What is the state’s basic interest in marital relationship?
SOME TIME THIS SUMMER, it appears the United States Supreme Court will weigh in on the subject of same-sex marriage. The court has decided to hear two cases: (1) A lower court’s reversal of California’s Proposition 8 state constitutional ban on same-sex marriages, and (2) lower court divisions over portions of the federal Defense of Marriage Act.
The justices may offer a sweeping decision that interprets the constitutional question of whether same-sex couples have identical rights with opposite-sex couples.
Or it could narrowly decide the questions placed before it by the two cases, without imposing any uniform doctrine across the country.
EVIDENCE WOULD SUGGEST the political winds are blowing toward greater acceptance of same-sex marriage. More states have approved such unions, and President Obama has come out squarely on the side of acceptance.
Still, most states expressly have forbidden same-sex marriage and many of them are unlikely to alter that stand. Clearly, that raises the question of equal protection under the laws, in which Americans may be treated differently strictly based on who they are, how they conduct their lives and where they live.
Is there another way? One that meets the equality standard without trampling the beliefs of millions in traditions that have been in place for thousands of years?
QUESTION: WHAT IS the marriage arrangement, at its most basic level, in the interests of the state?
A contract, spelling out the responsibilities and duties of a partnership.
The contract establishes legal arrangements for finances, inheritance, joint obligations, responsibility for children and so forth. Really, most of that could be written into contracts today, if so desired, to cover same-sex couples. Still, we get it. Couples want some sort of official recognition.
What if states chose to get out of the “marriage” business, opting instead for strictly contractual arrangements covering couples, whatever their gender? Call it “civil unions,” call it “domestic contracts” or some other name of choice. But treat everyone and anyone equally in a non-judgmental fashion.
THEN LEAVE THE institution of “marriage” to the religious community, to bless or not bless any given union in accord with the beliefs of the faithful.
Some churches would marry same-sex couples.
Most, probably, would not.
The First Amendment protects Americans’ right to worship free of government’s heavy hand. The Constitution would be on the side of the churches as they decided to sanctify, or not, marriage as they saw fit.
In our view, the outcome of this divisive issue should be consistent with two bedrock principles of the Constitution. All Americans are equal. And all Americans have the right to practice their religious beliefs without state interference. Contract law satisfies on both counts.