Gay Marriage: It's a First Amendment Issue

I’ve been reading up on the whole gay marriage controversy so I can educate myself on the issues at hand and formulate an intelligent opinion. In doing so, I’ve noticed something that seems to have escaped mainstream attention. I think there’s a significant First Amendment argument to be made to support the notion of gay marriage.

First, let me disclose my own personal biases. I don’t believe that the government should have the power to tell any two consenting adults that they can’t function together as a family unit with all the rights and privileges that married couples are granted by the federal government. At the same time, I don’t think that a religion should be forced by the government to accept beliefs that are not their own – if a religion wants to recognize only heterosexual unions as “marriage,” then the government shouldn’t have the power to force that religion to recognize homosexual unions as such.

The crux of the issue, for me, is that we’re not separating the religious notion of marriage from the political one. Religious conservatives are arguing that a government’s recognition of gay marriage somehow cheapens their religious institution of marriage. Problem is, our government has bestowed special rights and privileges on an institution that has its roots in religious tradition. Remember the First Amendment to our Constitution? It states clearly that “Congress shall make no law respecting an establishment of religion…” Isn’t that exactly what’s been done here?

If gays want to win the right to marry, they’re going to have to separate the concept of religious marriage from the rights and privileges the government extends to married couples. In other words, fight for those rights, not for the recognition of religious groups. If religious people want to believe that marriage is a heterosexual union and nothing other than that, the government has no right to legislate a change in that belief.

However, the government also shouldn’t have the right, by merit of the First Amendment to the Constitution, to confer special rights and privileges on certain groups of people but not others on the basis of religion. Any two people who want to function as a family unit should be able to do so, with the same rights and privileges as any other two people similarly functioning in that capacity – at least in the eyes of the federal government.

Before anyone brings up the notion of “civil unions,” let me say that they’re not the same thing as marriage. You don’t get Social Security with a civil union. You don’t pay federal taxes as married couples do when you’re in a civil union. Civil unions are not recognized by the federal government. They’re only recognized at the state level, and only by certain states.

If we really wanted to fix this whole conundrum, we’d create a legal status that’s exactly like the legal status the state and federal governments confer on married people. We’d call it something other than “marriage.” It doesn’t really matter what you call it – for our purposes right now, let’s call it “paired status.” Governments should remove all references to “marriage” in legislation and legal documents, and replace those references with “paired status.” That way, Congress isn’t conferring special rights based on religion, but based on a societal need for consenting adults to be treated as a family unit. And the religious right can stop whining about how granting gays this status cheapens their notion of “marriage,” because it won’t be called that anymore.

Gays can win this battle. They just have to fight for the right things.