Daniel J.H. Greenwood

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Justice, Morality, the American Way and Gay Marriage

Daniel J.H. Greenwood

Sunday Salt Lake Tribune, March 21, 2004

Summary: The controversy about gay marriage doesn't belong in the courts or the legislature, but in the churches and homes of the people. The First Amendment principal of disestablishment can guide us to a way to live together in peace and justice even as we continue to disagree on the meaning of marriage.

Marriage is a fundamental human right. For many of us, and our churches, it is a holy act; in some religions even a sacrament. These two facts point to the only decent American solution to the gay marriage controversy. Marriage belongs in church, not in the courthouse or the legislature.

The separation of church and state is fundamental to American democracy. We are the most religious people in the democratic world -- because early on we recognized that majority rule should not apply to telling people how to worship their God. The First Amendment makes democracy possible without either religious unanimity or religious apathy, or, more likely, constant religious war. Our churches are free to develop, debate and persuade without state support or interference, and our politics can proceed without fear that temporary majorities will use the power of the state to forcibly oppress religious minorities. State and all churches are stronger for it.

The government must provide civil union. Families are one of the fundamental units on which our legal system is built. Couples act as one family unit for many purposes -- homeownership, taxation, hospital visitation, social security, parenting, childcare, adoption, school choice, welfare, debt repayment and bankruptcy, inheritance. Moreover, children are born into special relationships with their parents, both natural and legal, which must be defined and then change as the child matures and leaves home.

The law could not function without a mechanism for telling when two people have joined into one family. So, it must register unions and have some standards for when they have begun and what must be done to end them. And since we are a democracy founded upon principles of equality, justice requires that civil union be available to all citizens without discrimination.

But marriage is not civil union. Marriage is more: not just a method for the state to tell where a family begins and where it ends, but a religious act. Sacraments and holy acts are holy and sacred regardless of what the state says, and when the state (whether through its legislatures or its courts) attempts to tell people what they should believe God has told them, the prospects for peaceful and civilized democracy dim. No minority should accept majority rule on matters that are between citizens and their God.

The American solution to the marriage crisis, then, is simple. Listen to the First Amendment's call for freedom from state imposed religion. Elected legislatures or judges have no special insight into the word of God; it is not for them to decide which unions God and Church should (or should not) sanctify. The state should simply restrict itself to registering civil unions, open to all citizens on a non-discriminatory basis. Let our churches decide the meaning of marriage and who is eligible to enter into it.

Then, we should work in our churches to convince them to take seriously the equality that begins Genesis and animates our Declaration of Independence: whatever differences separate us are trivial by comparison with the fundamental premise that we are all children of the same creation, made of the same dust, given the same life and endowed by our Creator with the same inalienable rights. Straight or gay, human beings need companions, and it is generally better for them and for us if the companions are long term and committed. As Genesis puts it, "it is not good for man to be alone" (Gen 1:18). That is why religions sanctify marriage, why our gay fellow citizens want their marriages sanctified, and why our churches should meet this need. Marriage should be defended by extending it to all those who need it.

But this defense of marriage belongs in church, not in the legislatures.

It is time to listen to the call of our First Amendment. Marriage is a fundamentally religious act. Rather than battling in the legislatures and the courts over the proper understanding of marriage, we should direct our government to step away from this issue as it long ago stepped away from the equally controversial problem of how best to worship. We need to get the state out of the marriage business and leave marriage where it belongs: to churches, the people and God.

Daniel J.H. Greenwood is professor of law at the S.J. Quinney College of Law, University of Utah, where he specializes in the law of those other civil unions: partnerships and corporations. © February 25, 2004.