Tuesday, December 11, 2012

Legally Forming a More Perfect Union—by Definition

Why is it so complicated to define the rights of “pursuit of happiness” or “liberty”? I found most aspects of the Defense of Marriage Act (DOMA) downright wrong, primarily because of the wide-ranging disparity of definitions given for both what a State is and what it has a right to regulate.

While searching far and wide for any serious phrase defining “State”; the closest I came to was a mixture of definitions provided by The Associated Press, Collins English Dictionary and Webster: “Any territory that became a member of the union called the United States of America”.  Becoming part of any of the 50 states and six major US territories, (as members of that union), certain decisions and definitions will apply to all.  As a nation, we’ve been fighting over different issues and whether each State should have final say or our federal government should.  These distinctions have been debated, fought and fluctuated for over 236 years now. 

By pressing to make DOMA all-encompassing and becoming common law, the advocates for DOMA have no one to blame but themselves for the Supreme Court having to step up and define marriage.  The creators of DOMA had a goal to maintain their perceived moral definition of marriage, but in doing so, correlated legal rights and religious rites.  It is dangerous to define our civil, legal rights by allowing the government to issue a “license of marriage” when marriage is generally a term of religious significance. Lesbian, Gay, Bisexual and Transgender Equal Rights should not enable a religious ritual. It provides you a civil contract.  The LGBT community would have benefited more by getting the State to make a civil union as binding legally as a marriage license is currently. In fact, it would have been better for all to have simply made the legal adjustment to issue a civil contract and not a religious ceremony. To be thorough, they could even go back and retroactively issue a State contract independently of each and every Church contract in US history more easily than trying to convince any Church to go against its teachings to acknowledge a marriage.

This has always been an issue of semantics, and it could be dealt with very rapidly and efficiently if they simply read the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." and if they then remembered that the amendment is not only to keep the state away from the Church in order to protect their freedoms; it also keeps the Church away from the State in order to protect theirs.  If you are a couple, whether recognized by the Church or not, bereavement, leave, wrongful death, inheritance, etc. are generally State issues and rights, not Church issues or rights. Many in the LGBT community are not satisfied with the option of a Civil Union. The primary reason is not because of its irreligious definition, but rather, that it has never been presented as having the same legal weight as a marriage.  Even President Obama had to struggle with the religion aspects, I believe that marriage is the union between a man and a woman. Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix.” (- April 17, 2008, while running for president, defining marriage at the Saddleback Presidential Forum); and: “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” (- May 9, 2012, as president, in an interview with Robin Roberts of ABC News). Millions of other Americans of all types have struggled with it also, due to religious beliefs in contrast with civil rights. More often than not, however, it is the civil rights that are most damaged with the lack of a State legal definition of a union outweighing the validity of a religious ritual.

Examples of these abound. For one, if one partner dies, the partner is not responsible for the other’s debt. This is not a Church issue, but a State one. In cases of divorce, a State recognizes it legally whether the Church who administered the ritual recognizes it or not. Should a Church define the legal decisions regarding shared property? Deciding custody of a child and child support? What about alimony or protection? No. These are all State responsibilities. Regarding debts, an unmarried partner is not responsible, a married partner is. Which is the State going to benefit from?

Other cases in point, medical situations where the partner of a person is not considered next of kin for hospital visitation and emergency medical decisions, again, a State issue, not a Church issue. Regarding public housing, without legally being a couple, if not recognized and thus denied or disfavored in their applications for public housing it is a higher cost to the State to house two single people individually. So is the State served better by couples living together or being considered individuals being housed separately? Regarding inheritance, it may ultimately benefit the State financially if no unmarried surviving partners are next of kin who can inherit. But the net benefit is unlikely to be much money considering the hassles and expenses of probate court. What about preventing couples from signing up for joint health insurance coverage for themselves and their children/step-children? How about the protection against having to testify against each other in judicial proceedings, or coverage in crime victims counseling and protection programs? Many of these options only help the State while doing no harm to the Church. Filing joint taxes and retirement spousal benefits do not affect the Church either.

So perhaps after tap-dancing around this issue for many years, Justice Roberts’ Supreme Court is finally entering the national debate over same-sex marriage. Agreeing to hear two specific cases challenging state and federal laws that define marriage to include only unions of a man and a woman, we may resolve the issue and our country may finally be able to handle this.

The State needs to provide enough legal pull for a Civil Union to be the law of the land for all couples (supported by DOMA or not); so it is about time the Supreme Court finally defined the State perspective.  They hopefully will provide a concrete civil definition and enable the State to push past the agitation and the parochial definitions of marriage. This could bring about a pragmatic, (and more important legal) precedent. James Esseks of ACLU put it well: “This is it — the Supreme Court marriage moment that the ACLU has been working towards for years.” Hope they get what they think they’re looking for, and that the State will be able to keep it’s autonomy from the Church and the Church can go by Matthew 22:21: "Render unto Caesar the things which are Caesar's, and unto God the things that are God's".

 

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