On the 2008 California General Election ballot voters will be deciding yes or no on Proposition 8. Proposition 8 is an initiative measure that will take away the right for same sex couples to be married legally in the state of California, one of only three states to recognize same sex marriage. The initiative will appear on the general election ballot even though the California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution. But my question is this: Does not recognizing same sex marriage under the law show a preference for religions that also reject the concept of same sex marriage? If it is preferencing some religions over others, then isn’t the government violating the Establishment Clause of the First Amendment?
The institution of marriage is a religion one that has been accepted by the federal government for legal purposes such as filing taxes and insurance benefits. Marriage as a legal institution has long been tradition in the United States but is now out of date and out of touch. Marriage needs to be taken out of legal context and left up to religions to decide whether or not they want to recognize same sex marriage. In the eyes of the federal government we should all be entering into civil unions, same sex couples and heterosexual couples alike. Then if respective religions want to further recognize the unions as marriage that’s up to them, not the government.
Many employers and insurance companies already recognize same sex couples as partners and therefore cover them under their benefits packages. But there is no legal binding for the insurers; these couples are at the mercy of the companies. Employers and insurance companies alike can arbitrarily decide to stop covering same sex couples when it is no longer convenient for them.
There needs to be a fundamental alteration of the division between marriage in the legal sense and marriage in the religious sense. The government entanglement with religion preferences those religions that believe marriage is solely between a man and a woman. An alteration of marriage in the legal world would include the provision of marriage defined as one between two consenting adults. The need for a bride and groom is best saved for the alter, rather than the legal world.
So by removing marriage from civil union law and instituting a policy of civil unions where the government is concerned would allow for equal protection and application of the laws for everyone. This change would also ensure the unnecessary entanglement of church and state a final end. The interest of the protection of all is an enough compelling federal interest than a single religious or state conviction.
The article can be found here: http://media.www.thepinelog.com/media/storage/paper954/news/2008/10/13/Opinion/SameSex.Couples.Face.Civil.Rights.Struggles-3483011.shtml
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This blog post is very noteworthy. The government should not have any involvement in marriage. The government should have involvement in civil unions - the only type of "marriage" recognition the government should offer. Marriage is more of a religious concept, rather than a legal concept, although it has been treated as a governmental concept.
As far as the establishment of a religion by denying same-sex couples marriage licenses, I disagree. This is because Congress is not making any law that respects an establishment of religion. Therefore, as a textualist, I do not see an establishment of religion through the denial of same-sex marriage recognition.
There are some issues beyond the scope of individual states. Although the federal constitution does not explicitly have the power to allow the Supreme Court to correct this situation, I do believe an effective argument of the fourteenth amendment could be used. This is because the fourteenth amendment ensures equal protection of the laws. Individuals are clearly not receiving equal protections under the law in regard to marriage, nor is there a unified consensus on same-sex marriage between the states. Therefore, the equal protection clause would make an interesting way to prove a "compelling federal interest" is present.
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