Almost two weeks ago, the 9th U.S. Circuit Court of Appeals affirmed the ruling overturning California’s controversial Proposition 8, the ballot initiative purporting to ban same-sex marriage.
In a 128-page ruling, the court chided Prop. 8 proponents as bullies, dismissing a gay marriage debate that has become increasingly insubstantial.
In California, the court found that “debate” has been reduced to something closely resembling name calling with a constitutional amendment that does nothing but restrict the right of married gay couples to call themselves “married.”
The bundle of rights that make up legal marriage has — in states including California — now mostly been extended to gay couples. They can cohabitate, own property, adopt, raise children and, with the help of science, even create them. And they can do most of these things on the same legal basis as straight couples.
Even where legal doctrines differ, practical realities usually do not. In most states that ban their union, gay couples can build families that look just like marriage, though with technical distinctions that are markedly unfair.
Remember “white” and “colored” drinking fountains serving the same water? To the court, that doesn’t work with gay/straight labels on the same legal contracts either.
The simple truth is, there is not a legal difference between gay people and straight. Not in America. And the rights extended by our government can’t differ between people who don’t differ from each other.
There are religious prohibitions against same-sex marriage. They don’t bind our courts and are not enforceable by our secular government. The pragmatic goals they reflect are not being served by technical distinctions and the social benefits they seek don’t hinge on titles.
So if we don’t want to call gays married, our government should get out of the marriage business. And maybe it should get out anyway. If the term is half as valuable and religiously significant as its defenders claim, it’s probably not something secular governments should control.
Marriage is religious, or it’s not. If it’s religious, it should be governed by religions. U.S. courts are not equipped for biblical interpretation.
Most faiths do what amounts to double-marriage: one marriage by the church, and another by civil authority. If they weren’t different, we would not need two certificates.
The easiest response to the 9th Circuit, by its detractors, would be to make all civil marriages into unions. Then churches could decide to marry whom they want, based on the standards they control. Some denominations will allow for same-sex marriage and some won’t. The voters won’t be asked and the religious won’t be bothered.
There’s no reason to be pronounced married twice, and churches, not states, are the arbiters of spiritual significance. The government does not decide if your love counts, and it does not know what God thinks about your lifestyle. Our laws exist to uphold legal rights, and gays are not a separate legal class.
So let’s call civil marriage what it is in truth — a union, and stop fighting over labels that have no bearing on love.
Reach the columnist at john.a.gaylord@asu.edu
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