By Charlie Mitchell
In a couple of weeks, the nine justices the U.S. Supreme Court may tell us what the U.S. Constitution says about who may lawfully get married.
There’s a better-than-even chance their opinions will spread all over the legal map. And there’s a pretty good chance that the ultimate question – whether the Constitution says same-sex couples can be denied the same licenses available to opposite-sex couples – will be dodged. There are many unresolved questions of legal procedure.
What might be helpful, though, is to spend some time thinking about the peculiar institution of marriage and, specifically, why states (much less the federal government) have any involvement at all.
First, let’s divorce (sorry) legal marriage from religious marriage.
This is where a lot of confusion arises.
It is a crucial step.
Marriage is a sacrament in most faiths, including Christianity. Through all recorded history, it has been a holy and blessed practice for one man and one woman to seal a bond for life.
Yet the religious aspect of marriage has nothing to do with – or should have nothing to do with – the legal aspect.
Think of it this way: A minister can meet with Timmy and Sue, question them and, based on their responses, decide whether to conduct their wedding, sign their license. Same result if it’s Timmy and Tom seeking the blessing of any faith. Churches make their own rules.
This freedom has existed since well before the Constitution and, if the First Amendment is to be believed, it still does. To stress: No church has ever been required by secular law to conduct, ordain, bless or recognize any marriage. That’s not changing. Some faiths already give their blessing to same-sex couples. Some may in the future. Some never will. But it’s up to them, not to lawmakers and not to courts.
Now to the legal aspect. To wed in the eyes of the law, all two people need to do is buy a license and recite promises or oaths, forming a contract. The completion of this process is certified by the person, clergy or not, who administers the ceremony. The existence of the legal bond is recorded in government files.
In terms of paperwork, there’s not much difference between a marriage and forming a business partnership or corporation. The parties are deemed, by virtue of their agreement, to have certain rights and responsibilities – a pretty big array of rights and responsibilities – but that’s all. Although a marriage cannot legally be terminated without government approval, government licensure of a couple does not carry with it any value judgment – that a marriage is a good bargain for the two people or a bad bargain. Government has never cared who buys licenses, other than (1) whether either person is already married, (2) that both people are of legal age and (3) that neither is diseased.
There is a higher, secondary purpose for law, however, and it is to guide public policy. DUI laws, for example, exist primarily to punish offenders. The public policy benefit is to create safer roads for sober drivers.
So that brings us to the question: If churches and people of faith remain free to make their own determinations of who should and who shouldn’t be wed and if there’s a legal history of detachment regarding whether couples are right for each other, is there a public policy reason why Mississippi, the federal government and California voters should be able to block same-sex marriages?
Asked another way, who or what is hurt and who or what is helped by requiring that any two individuals committed to forming a lifelong partnership must be of different genders? Or does it make any difference at all?
That’s not the precise question the nine justices of the Supreme Court will be deciding (or dodging). They have more legalese to deal with.
Meanwhile, those of us in the rank-and-file will continue to hear many conversations. Most will be about what’s right versus what’s wrong. Let’s remember that the court isn’t deciding what’s right and what’s wrong. Too, the court will not mess with churches, with people’s beliefs. The decision (if there is one) will be secular and based on whether there is any objective reason that two people of the same gender cannot make the same legal commitments to each other as two people of opposite genders.
That should make the analysis a lot easier.
CHARLIE MITCHELL is a Mississippi journalist. Write to him at Box 1, University, MS 38677, or e-mail firstname.lastname@example.org.