May 26 2009

@RegularRon: To the Prop8 folks and anti Prop8 folks...Why is it such a big deal to have a Religious ceremony blessed by the Government?

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This comment flowed past me in Twitter, and I couldn't let it go. It shows to me the deep seated problem that everyone has. They keep seeing this as the government's problem and it it really isn't. It is the people who view themselves as religious who have the problem.

Problem 1: "Marriage is a religious institution."
Nope, it isn't. Marriage is a civil institution that is sanctified by the church. In other words the government defines marriage and the church approves it. This is as simple as figuring out why we have marriage in the first place.

  1. Marriage protects children. Who are financially responsible for children when they are born? Who enforces this? Government.
  2. Marriage protects property. If a partner in a relationship dies who owns the items they held in common? Who enforces this? Government.
  3. Marriage protects liability. If a partner in a relationship has to testify in court, uses a partner as an alibi, tells things to their partner in confidence the partner cannot be compelled to testify against their co-partner. in other words, the partner's relationship is privileged. Who enforces this? Law and government.

Problem 2: "Marriage is defined as a union between man and woman"
So by @RegularRon's argument, let us assume that government turns ALL responsibility for marriage over to the church. The only union that the government recognizes is a "civil partnership" which is enforced by written contract. Since the contract defines the terms, the participants can define their partnership in any way they see fit from polygamous partnerships to same-sex unions. The church cannot say anything against them as they have forfeited that right by holding exclusive the definition of marriage to be their own.

The problem with this is that children from a "civil partnership" are only the responsibility of a set of parents. They are not protected by law. Their parents are not married, remember? Civil unions aren't marriages in the eyes of the court (which use the church definition of marriage due to long legal tradition). These children can be awarded custody to anyone the court deems suitable parents

If a partner leaves the "civil partnership" they will have to exercise an exit clause in their contract. If they feel that the exit clause is unfair (even if they signed it) they can dissolve the entire partnership among all members (including any third-party members) in court and all of the property would be liquidated and divided according to the courts direction. Unlike a divorce in which there are laws about what can or cannot be taken from a marriage partnership. Civil partnerships aren't protected except as far as the contract defines, and that contract can be dismissed as "unfair" (ever heard of a marriage defined as 'unfair?')

If there is a discussion between the partners of a civil partnership - regardless of its confidentiality - it can be reported to the stand. In fact, a meeting of the partners that affects the stability of the partnership (such as if one of the partners committed a crime) would have to be recorded and filed and could be used in a court of law under the rules for partnership.

Basically a marriage isn't a civil partnership. They aren't equal. So the government has defined marriage by the battery of laws that uphold the institution. No church or religion can enforce any of those laws. The government cannot establish any religion or religious institution and so therefore marriage isn't a religious institution. All the church can do is approve or disapprove the marriage for its own membership.

Problem 3: "Marriage is a sacrament."
I totally agree, it is. But by definition sacraments are not sacred until they are recognized as sacraments. A sacrament is "a visible sign of an invisible reality." If the church does not recognize the invisible, then it is just what it appears to be. I.e: bread isn't the flesh of Christ unless the church sanctifies it. Water poured on your head that isn't blessed is just a bath. A marriage is just a marriage in the church unless the church sanctifies it to be a "holy union". Once they have sanctified it, then they can define the benefits of that union to the members of the church in any way they want.

If your church does not approve the marriage by sanctifying it, then you can exclude them. You can define them as "living in sin" and vilify them if you want. You can even graciously accept them but recognize for your purposes that they are "un-sanctified" in their marriage. This may mean the children of un-sanctified marriages are excluded from baptism (if that is your thing) unless someone outside your union will vouch for the spiritual upbringing of the child.

The point here is made over and over: the church doesn't define marriage, government does. If the members of a very vocal majority define marriage for a minority and offer them some weak-sauce alternative ("You can have Civil unions, isn't that the same thing?") then you are promoting a "separate by equal" mentality (which, by the way, was deemed un-Constitutional several times over). It should be and must be the same for everyone.

And here is where the rubber meets the road. Is a person's sexual orientation grounds for considering them a minority? Can you just legislate "don't be gay" and say that is a valid law? Not in California you can't. Sexual orientation has consistently been upheld as a grounds of discrimination by California law. Therefore, the upholding of Prop 8 is surprising in that it only affects those who are gay and yet was upheld as valid under the California Constitution. And this is where my problems with the decision lie.

"Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression." --Thomas Jefferson