I have recently been thinking about the so-called “institution” of marriage and the controversy over which kinds of people should be allowed to be married and which shouldn’t.
I Don’t Like Marriage
First, let me start out by saying that I don’t like marriage in any of its forms for anyone. To me, it is an institution created at a time when women were considered little more than chattel, property, to be transferred from one family to another. Worse, the transfer out of the woman’s father’s family is considered a good thing because they no longer have to care for the woman who, to the minds at the time, were worthless because they could not do “a man’s job” and were a burden.
Think about some of the traditions that go with marriage. Wedding gifts are considered now to be for both the bride and groom were originally for the groom only. They were a bribe from the bride’s family to get the groom to take her off their hands–a dowery. The changing of a bride’s last name to that of her husband was originally intended to show the transfer of “ownership” of the bride to the groom’s family. The bride was thus “branded” so everyone would know she was no longer the concern of the bride’s father’s family and was now the “property” of the groom’s. Now, these traditions have been altered over time to make them more palatable, but the fact is they were created as a means of transferring property, namely the bride.
If That’s What You Want…
That being said, it’s quite sad that the LGBT community has not been allowed to share in the joy (some would say misery) of marriage because of antiquated laws, based in religion and in clear violation of the First Amendment’s Establishment Clause. They violate the prohibition, “Congress shall make no law respecting an establishment of religion…” by requiring that people subscribe to the religious idea that marriage was a union “between a man and a woman” when there are religions where the two people’s gender are not an issue. Those laws thus elevated a particular religious belief above others, thus establishing those elevated beliefs as the “official” religion.
However, in light of some of the recent controversy over allowing LGBT couples to be married, those laws have (or had) a more subtle violation of the First Amendment. Namely, those laws prohibited LGBT couples from freely exercising their First Amendment right to freely exercise their own religious beliefs. Why is this important? Because the recent controversy I referred to earlier involves those of a particular religious faith refusing to issue marriage licenses to LGBT couples even though they are required to by law. They claim that to force them to issue the licenses would violate their right to the free exercise of their religion.
And, therein lies the problem.
What do you do when a person’s right to freely exercise their religion of choice curtails the right of another person (or couple) to freely exercise their different religion of choice? That’s really the central issue.
It seems to me that you must try to accommodate both sides as best you can, but one side or the other is going to lose something. The trick is to see if you can find some way to make what is lost something that is not Constitutionally protected. Then, while one side or the other may not like it, they cannot object to it on legal grounds. So let’s examine both sides to see if we can find something.
The LGBT Side Of Thing
One way would be for the LGBT community to accept an alternative form of “pair bond” that functions legally exactly like marriage but isn’t called marriage (e.g. Civil Union or Domestic Partnership). That would allow LGBT couples the same rights, privileges and responsibilities afforded a heterosexual married couple. Those of religious faith who would be compelled to issue the document would not be issuing a marriage license and thus not violate their religious convictions. But, the document would have the same legal weight as a marriage license.
Unfortunately, I seem to remember that something like this was proposed to members of the LGBT community and was rejected. They wanted to be married. I don’t see why the name is that important, but obviously they do. Without that kind of a compromise, there is little that can be done from the LGBT side. And, it still raises the question, which religion gets to define what marriage actually is, from a legal standpoint? Because, if you allow one religion (or group thereof) to define it legally, you have established it (or them) as an official religion, something specifically forbidden by the First Amendment.
Religious Objector Side Of Things
Now, let’s look at the other side. What can be done from the side of the religious “conscientious objectors”? Well, first of all, if the office where marriage licenses are issued has multiple people who can issue the licenses, at least one of whom does not object, then there is no problem.
Or is there? In this case, the simple solution is to simply ask the LGBT couple to go to a different line where the person issuing the licenses doesn’t have a religious objection. Easy, right? Except that the LGBT couple might be embarrassed or receive unkind attention by being singled out to move to another line. Also, the license issuer might not want to have to reveal their religious objection, also for fear of embarrassment or unkind attention. You might try to put up signs that say something like “Religious Marriage Licenses” and “Secular Marriage Licenses” to shunt LGBT couples to the correct line, but that still might be too much “singling out”.
I don’t see what the big deal is. To me, it is like being in line and when I reach the front being told, “Oh, I have an objection to bald men. You’ll have to go over to that other line.” Sure, I might question the sanity of the person, but wouldn’t have a problem changing lines. I might also be a little embarrassed, but not so much as to cause emotional trauma. But, that’s just me.
In any case, while there might be some mild embarrassment, transferring the LGBT couple to another line is a reasonable, rational compromise. The religious license issuer does not have to do anything that goes against their religious convictions. The LGBT couple still gets their marriage license.
But, what if all the issuers object or there is only one person in the office who is authorized to issue marriage licenses and they are a religious objector? Now what do you do?
Undue Burden
That situation is much harder. The LGBT couple would have to go to another county in the state where there would be able to receive a license. Unfortunately, they may have to travel several counties over before they find one that will issue them a license. This could result in a trip of a hundred miles (or more) and several hours worth of time. For a poor (financially) LGBT couple, this could be the difference between being able to get a license or not, thus preventing them from exercising their Constitutionally guaranteed right. Clearly that’s something we cannot allow.
Perhaps the office could issue vouchers for bus tickets to carry them to a county that will issue the license, but it still has a possibly onerous time burden. Given that they are poor (in our hypothetical), they are probably hourly workers and any time they spend travelling to another county is time for which they don’t get paid, which is an unfair burden (and might even be considered a tax).
It seems now that the only way for the LGBT couple to get their license in a reasonable fashion, would be to compel the religious objector to issue the license. But, is that legal?
Free Exercise Of Religion
I would have to say, no, nor is it right (in a moral sense). Then, how do you solve the dilemma?
I would approach it from an employer/employee perspective. If the employer (the government) hired the employee (the religious objector) to do a job and one of the requirements is to issue marriage licenses to any couple that qualifies, then the employee cannot perform their duties and should be replaced. Yep, I said it. Replaced.
But wait, isn’t that illegal because it requires the worker to be of a particular faith to hold the job? Actually, no. It doesn’t matter what religion the employee is. If they cannot perform their duties for whatever reason (religious or otherwise), then they should not be in that job. Period.
For example, let’s say we have a firefighter, who has served their community well, saving many lives, dashing into burning buildings to rescue people in need. But, one day, through no fault of their own, they get into an automobile accident, off duty, and are now a quadriplegic. They are now unable to perform their duties. Should they still be able to hold their job? Of course not. While their service was admirable, even exemplary, they cannot go into burning buildings to rescue people or even hold a firehose to extinguish a fire. Obviously they cannot do the job they were hired to do. Thus, they need to be replaced by someone who can.
Now, this doesn’t mean that you necessarily have to fire the person. Perhaps there is a job at their fire station or within the fire department that they can do even though they are quadriplegic. If that’s the case, then by all means move them into that job! But, someone still needs to be hired to be on that fire truck to do the job they can no longer do but sill needs to be done. If their disability is such that there is no job they can hold, then, sadly, they must be let go for the good of the community. It’s harsh, I know, but it’s necessary.
Now, with regards to marriage licenses, if the government employee that is tasked with issuing them is unable to do so, for any reason religious or otherwise, they should also be replaced. Again, if there is another position in the office they can do that they can do (e.g. doesn’t require them violate their religious convictions), then great; transfer them and get someone who can perform all the required duties. And, it’s not about religion. The new person could be of the same religion but simply is able to issue the secular document without compromising their faith.
If there is no other job in the office the religious objector can perform, then, sad as it is, they must be let go, just like the firefighter in my hypothetical above. If they cannot perform the job they were hired to do and no reasonable accommodation can be made, they need to be fired and someone hired who can perform the job. Unfortunately, irrational and illogical union and Civil Service rules may make that difficult to do. So, there may still be no reasonable way to accommodate both sides.
A Modest Proposal
Actually, I think there is a reasonable way to accommodate both sides. It’s something that I think should have been done at the start, but lawmakers were a bit too short sighted (and biased) to have done it. Now may be the time. Also, I don’t claim to have thought of it first, but I did think of it independent of any outside influence I’m aware of. Someone smarter than me (and there’s a bunch of them out there) may have thought of it first.
What I think needs to be done is to split marriage into two pieces, a secular piece and a religious piece. Now, this is similar to what the LGBT community seemingly rejected, but I think I have a small twist that may make it palatable to everyone (although religionists may find it difficult to swallow).
The legal, secular portion that confers all of the legal rights, privileges and responsibilities is issued by the state and is called a Civil Union. This gives the LGBT community the rights they are entitled to and religious objectors cannot object because it isn’t a “marriage”. Everyone, heterosexual or LGBT who wants to “pair bond” must have this document for the bond to be legal. It also has the effect of pulling religion and what they consider marriage out of the legal realm and plants it squarely back into the hands of the religionists who seem to want to control what is and is not a marriage.
The second part, called a Marriage Certificate (not License), is then issued by the religious official or organization appropriate to the couple being married. It certifies (hence Certificate in the name) that the Civil Union meets all the requirements, under their religious doctrine, of a marriage. However, it has absolutely, positively, no legal weight or power at all. Then, religious organizations can refuse to issue a certificate to anyone they choose on religious grounds thus preserving their “free exercise of religion” rights. They can refuse to recognize the certificate from any other religious organization(s) they choose (again a free exercise of their religion). It will then be up to every religious organization to decide, based on their faith, what they will certify and what they want. This should appease the religionists. They believe that marriage is a religious institution and this will make marriage just that: purely religious.
LGBT Marriage
The twist is, that since it is up to each individual religious institution to decide for itself what it will certify and what it won’t, LGBT couples may be able to find a religious institution that will recognize and certify their Civil Union to be a marriage under their religious doctrine. Thus, LGBT couples can, assuming they can find such a religious institution, get married just like heterosexuals can. Other religions can refuse to recognize such a certificate (for example, if the couple changes religions) as is their right. But they cannot deny the legal Civil Union rights nor can they prohibit the certification of the union as a marriage issued from a different religious institution.
Any current marriage licenses, of course, would be grandfathered in. They would serve as both a Civil Union contract and a Marriage Certificate from the religious institution that issued the license at the time. If the marriage license was obtained through secular means, such as a justice-of-the-peace, the license would serve only as a Civil Union contract. If the couple wants to be married in this case, they would need to seek out their religious institution to issue a Marriage Certificate.
I think this is a reasonable, rational logical proposal. It gives control of marriage back to the religions where it belongs, preserves the rights of the LGBT community to pair bond in such a way they they have the same privileges and responsibilities as everyone else and can be “married” if they can find a religions institution that will certify it.
Everyone wins if they will remain rational and reasonable about it. Unfortunately, people are rarely rational and reasonable.
Be well and think well…