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Judges shouldn’t function like politicians.

June 27, 2015

Politicians come in all shapes and sizes, but you can usually tell them from the ordinary citizens by their uncanny ability to take seemingly simple concepts and muddle them to the point of being unrecognizable.

Using that yardstick the SCOTUS justices fully joined the ranks of the political class on Friday.

Obergefell v. Hodges litigated a seemingly simple concept.

Rule on whether states that ban gay or same-sex marriages are blocking the right of members of the gay and lesbian community to enter into a normal legal contract.

Because that’s really what this marriage license thing is all about. Two people presumably of sound mind and above the age of consent want to enter into a legal partnership.

Legally, it makes no sense to somehow define that particular partnership agreement differently than say, two gay or lesbian people who want to become partners in a business venture.

Where this gets all tangled up is when governments try to reconcile religion with the law.

People that have a moral objection to gay marriage usually justify that objection on the grounds that it somehow goes against their religious teaching, i.e. it is an unnatural union because it can’t produce offspring.

If religion, any religion, defines marriage largely on the ability of the people involved to bear children, that kind of leaves the gay and lesbian community out by definition.

It isn’t a terribly logical argument, since many people marry who are physically incapable of having children due to age or infirmity, but that’s an argument for another day.

It is amusing to read Justice Kennedy’s opinion and watch him trying to make the point that marriage has nothing legally to do with religion without condemning the practice of religion outright. His rhetoric about the emotional benefits and yes, the sanctity conferred by obtaining a secular license to marry simply muddied the waters.

It would seem to be easier to just accept the fact that the spiritual component of marriage is the venue of religion. The legal component is the venue of the law. The two should be able to complement each other.

One solution advanced in the past was to call the secular contract a civil union license for everyone, recognize the religious marriage with a certificate and retain all of the legal rights now codified under the term marriage for both. That floated about as far as a lead balloon, however.

Probably too easy.

Many straight people never get married by the clergy. Perhaps in the eyes of God that makes them sinners, but a government issued marriage license is about recognizing a legal state that also entitles people to secular rights and responsibilities.  Rights like being able to own and inherit property, or adopt a child, or to have joint responsibility to pay bills incurred for the benefit of both parties.

Aside from that, the question of whether two people can make a lifetime commitment to each other would be legally moot.

The only way that this decision could ever settle this question is for all people to recognize that there are two separate types of marriage, one spiritual and one legal. 70% of the  general public say they have done that emotionally when polled on the subject.

If a couple wants to achieve marital sanctification according to their religious beliefs nothing in this decision prevents that from happening.

This should be the end of the gay marriage debate, but politicians need causes to rally their constituents around, so this is probably not the last we’ll hear about the issue.

The danger is that having won a secular victory that the next political target will in fact be religious institutions, and that truly would be a bridge too far.

From → op-ed

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