before the recent SCOTUS decision, the legal definition of marriage put it as a social contract between a man and a woman. Others may define it as a bond between two people who love each other and want to celebrate that love. Followers of Cthulhu define it as that thing that will make you irrevocably insane, but what would they not use that definition for?

I look at marriage a bit differently. I see it as a religious institution used to help guide people toward a lifestyle that falls in line with their shared beliefs. That leaves it open for different religions to interpret it in different ways. If your religion worships the Spiked Dildo of Chaos and requires sexual stimulation through a replica of said dildo during the wedding ceremony, that is your choice. I see marriage as something that should be left open for interpretation so people can define their marriage in a way that best fits them. As Ace Ventura would say, "Like a glove!"

Separation of Church and State

Using my definition of marriage as a religious institution, I do not think that the government should be able to exert any control over marriage. The first amendment supports this by stating that the government can make no law that prohibits the free exercise of religion. This means that any church that believes in gay marriage can perform that religious right whenever they feel like it. If you don't subscribe to gay Jesus in a rainbow tutu then you don't have to attend or support a church that does.

The problem with this interpretation is that if church and state are kept completely separate then it prevents the government from recognizing marriage in a legal manner. Which definition do they use? Will some religions get left out? Why can't I be green in Hungry Hungry Hippos? Without legal standing the benefits of marriage that are outlined by the government simply disappear.

I think that from a legal standpoint we should have a separate institution called a civil union. The civil union would be the legal standing recognized by the government. This would give the same legal rights and protections to any couple that would want to enter this social contract. Couples could still get married in a religious ceremony, but to have legal standing they would need to get a civil union through the state as well.

This would eliminate many of the arguments from conservative Christians who believe that marriage should be between a man and a woman. Nowhere in any religious teachings does it say anything about a civil union as a governmental institution. The Bible does make mention marriage though. The conservative churches don't have to join the party if they don't want to. We're having way more fun here though. I mean look at the disco ball.

The Problem

My idea of a civil union is not realistically possible. It seems like a good idea filled with the sugar in Pixie Stix of various colors, but it cannot happen. Marriage is too deeply ingrained into the laws of the United States. In order to make this change the wording in hundreds if not thousands of bills would need to change as well. By changing the name of the legal standing that couples have you would negate many of the rights those couples have had through marriage. It would be easy if we could apply a straight find/replace search that has been included in every word processor in the last 30+ years.

Lawyers make everything so complicated and they try to find any hole in the wording they can find to deny people the rights they deserve. I don't blame lawyers for this, but rather the judges who allow them to get away with such things. A change like this would have wide spread ramifications for married couples from health care to taxes to inheritance and so on. Since common sense cannot always have its day in our court system, we have to rip off the band aid and deal with the pain. That means we'll have to hear a lot of whining from those who disagree with this decision and want to deny a group of people the rights that should be available to all.

This is yet another reason why the SCOTUS decision is so important and special. Even with a conservative majority, they were able to make the common sense decision going against partisan politics. This isn't always the case in our court system, and it's refreshing that they would go against party lines to do what is right. The Republicans and Democrats in Washington, DC should take note of this and learn how to compromise on issues that make sense to every person on the street. It's time for them to stop acting like children, but I doubt they see it that way.


dave grigger said...

"I see it as a religious institution used to help guide people toward a lifestyle that falls in line with their shared beliefs." <<i concur. and i'm all for them doing whatever it is "THEY" want to do. but telling me & errybody else how we should "get together" is more than a bit pretentious, imho.
i honestly don't know about all the legalese you refer to, so i defer to your judgement.
a very balanced and thought provoking piece.

Brian Basham said...

I'm glad you enjoyed the post. I have discussed this very idea before a few times with a friend of mine who just graduated from law school. I like my definition and ideas here because it is a clean clear cut way for everyone to be able to have their rights and freedoms without the need for conflict. The legal arguments and pitfalls make it impossible without having to do a rewrite of too many laws that are already on the books. If we could go back in time and set something like this up from the beginning it would fix a lot of things, but as usual hindsight is 20/20.

Liz Stier said...

I like rainbows and unicorns too!!!
Love it! As usual, you have kept me interested with the not so fun stuff by adding the super fun stuff...though I will pass on learning any more on the Spiked Dildo of Chaos ;)
In all seriousness...this is great! Not bad for someone that has not experienced the misery :)

Brian Basham said...

Glad you enjoyed it Liz. The uh.. Spiked Dildo of Chaos is kind of an inside joke that others can enjoy without knowing it's history. Let's just say that it isn't something to be trifled with. Lol

Liz Stier said...

I will take your word for it and use a Brillo pad on my gutter mind...