First Amendment Rights

My Thoughts on Same-Sex Marriage

I am constantly looking for ways to make things as simple as they can be, and I’ve been thinking about this very complicated issue for a long time. I know that many of you have strong emotions tied to the topic of same-sex marriage – on both sides of the issue, and I respect your feelings. All I am asking is for you to give consideration to my thoughts, and see if you can push the sides of your box out far enough to embrace a new idea.

Marriage licenses started in the early 1600’s in Massachusetts, and in the Middle Ages in Europe to permit a marriage which would have been considered illegal if the appropriate banns had not been posted. Banns are proclamations or public announcement that a marriage is about to take place. It was commonly used by the Church of England and the Roman Catholic Church (abolished in 1983).  The purpose was to give people enough notice to raise church or legal impediments to the marriage to prevent invalid marriages. These impediments would normally include a pre-existing marriage not annulled or dissolved, a vow of celibacy, forced marriage, or couples related too closely.

Over the years, marriage licenses have been used by states to prohibit marriages to those who were deemed inappropriate. Stephanie Coontz, in a NYTimes article entitled “Taking Marriage Private”, states that “by the 1920s, 38 states prohibited whites from marrying blacks, ‘mulattos,’ Japanese, Chinese, Indians, ‘Mongolians’ ‘Malays’ or Filipinos”. Several states refused licenses to addicts, drunks, mentally deficient or those who had been previously married. Most of these laws were repealed by the mid-1900s.

Most licenses/documents now (2012) serve two purposes:

  1. Legal and contractual
  2. A record of the ceremony of marriage itself, if signed by the couple and witnessed.

Every state within the United States requires a marriage license (marriage certificate), in order to legalize their marriage. This provides proof of legal obligations that have been entered into, as well as who receives Social Security, insurance, medical and survivor benefits.

A partial list of rights/benefits and legal obligations under Federal Law[1] include:

  • Right to spousal benefits while married
  • Joint tax filing; Income tax deductions, credits, rates exemption and estimates
  • Disability benefits
  • Medicaid
  • Property tax exemptions for totally disabled veterans
  • Joint and family-related rights
  • Tax-free transfer of property between spouses
  • Special immigration consideration to spouses of citizens and resident aliens
  • Domestic violence protection orders
  • Funeral and bereavement leave
  • Joint adoption and foster care
  • Spousal medicat decisions
  • Permission to make funeral arrangements for a deceased spouse
  • Right to inheritance of property
  • Spousal privilege in court cases
  • For those who are divorced or widowed, the right of many of ex- or late spouse’s benefits
  • Spousal income and assets are counted in determining need in many forms of government assistance
  • Ineligible for National Affordable Housing program if spouse ever purchased a home
  • Ineligible to receive varius survivor benefits upon remarriage
  • Providing financial support for raising children born within a marriage

That’s the history, current usage, rights and benefits associated with “marriage”. Now, let’s make it simple.

The way our marriage license laws are being used today, they restrict marriage for same-sex individuals because it is considered inappropriate by a variety of religions, but not all. And, by mixing religion and law, not only are we moving back to the Middle Ages, we are depriving people of the legal rights, benefits and responsibilities given to those who commit to long-term relationships based on love, respect and dignity. We had moved away from this perspective when we repealed the discriminatory laws in the mid-1900’s, and it hasn’t taken long for us to find another group of people to legally discriminate against.

Our country was founded upon the separation of church and state, as laid out in the 1st amendment to the constitution.[2] And, to keep things simple for all of us, we should go back to what was intended by paying attention to our Constitution. Belief systems, and religious practices are too unique, and too widely disparate, for us to bring them into the laws governing our nation.

For me, because marriage licenses are used primarily to determine legal rights, benefits and responsibilities, and can only be dissolved through legal dissolution, it has become a contract – pure and simple. In my mind, this is ALL that either the federal government or state governments have a right to enforce. And, last I heard, any citizen can enter into a contract unless they are a minor, or have been declared incompetent to do so due to mental incapacity (which also requires legal action).

Any divine blessing can be conferred by a religious body according to it’s beliefs, and should be kept separate from legal determination. This allows those entering into a “Blessed Union” to choose the religious body reflecting their own beliefs and values to confer the blessing, and removes religious discrimination from our laws.

Because I hold each person’s rights to their religion to be sacred, I cannot and will not argue with them over verses or belief systems. I simply believe that everyone deserves the same legal rights as every other citizen of the United States, and the state of Nebraska.

[1] Per Wikipedia, prior to the enactment of DOMA, the General Accounting Office (as the GAO was then called) identified 1,049[2] federal statutory provisions in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor. An update was published in 2004 by the GAO covering the period between September 21, 1996 (when DOMA was signed into law) and December 31, 2003. The update identified 120 new statutory provisions involving marital status, and 31 statutory provisions involving marital status repealed or amended in such a way as to eliminate marital status as a factor.

[2] The establishment clause of the First Amendment prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the “separation of church and state.” Furthermore, the Supreme Court has interpreted the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.