This past week it seemed all that anyone on social media was talking about was gay marriage. This is because of the two Supreme Court cases that were heard last week. Everybody was changing their avatar to an equal sign and what not. I’m going to speak to that a bit later in my post but first I want to tell a story.
My wife is Jewish. This week we celebrated Passover with family and tonight we got our Ketubah from the frame shop. A Ketubah is the literal marriage contract that Jews sign when they get married. It is a contract. For centuries and millennia this is the ways that the Jews have performed their marriage ceremony. By signing a contract. Once you do that, you are married there is no more ceremony needed. However, there are additional vows that can be taken and performed. My wife, the good Jewess that she is wanted all of these things at our wedding. She wanted the Ketubah. She wanted the Huppah, a canopy under which the ceremony is performed. She wanted to spin around seven times like Joshua did to Jericho. She wanted to break the glass. She wanted to do all of this in a synagogue. She would have preferred to do it in her synagogue, but I not being Jewish meant that they would not marry us there. So we go and see another rabbi to see if that rabbi will marry us. It was the most uncomfortable meeting of my life.
During this meeting with this rabbi, I felt like I was a worthless piece of scum. That is the way the rabbi made me feel for not being Jewish and having the audacity to think that I could get married in this synagogue without converting to Judaism. To this rabbi it was the most unthinkable thing possible. Personally, I believe in God but not in religion. I do not think any person can comprehend the awesomeness of God and I certainly do not believe that man was created in God’s image. That is some hubris. Now I am not an idiot so I did not say these things during the meeting. I did not have too. Me not being a Jew was enough to be denigrated. The simple fact that I would not convert(as if I could) was enough to be quickly shown the door. If this rabbi would treat us like this and basically laugh in our faces for wanting to be married in a synagogue, then no rabbi would marry us in a synagogue.
In the end we were married Jewish, by a cantor, in a country club, under a huppah that I made and my boys put together. We have also ran into that rabbi and have had much better interactions, and I am sure it was nothing personal. It was strictly business. The religion would not allow such a union. Technically, there are some people who would still not consider us married.
This is what gets me about this current “marriage” equality debate. What is marriage? Is it the thing issued by the government? Does it have to be “before God?” Do the religious folks believe that atheists can get married?
The real problem is that states issue marriage “licenses.” They issue them just like fishing, hunting, or driver’s license’s. Does the reader know how one get’s a marriage license in Maryland? One of the parties goes to the circuit court and tells them the social security numbers. That’s it. The bride and groom do not even both have to be there. I am actually really shocked that there is not a huge amount of fraud and people collecting benefits from their “spouses.”
You can go to the courthouse and get married. In some states there is no requirement for a ceremony or to go to the courthouse at all. How sacred is that? Marriage simply has three meanings. It has a legal meaning that gives you tax benefits, social security benefits, testate benefits, and other advantages. It has a religious meaning as a sacrament. Finally it has a relationship meaning that is particular to each couple.
Going back to the topic de jure, what does all of this mean for “marriage equality?” Well first of all, Justice Kennedy is not going to see your Facebook page so changing the avatar is a bit obnoxious. Let us be honest, Justice Kennedy is the only person that matters. He will decide the two Supreme Court cases. The amazing part of all of this is that ten years ago to the day of the arguments in the Prop 8 case were the arguments in Lawrence v. Texas. That case prohibited governments from criminalizing consentual sexual activity between adults. If Justice Kennedy wants force gay marriage on the country he can. If he wants to keep it in California, he can. If he wants to not allow it in California, he can. I have no real feel for the constitutional issues surrounding the Prop 8 case. Marriage is a fundamental right according to the Supreme Court. Restrictions on marriage are subject to strict scrutiny. The court in Maryland previously got around this by saying “gay” marriage is not a fundamental right. That case Conaway v. Deane is a actually really absurd. If marriage is a fundamental right, there is no reason to exclude gays from that right. You can argue procreation, but infertile couples are not prohibited from marriage. You can argue religion, but atheists are not prohibited from marrying. There is no rational reason to exclude them other than that is the way that is has always been done. That’s not an argument. Can Californians vote to outlaw this right? Do initiatives need rational basis? Then there a whole host of standing issues.
The Defense of Marriage Act case seems more cut and dry. The federal government is not allowed to change a state’s definition of marriage. It has never done so and the Constitution’s full faith and credit clause and the tenth amendment do not allow it to do so now. The more interesting question is actually foreign marriages. Is a gay marriage in Canada valid under US law, maybe for immigration purposes? Why or why not?
The real solution is eliminate civil marriages all together. Eliminate the issuance of marriage “licenses.” The state has just as much right to issue a marriage license as it does to issue a baptismal certificate. None. In fact by issuing marriage licenses and not recognizing marriage between same sex partners the state can be infringing on certain religions that are more than willing to perform those marriages. Get the government involvement out of marriage and the religious issues disappear. However, in the mean time, let any loving couple who wants a state issued license have one. Maybe just make it a bit harder for everyone to get one, if the state insists on issuing them.