Keep the Feds Out of Gay Marriage

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Presidential election years are ... interesting (using the Chinese definition). Recently, after a number of incidents demonstrating the country’s division over gay marriage, President Obama went on record saying he now supports it. Who cares? Nobody should care what the President thinks about gay marriage any more than anybody should care what the President’s favorite color is. It. Just. Shouldn’t. matter.

The US was founded on religious beliefs, specifically Christian religious beliefs, and for good or ill, those beliefs permeate our legal system and culture. But wait, what about the separation of Church and State? Yeah? What about it? Where in the Constitution does that phrase come up? It doesn’t. The closest reference point is the First Amendment that specifically prohibits the State from favoring or establishing any religion over any other. Keeping with that, there is no State sponsored Church or official Religion in the US even though the State has been and still is heavily influenced by religion (&BTW, there's nothing wrong with that).

Marriage has two aspects to it. The first is religious. The institution of marriage was born out of religion. Every religion has its own doctrine, rules, and ceremony of marriage. Because marriage is a religious institution, the State shouldn’t care why, how, or if somebody got married. As pointed out above, this is guaranteed in the First Amendment: the US is forbidden from favoring one religion over another.

The second aspect is legal. If a couple acts as an individual; shares and intermingled their lives, responsibilities and assets so completely as to blur their individual responsibilities and assets into one shared set, the legal system, as a fundamental aspect of the state, is required from a practical standpoint to deal with the couple as an individual. This is evidenced by some states recognition (or even imposition) of common law marriages. If a couple acts as one, they are treated as one. It’s kind of the opposite of a corporation. A corporation protects individual share-holders from the repercussions of the actions of the corporation. A marriage makes both individuals responsible for the actions of either individual. Kind of an "Anti-Corp".

How does the US government deal with the dual aspect of marriage? Badly. Possibly (likely) because decisions have been made for political expediency and based on legal precedent (which may have been (probably was) based on political expediency).  Refreshingly, the US government only tries to deal with the acting (AKA: legal) side of marriage and not the institution (AKA: religious) side of marriage. Further, the US does not issue wedding licenses states do that). That’s all good.

What’s the right answer to the debate? The term “marriage” has been inappropriately overloaded and "civil unions", as they exist today, are not adequate.  In order to achieve the correct balance and maintain what the original framers of the Constitution intended (individual rights & civil harmony), the religious and legal aspect of marriage must be separated. Religions need to step up and take responsibility for the religious aspects of marriage, the institution, including the rules of who can marry and if/how a marriage can be dissolved. The feds must abandon the language of civil unions and establish Anti-Corps with the same rights and responsibilities that currently exist for marriages.  The term “marriage” gets stricken from the federal rolls and standardized forms. It would be a good time to review all those laws as well.  It has to be done at the federal level to be consistent across the union and the fact that AC's have financial dealings across state lines would make it easier to justify by the Interstate Commerce Clause than most of the other things justified by the ICC.

Of course, the legal establishment of AC's must also address the issue of dissolution of AC's. Religions must also re-establish their rules about divorce. The legal dissolution of an AC is a action only lawyers would look forward to.

Interestingly, divorce that is something that I rarely hear the pro gay marriage types talk about. Is the success rate for a gay marriage higher than for a traditional marriage? I can see reasons (especially early in their existence) for the numbers to be better as well as reasons for the numbers to be worse. Either way, there is too small a sample with too much noise to be statistically significant enough to draw reasoned conclusions.

In order for this to work, Both the feds and religions must act (which means it will not happen). This will likely mean that Catholics and Protestants and Jews and Muslims and Human Secularists and Atheists (Oh My!) will not be able to inter-marry until those religions get their heads together, but the interested parties can still act married by becoming an AC and gain the rights and responsibilities that come along with it.

Of course, neither side of the debate will be happy with these arrangements. To me, that’s a sign that I’m on the right track.

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