Wednesday, June 26, 2013

Marriage and the Supreme Court

The high court issued two land-mark decisions on what is popularly called "same sex marriage."  In separate 5-4 decis-ions, the court's decisions came out with decisions favorable to supporters of same sex marriage.

We will shortly see the barrage of political spin on all fronts.  But, from my analysis, the court decided in a logical manner.

Defense of Marriage Act (DOMA) Decision
In this case, the court correctly determined that DOMA violated the constitution.  In simple language, since same-sex marriage contracts are equally legal as two-sex marriage contracts in certain states, the Federal Government is acting unconstitutionally by saying some of these valid contracts can be honored by, say the IRS or other Federal agencies, whereas other equally valid contracts are honored.  There is no simple logical or legal reason for this.   (Technically, DOMA was found to violate the equal protection clause of the Fourteenth Amendment, as made applicable to the United States through the due process clause of the Fifth Amendment.   Thanks to my friend Josh for the legal details.)

So, here's my analysis of the decision:
  • Simple logic:  This decision is simple as the Feds can't uphold some marriage con-tracts while not upholding other mar-riage contracts.  Fair-ness demands they honor them all or honor none of them.
  • States rights:  So, today, the left is championing state's rights to define marriage, whereas certain conservatives who oppose the decision want the heavy hand of the Federal government to say "wait, we have some overriding principal and we'll impose our will on everyone."  Here, these conservatives are wrong.  They proclaim a weaker Fed, until some issue comes up when they can control the lives of those who differ from them.
  • Theocrats:  We will hear religious leaders and religious politicians decrying the government cannot redefine the "traditional" marriage.  But these are the leaders who what to impose the principals of their interpretation of religion on all.  The want to encode tenants of religion into national law.  Here I have many things to say:
    - I do not believe in any encodement of any religious principals in national law.  This is both unconstitutional and against my religious beliefs
    - I am a Christian and I belief in teachings of Jesus Christ.  Jesus clearly had many problems with the high priests and scribes who wanted to hold all to their beliefs without walking their talk.  The theocrats are the high priests and scribes of our days and we must not follow them as they do not have authority in the eyes of God.
How Should Marriage Be Defined and by Whom?
We have been delivered to this point in time when this is the real question and this is where all sides want to prevail.  But before I tackle the issue, we need to look at the background:  how did we get from marriage as a local mercantile contract between business partners to marriage as something that spans the realms of religion and government?

A Brief History of Marriage  (taken from a previous post)
Forms of committed relationships between a man and woman date back millennia in many cultures. In many of the earlier forms a woman was considered given to a man. In European history, this was often seen as more a business deal, arranged by the families, where the woman may have been given as part of a transaction involving material goods.

Cultural traditions for marriage vary around the world and date back centuries, though the particulars typically evolved over the years. Often religious beliefs or superstitions were entwined in these traditions.

Formal state and/or religious recognition are relatively recent additions. In Europe, the first example of requiring a religious ceremony of marriage was in the Catholic Church, after the 1545 Council of Trent. However, religions ceremonies did occur for centuries before this date, but they were optional. Civil marriages emerged in Europe in the 1700s and 1800s.

The emergence of state recognition of marriage, particularly in Europe, roughly parallels the transition from state religions to tolerance for multiple religious traditions. Before that, the bureaucracy of state and church were so intertwined that the need for separate state involvement was not needed.

Back to the Question at Hand
We, in western society at least, have over the last 200 to 300 years come to move marriage into the public realm.  But, the major religions still believe marriage is theirs to define.

Thus, the conflict between church and state to define marriage.  Even in some religions, such as Judaism and Christianity, there is a divide.   Some sects cling to what they call "traditional marriage" yet others do marry same-sex couples.

This is the driving force in the power struggle for defining marriage:  does government in a multicultural society let the traditionalists, who may claim this is how it always was and always shall be?  Does government simply put it up to a vote?

As I have no trust of the theocrats, I can't accept any one view point strong-arming their opinion into law.  And, we all know the "Bible-based" marriage argument is weak, in light of many figures in the Hebrew scriptures who were unfaithful, or who had a lover on the side, etc.   The argument that it takes a man and a woman to conceive has a degree of merit, but, even in the arguments at the Supreme Court, the justices pointed out that marriage is not solely for propagation.  And there are many 2-sex couples who can't conceive as well as many ways that infertile couples and same-sex couples can conceive and have children.

In an equal manner, I don't like the idea of the definition of marriage being decided by a elected politicians or a ballot question or a judge in some court case.   Either, we end up with what DOMA tried to do, namely use the strong arm of the Fed to define marriage, or a patchwork of state-by-state decisions.

The Many Facets of Marriage
So, is marriage mostly for the propagation of the species?  Or for the committed, intimate relationship of soul-mates?  Or for the financial security of one or both spouses?  While traditionalists would say "all of the above" this is not always the case.  Some couples don't want to have children.  Some marry later in life so it's more about companionship.

Marriage has a somewhat different meaning and purpose for each couple, even if the traditionalists only put forward the model of a young couple marrying and having a family.

What Does My Faith Tell Me?
While many Christians will disagree with me, I can't say that a same-sex relationship is an abomination in the sight of God. I think we have to look hard at the teachings of Jesus and how Jesus lived and interacted with the people of his time on earth.   Yes, Jesus attended a "traditional marriage" at Cana and help out with the wine shortage.  Many take this as his endorsement of "traditional marriage,"  which it may be.   

But Jesus, unlike the scribes and pharisees of his day and the theocrats of our time, did not preach the prescriptions of what we should not do.  These folks love to be seen in public doing "good" things and following the rules.

Rather, he focused us on the greatest commandment of loving God and neighbor.  This love within needs to bring us a change of heart.  We must accept all, especially those on the fringes.  In Jesus' day, this was the tax collectors, prostitutes, and widows.  In our day, when we see who the theocrats rail against certain groups, those in the fringes include the undocumented aliens, minorities, LGBT folk (aka, "abominations"), the poor and homeless.

I know many same-sex couples who are motivated by love for each other.  I have many LGBT friends who have a strong faith in the Lord.  They don't exhibit the vile and hatred we see from the theocrats.  So, the question to me, is who is closer to the kingdom of God?

What to Do?
My proposal is simple: get the government out of the marriage business. A good pragmatic Libertarian has to always ask: “Does it make sense for the government to be involved in this?” I say: “No!”

The states should deal with legal contracts, which is one of the necessities of “being married” -- for example, ownership of common property, joint custody of dependents, rights related to health care, inheritance etc. So, I say any couple should be able to draw up a state-recognized legal contract regarding these matters.

And let the marriage ceremony return to the cultural traditions of the couple, be they religious or non-religious. Those traditions that recognize same-sex marriage can perform them; those opposed don’t have to.

Freedom and choice for all with no government intervention. That’s my solution.