All but eight states have laws or even constitutions in effect that prohibit same-sex marriage, with not even all of the remainder actually specifically allowing them. This is deplorable – but also essentially beside the point. You see, dear reader, as is uncomfortably often the case, the great majority of the population is ignorant not only of the issue itself, but also of its existence as only in a minute player on a much larger stage.
It seems wise to start with the smaller, more obvious contention – same-sex marriage – simply to get it out of the way. So, straight to it: the government has no place disallowing it. It is only disallowed to begin with because homosexuality is a sin. Oh, wait. Our government is not a church. Sorry, perhaps the United States Supreme Court was unclear when it, on multiple occasions, enforced the separation of church and state, so I will clarify: religious dicta do not belong in legal codes, just as much as laws should not be passed, except where necessary, to restrict religious freedoms.
Furthermore, any marriage law based on sex or gender is practically nonsensical, due to their fluid natures. A biological male could identify, of course, as male, but also as female, neuter, or even all or none of the above, without changing his physical appearance, sex organs, or legal status. Were a biological man who identifies as female marry a woman who also identifies as female, this would, even in conservative constituencies, be completely legal. This same biological male, on the other hand, could have a sex-change operation. This complicates the issue even more, as Jennifer Finney Boylan points out in her New York Times editorial, “Is My Marriage Gay?” In fact, she says, a poorly-thought out law regarding this “made Texas, paradoxically, one of the first states in which gay marriage was legal.” Various state laws about transgender persons have convoluted the issue to the point where a state that recognizes neither same-sex marriages nor sex-change operations – Vermont, for example, at least for the time being – would specifically only allow a transgendered individual to marry within their own sex. Who knew that there are places in this country where heterosexual marriage was banned?
Well, after all that effort expended to demonstrate how anyone, regardless of sex or gender, should be able to legally marry – this, too, is beside the point. I mentioned earlier the clear separation between church and state. Well, in addition to invalidating laws against gay marriage, it also invalidates marriage as a legal construct. Marriage, like sin, is a religious concept, no matter how ancient it may be. Not all religious groups even have marriage, at least as we see it – it is not a universal. The fight for civil unions to be upgraded to actual marriages should be reversed: heterosexual couples should only be allowed to have civil unions under the law, and marriage should altogether be left to religion. It would, of course, still be the government’s responsibility to protect a church marriage, as a first amendment legal freedom, but it is largely irrelevant.
Now, it is quite possible that I have you squirming in your seat. This man is a raving lunatic! Voiding legitimate heterosexual marriages and replacing them with gender-confused civil unions? Madness! If this is the case, I apologize. Let me make it up to you. Perhaps a new limit on who can legally “marry,” to replace the ones I tore down earlier – that sounds reasonable. As it stands today, despite many people trying to “protect the sanctity of marriage,” there are still many people marrying without the “capacity” to do so. That is, there are several groups without the legal capacity to be party to any contract, but who are still allowed marriage contracts. Perhaps some of the rules should be reconsidered, but that is another issue for another day. Today, it should be pointed out that any marriages including at least one legal minor, intoxicated person, or mentally handicapped person, are null and void. Sorry, Britney. Sorry, rednecks. (Though, if it makes the rednecks feel any better, you can feel free to “marry” your hermaphroditic second cousin.)
Now that you have, ahem, calmed down a bit, I will press on, as I still feel a little cramped by these relatively broad civil unions. It feels like something is missing. Ah, yes! Polyamory. Monogamy, or marriage to one person, is a form of marriage – and marriage is, as previously mentioned, religious in nature. For that matter, polygyny, or marriage to multiple women, is rather common even in western religion; and polyandry, or marriage to multiple men, is not unheard of. Even group marriage lives on quite often as a small part of monogamy, in the form of Oneida kitchenware; the contemporary corporation was once a successful Christian commune in New England that shared sexual activity as much as it did property. So, even if the government were to limit these civil unions to accepted forms of marriage in Christianity, polygamy must be allowed. Although, with the government still not being a religious organization, that does not even come into play.
Of course, all of this leaves out one very important argument: who is anyone to dictate whom someone can love? After Loving v. Virginia, the Supreme Court case that finally ended anti-miscegenation laws, it is not often heard that we should reinstate those laws. As then-Chief Justice Earl Warren wrote, “Marriage is one of the ‘basic civil rights of man,’ [. . . .] To deny this fundamental freedom on so unsupportable a basis [. . .] is surely to deprive all the State’s citizens of liberty without due process of law.” I can hear the call now: “Hey, you skipped an important dependent clause in the first sentence!” So I did. Warren indicated that “Marriage is one of the ‘basic civil rights of man’,” because it is “fundamental to our very existence and survival;” however, this is clearly not the only good reason for a marriage – or else, married couples lacking children would be frowned upon. And they are not.
In the end, I still have not reached yet a more important point: that the government really has no place pushing anything religious on its constituents. And more important yet, that it has no place treating any victimless action whatsoever as a crime. However, I am not in the mood to write a book. Sorry. Anyway. By the power vested in me by the opportunity to conclude this essay in a dismissive and irreverent manner, I now pronounce everyone who reads this sentence legal partners in an extremely complicated web of civil unions. You may kiss the author.
Boylan, Jennifer Finney. “Is My Marriage Gay?” Editorial. The New York Times [Chicago, IL] 12 May 2009, Op-Ed sec.: A23.
Loving et ux. v. Virginia. No. 388 U.S. 1. Supreme Court of the United States. 12 June 1967.