TAKE MARRIAGE BACK FROM THE STATE: Reason magazine

Goodridge v. Department of Public Health is looking more and more like the Roe v. Wade of the gay marriage movement. Not only did the ruling depend on shaky constitutional reasoning, but it energized the opposition by seeking to short-circuit a public debate that was still in its early stages. ...

Justice Martha Sosman, who dissented from the court's decision in Goodridge, noted that giving marriage licenses to gay couples was not the only way to satisfy the majority's objection. "Rather than imbuing the word 'marriage' with constitutional significance," she wrote in a footnote, "there is much to be said for the argument that the secular legal institution, which has gradually come to mean something very different from its original religious counterpart, be given a name that distinguishes it from the religious sacrament of 'marriage.'...The legislature could, rationally and permissibly, decide that the time has come to jettison the term."

Significantly, this solution seemed acceptable to the majority. Chief Justice Margaret Marshall said giving a new name--"civil union," say, or "household partnership"--to a legal arrangement available on an equal basis to homosexuals as well as heterosexuals "might well be rational and permissible."

Such a switch may seem like a word game, but it would reflect an important reality: Civil marriage is not synonymous with "the sacred institution of marriage," which existed long before the state started doling out marriage licenses.

A couple can be married under Jewish law, for example, without being married under civil law, and vice versa. Orthodox Jewish authorities will never recognize a union between two men or two women as a marriage, no matter what paperwork the state agrees to issue.

The state does not own marriage and therefore cannot change it to the liking of this or that interest group. It is astonishing that conservatives, of all people, are so quick to grant the government that kind of power over something they hold sacred.

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posted by Eve at 4:11 PM | link

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