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) which many other religions do not share—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/ISIS) 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 governmental 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 both 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 notorious.
(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 and mutual rights and obligations of the parties to the contract
(two for most of us, except that the Bible relates that Yaweh allowed
Abraham, Jacob, David, Solomon, and presumably anyone else, a variable
plurality of wives—and except in Islam, which allows a man up to four
wives and an unspecified number of “concubines”
[sex slaves]; a
few other non-Western societies; and—until well into the 20th
century—Mormonism, an offshoot of 19th-century American Evangelical
Christianity). These rights 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 are also conceded by the state.
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
a divinely mandated reproductive function. 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. and other countries. 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, in the surviving texts of Roman law and in
Roman histories contemporaneous with them, and in 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 wants to impose on everyone else, should
be perfectly clear to anyone with any capacity for logical reasoning. A is not equal to B. — B is not equal to A.
First Posted by
Pier Roberto Giannelli on
4/01/2013
