Marriage and the Constitution
Royal Love’s Facebook query:
Because of the religious roots of marriage, do you think it would be correct to view the entire establishment as unconstitutional?
Jim’s Response:
The Little Problem:
Royal, there are two huge reasons why this view would be incorrect. First, it could be safely argued that laws against murder, rape, theft, and many others find their roots in moral positions promoted by religions. The vast majority of moral positions and the law created therefrom can be found rooted in religion, so under your rule, they would all be unconstitutional. Your major premise is untenable. But this is not the big problem here.
The Big Problem has two parts:
Part 1- The Constitution and Religion: The constitution does speak clearly about restrictions in regards to religion in the first amendment. What is barred and restricted there? The first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” There are two things here that are barred: 1) Congress is barred from establishing (setting up, promoting, protecting) one religion over another and 2) Congress is barred from prohibiting citizens of this country from exercising their religious beliefs and practices.
Congress is the entity being restricted, not states nor citizens. Congress should not be making any laws that promote particular religions nor restrict religious practices… period.
Part 2: The Constitution and State’s Rights: The federal government has no authority to regulate marriage in the first place. According to the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The constitution does not delegate to the Federal government any granted power in relation to marriage. The Federal government has no authority to regulate marriage. It is up to individual states. If Arizona wants to use a specific set of criteria with respect to marriage and Tennessee want to use another set of criteria completely, then they can. It is a states’ rights issue. All states allow citizens to marry and have this marriage be a religiously related activity. All states also allow citizens to marry and have this marriage be a completely non-religious activity.
The full faith and credit clause of the constitution, Article IV, Section 1 of the Constitution addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings of every other state. The Defense of Marriage Act, as written governs this full faith and credit concern. It is currently under review by the Supreme Court. If the supreme court would be consistent and throw out ALL Federal laws that the 10th Amendment precludes, I would be fine with DOMA being tossed also.
So, in summary, a) it is irrelevant whether practices or even laws are rooted in or derivative of religions or religious influences, when it comes to public policy. This does not violate the constitution, 2) the federal government does not have the authority to regulate marriage, 3) the states have the authority to regulate marriage. If someone wants the federal government to regulate marriage, then he/she should work towards a constitutional amendment to give it that authority. Until such time, individual states can create marriage laws as the citizens therein see fit.
My answer (without looking at Jim’s):
No, a Government can recognize the benefits to married unions amongst its citizenship, and encourage those benefits for the health of its people (separate from the religious aspect of it). To include supporting it based on those benefits. If you want to call this a Civil Union recognition of “Marriage”, that’s fine. The value of having a dedicated couple raising good “moral” children, is something hard to put a dollar figure on, but certainly isn’t hard to understand as a benefit to society. People with these morals often believe in other moral grounds (like Charity, Unity, Fraternity, Reverence, etc…) that benefit a growing Nation- and its citizens. This is of “GREAT Value” to any Nation – let’s call it “The Glue That Binds.” (- thus very important to us all)
However, Marriage is a religious sacrament that (because of the Constitution) leaves the Federal Government out of the ability to dictate to its citizen’s mandatory union under a particular faith. (They -the writers of our constitution- remembered a particular King of England changing the National Religion because of a simple beef he had with those leaders over recognizing divorce? –there was more to it, but that was the skinny of it.) So, at the National level it should stay out of redefining the term “Marriage”- they don’t own it nor have jurisdiction to it in that way due to separation of Church and State under the Constitution.
The State level happens to be a different matter, because a State has the right to choose what religion it recognizes, unless the State levels Constitution also chooses to put in a separation of church and state clause. (As best as I know it- only 2 States have chosen what religion it recognized, and has never enforced that choice.)
How did I do teacher/students? Feel free to test me on a refined question over this, but Professor Shaul’s question was “General” in nature to garner debate, and hard to answer because of that. I hope I communicated in a way that helps start this debate up.
Resuming from the issues presented on facebook, the second issue is the kind of diplomacy I’ve been looking for! Might I ask for your personal opinion on the issue?
Please do
Ask away….