04 July 2005
Just Get Marriages Secularized in the Civil Code
I originally posted this in July 2005. I believe it remains timely and necessary. As California and other states weigh amending their constitutions to define 'marriage', a simpler approach can and should happen. The civil code should be brought into conformance with The Constitution of the United States on the basis of separation of church and state.
The California State Supreme Court upheld the rights of two persons to register and be legally recognized as 'married' using a parity argument (thus I simplify 70 pages of the opinion.) If the voters were to pass the proposition coming in November to the ballot, I believe the proposition is contrary to the federal constitution's separation of the state and religion.
Yes, to limit the state's eligibility for legal marriage is discriminatory under the law as long as the law is not changed by November's proposition. My argument is that the equality or parity basis for argument is not sufficiently supported by the federal constitution except through creating analogies to the 14th and 19th Amendments.
I believe the "Establishment" test of the First Amendment is the appropriate argument because delegation of the civil authority to marry two individuals under state law can be accommodated by state officials without inconvenience. I have spent this add afternoon deep in the words, and Cornell Law School's annotations thereon, of the Amendments I, IV, XI, X111, XIV and XV, plus footnotes to the annotated text.
No, I am not an attorney but I can reason and I can read. I believe the restriction of the civil rights and obligations of marriage to heterosexual couples imposes an unnecessary, religious belief on the civil code of law. The state can handle the number of heterosexual couples' civil action and homosexual couples' as well, without compelling a religious tenet upon the state.
Separating Religions from Civil Marriage Law
The current debate about the rules for getting married in California has proponents and opponents of present law [CFC 3.3.2.400 ff.] focus on the genders of applicants for a marriage license and on the cultural or traditional understandings of what marriage is. Recently, California enacted new provisions of CFC 2.5 with the intention of providing registered domestic partners with legal equivalency of marriage law.
Although the revised CFC 2.5 addresses inequality of domestic partner rights and entitlements and establishes civil union as a legal status equivalent to marriage, public opinion is far from consensus. Many same-sex couples consider civil unions as only an interim legal status that still is inferior to marriage in our society. Opponents abhor any notion of legitimizing same-sex marriages or at best consider civil unions sufficient for homosexual couples.
One tactic to resolve this Constitutional issue for Californians would consist of eliminating 400 (a) which delegates civil authority to religious organizations for solemnizing marriages.
400. Marriage may be solemnized by any of the following who is of the age of 18 years or older:
(a) A priest, minister, or rabbi of any religious denomination.
(b) A judge or retired judge, commissioner of civil marriages or retired commissioner of civil marriages, commissioner or retired commissioner, or assistant commissioner of a court of record in this state.
(c) A judge or magistrate who has resigned from office.
(d) Any of the following judges or magistrates of the United States:
(1) A justice or retired justice of the United States Supreme Court.
(2) A judge or retired judge of a court of appeals, a district court, or a court created by an act of Congress the judges of which are entitled to hold office during good behavior.
(3) A judge or retired judge of a bankruptcy court or a tax court.
(4) A United States magistrate or retired magistrate.
(e) A legislator or constitutional officer of this state or a member of Congress who represents a district within this state, while that person holds office.
The Legislature can amend other provisions of the Family Code containing similar delegations of civil authority to priests, ministers, or rabbis of any religious denomination.
The democracies of Europe separate roles for church and state. The appropriate local jurisdiction marries a couple who then have the option to have their marriage solemnized within a religious community--or not. In France, for instance, a domestic partnership is gender-neutral; Spain just eliminated gender from its marriage law.
In the United States, state family code can address all legalities, contracts and covenants of marriages, civil unions and domestic partnerships for state law. Irrespective of their status with the state, a religious organization can choose to recognize a couple's status according to the doctrines of particular religious faiths and creeds.
There is no compelling reason for California--and the other 49 states--to delegate a function of the Civil Code to religious organizations. To date, California law does not address the federal Constitution's First Amendment separation of church and state or the Fourth Amendment's equality under the law provisions. All concerned with this debate fully expect the matter to be resolved by the U.S. Supreme Court. Wouldn't it be ironic if the Associate Justices of the Supreme Court who are "textualists" had to conclude that The Constitution does not support restrictive, religious meanings for 'marriage' that would discriminate among the citizenry. Justices Scalia and Thomas are considered "textualists."
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