What Do We Mean by "Marriage"?

I was hoping that Tuesday's vote would allow Texans to demonstrate an intelligent understanding of the marriage issue. But we, as a state and as a nation, still don't seem to understand just what marriage is or should be.

Marriage in the US is not something that can rightfully be defined by law. Marriage, as practiced in the US, derives mainly from western European cultures in which church and state were inextricably linked. Rites and rules of the church had legal standing and the force of law (not that much different from some Islamic countries today). Marriage is such a religious rite with legal standing.

With the ratification of the 1st amendment, the US severed the connection between church and state but just what does that mean? As to marriage, it means marriage still has the status of a religious rite with legal standing, but it must also mean that the legal standing be separated from the religious rite and become a civil union created by law.

Churches may define marriage however they like and may withhold the rite from whomever they see fit. This is, under the 1st amendment, outside of the control of government. Likewise, government may recognize that the religious marriage rite conveys legal protections, but that rite should not be, and under the 1st amendment, cannot be, the only means of conveying such legal protections.

For this reason, marriage and civil unions have long existed separately even though both are called "marriage".

A marriage performed by a magistrate is not a religious rite, it is a civil act which establishes and conveys legal protections. These legal protections are the same as those recognized by law and custom as being created by the religious rite of marriage, but we make a big mistake in calling the civil ceremony a marriage. It is a civil union, and as such, it must apply to all citizens equally as all citizens are entitled to equal protection of the laws.

Marriage is a rite of the church. Civil unions are created and recognized by law. Under the 1st amendment, civil law cannot define a rite of the church, and a rite of the church cannot have the force of law. But the law can accept a rite of the church as having a legally defined standing and has done so many times. In the case of marriage, a license must be obtained from the state and signed by an authorized official (minister, justice of the peace, etc.) in order to have legal standing. So a marriage can create a civil union, but a civil union cannot create a marriage regardless of what we have been calling it.

Just what legal protections may exist in a civil union is a legislative issue. Perhaps since two people of opposite sex are required to create a child, a state may legislate that only opposite sex couples may adopt children. Or civil unions could be recognized by federal and/or state law for purely economic, non-sexual purposes.

However civil unions are defined, any law or state constitution that denies the legal status of civil union on the basis of a religious definition of marriage is a violation of the 1st and 14th amendments. And any law or state constitution that denies a civil union to any adult on the basis of race, sex or religious affiliation is violation of the 1st, 14th, 15th, 19th, and 26th amendments.

I have no problem with churches defining marriage. Any minister who does not want to perform a same-sex marriage because it violates his/her religious beliefs may refuse. I do have a problem with anyone imposing these or any other religious beliefs on others in ways that clearly deny equal protection of the law to all citizens.