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Monday, April 1, 2013
In the United States, the principal Constitutional arguments in favor of same-sex marriage are the following:
--First Amendment to the Constitution of the United States:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
--Full Faith and Credit Clause of the U. S. Constitution (Article IV, Section 1):
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. …”
--Privileges and Immunities Clause of the U. S. Constitution (Article IV, Section 2, Clause 1, also known as the Comity Clause):
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
--Privileges or Immunities Clause of the U. S. Constitution (Amendment XIV, Section 1, Clause 2):
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In invoking these Articles and Amendments, we remember that their original and enduring purpose and intention have been specifically to protect minorities against oppression by majorities.
The main arguments against same-sex marriage (either preachments about morality based on the supposed edicts of somebody’s god, or gross expressions of disgust) are refuted by the following facts:
1. In the United States, the constitutional guarantee of freedom of religion (in the First Amendment) protects both sides of the marriage-equality controversy: The religious groups that condemn homosexuality cannot be forced to perform or recognize same-sex marriages; but groups that accept same-sex marriage are free to do so—and the state, which may not establish (impose) any religion, may not impose either a ban or an acceptance. This includes the individual States, whose laws must conform to the Constitution.
2. Ignorant people confuse “marriage” with the “Holy Matrimony” of the Christian wedding service, which is for them a divine dispensation. The secularization of American society has contributed to this confusion by increasingly ignoring the religious phrase and substituting “marriage.”
3. Marriage is not "Holy Matrimony." "Holy Matrimony" is a specifically Christian religious concept (its defenders base their argument on the Christian Bible and its god), and it is not shared by many other religions—not even all Christian churches admit “Holy Matrimony” as a "sacrament"—and in the United States this religious concept (including the idea that a union between two people must be only between one man and one woman) cannot be imposed by some citizens on others without violating the First Amendment.
4. Unlike the state regulation of marriage, religious ceremonies like those of “Holy Matrimony” are not a legal requirement in most countries except a few theocracies (like the Islamic countries that brought us the Taliban, al-Qaeda and DAESH) or borderline theocracies with a state religion (like the Catholic military dictatorships of Franco’s Spain and most Latin American countries not long ago).
5. Marriage (not “Holy Matrimony”) is a civil contract registered with and regulated by the state. It is, in effect, a kind of incorporation. That is why couples are required by law to go to a demographic registry and fill out a marriage license. They register with the state.
6. Marriage (not “Holy Matrimony”) existed all over the world long before Christianity, and still exists outside Christianity, in order to ensure the orderly transfer of property—and not just through inheritance. That is why modern countries require a state-issued marriage license and, if the marriage is dissolved, a civil divorce decree that, among other things, apportions the couple’s assets and assigns obligations, sometimes as established by law. The prenuptial agreements that dispose of the couple’s property in the case of a dissolution of the marriage are contracts—modifications of marriage contracts.
7. In plain English, couples have “contracted marriage” for centuries, and have been regarded as in a valid marriage as soon as they or their representatives have signed a “marriage contract” or even made a witnessed “oral contract” to marry, leaving the church wedding for later. Western history is replete with examples and discussions of this fact, amply demonstrated in the controversies over the marriages of Eleanor of Aquitaine, and of Henry VIII of England, to cite only the most famous. (The practice is corroborated by the wedding of Grace Kelly and Prince Rainier of Monaco in 1956: as required by Monegasque law, the couple signed a civil contract in the throne room of the Grimaldi palace the day before the church wedding in the cathedral of Monte Carlo.) Everyone with a little property did this, not just royalty. This practice explains why a person who proposes marriage and then backs out can be sued for “breach of contract” (the recognized alternate wording is “breach of promise”). As a side-light, look up “handfasting.”
8. Through marriage, the state recognizes the common rights and obligations of two people (two, except in the Bible—Abraham, Jacob, David, Solomon, etc.—and in Islam, a few other non-Western societies, and—until well into the 20th century—Mormonism). These include the right to shared property and the obligation to honor debts contracted by the couple. (Ask any divorced person who had a joint credit card.) Tax relief and other privileges conceded by the state are also included.
9. These and the other rights and obligations of marriage are civil rights and obligations, and therefore, under the Fourteenth Amendment of the Constitution, they may not be denied to any adult citizens capable of functioning as members of the state.
10. Furthermore, regulation of marriage is not necessarily a States’ right. In the first place, the Supreme Court overrides States’ rights at will: In Brown v Board of Education (1954), in order to integrate the races in public schools, the Supreme Court arrogated to itself the previously recognized right of the States to regulate and control public education.
11. More important, in Loving v Virginia (1967), when it struck down State laws that made interracial marriages illegal, null and void, the Court superseded the States’ right to regulate marriage. And it was a unanimous decision. So there is nothing constitutionally inviolable about the States’ “right” to regulate marriage--including the "right" to define marriage.
12. Reactionary homophobic Christians, Jews and Muslims try to tie marriage to reproductive capacity. Yet many humans as well as all other kinds of organisms reproduce and bring up their young without benefit of marriage. Single-parent families have always existed and are an ever growing sector in the U. S. On the other hand, many marriages are barren, while orphanages all around the globe are overcrowded. Is God not doing His job?
13. Furthermore, the Supreme Court’s decision to legalize abortion in Roe v Wade (1973)—abrogating, by the way, the States’ supposed right to control abortion—breaks all juridical links between marriage and reproduction. That is, if reproduction were the justification for marriage, then killing the unborn, thus thwarting the reproductive process, would invalidate the marriage. But the Court made no such pronouncement in announcing its decision in Roe v Wade, and no court challenges to marriages ensued. Marriages remained valid. Therefore the reproductive function cannot be said to be the basis for marriage, and its absence cannot justify prohibiting marriage.
14. In fact, the societies which most forcibly linked marriage to reproduction did so in order to maintain population numbers as a prop for their imperialist expansion—the ancient Hebrews, the Roman Empire and Nazi Germany—all notoriously non-Christian. This is plainly shown in the Old Testament, the surviving texts of Roman law and in Roman histories contemporaneous with them, and records, still in existence, of Nazi laws and propaganda.
In summary, the difference between (A) what the Constitution of the United States allows or protects and (B) what a large part of the population approves of should be perfectly clear to anyone with any capacity for logical reasoning. A is not equal to B. --- B is not equal to A.