Are marriage laws a violation of SOCAS?

Great Debates
1

Are marriage laws a violation of the generally accepted doctrine of the separation of Church and State?

(yet another thread spawned from Esprix’s thread on “Love the Christian…”)

It seems to me it would be much more equitable, rather than forcing every “un-Christian” (using this term very lightly without restating everything in Esprix’s thread) couple or party or what-have-you to have to lobby for a law that says their brand of marriage should be OK, to just admit that the whole thing is an artificial construct based on the teachings of the dominant religious groups of the nation and to throw out such laws.

Thoughts?

2

No, because religious and civil marriage are not interdependent. You can be married by a minister, but you are not married in the eyes of the law if you don’t get the marriage license. Conversely, you can be married in the eyes of the law, but still be considered to be “living in sin” if you don’t get a minister to hitch yas.

Furthermore, marriage is a universal human custom, not necessarily limited to a religious ceremony, and certainly not limited to Christianity - which, since we are talking about America and seperation of church and state, I assume is the most important.

3

Well, marriage laws seem to pass the Lemon test. They

  1. Serve a secular purpose
    They determine who can get certain legal benefits and inheritance.

  2. Do not have the primary intent of advancing or inhibiting religion
    See above for their primary intent.

  3. Avoid excessive government entanglement with religion.
    Any two individuals who fit the legal requirment for marriage can marry, without regard to their religious standing.

So, they don’t seem to be a violation of SOCAS

4

A short answer: No.

The First Amendment says that the government shall not establish a religion, nor shall it impede anyone’s free exercise of their own religion. (I’m paraphrasing.)

Each denomination (even wackado cults :wink: ) has religious leaders who are allowed under the laws of that religion to perform whatever sacraments are necessary to that religion. Most of those leaders are also empowered by the State to make the religious ceremony a civil one as well. You don’t have to have a religious ceremony to marry. You can be divorced for civil purposes but not religious (witness annulment in the Catholic Church, or the Jewish get). In other words, religious marriage and civil marriage aren’t married to each other. Har har.

5

Marriage between exactly one man and one woman (henceforth, MBEOMAOW) is a universal custom? I don’t think so. It is common to most major religions, but that doesn’t make it universal.

Re inheritance, I think that is why there are Wills. What do you mean “legal benefits”? That is hardly a constitutional justification.

But they do inhibit people who might be inclined to a union which is not a MBEOMAOW. The law furthermore casts the frown of society upon people who engage in such unions.

I beg to differ with that. The “Legal requirements” are exactly what the dominant religions demand they be for such a marriage to take place. I think that is more than a mere coincidence.

6

***Originally posted by Captain Amazing ***
**Well, marriage laws seem to pass the Lemon test. They

  1. Serve a secular purpose
    They determine who can get certain legal benefits and inheritance.**

Agreed. Marriage laws do serve a secular purpose, by providing secular benefits to those who marry.

2. Do not have the primary intent of advancing or inhibiting religion
See above for their primary intent.

Really? The primary intent of most marriage laws is to mandate who may and may not marry. In many cases, there is NO secular benefit to doing so. The primary and only intent of those laws is to maintain the legal definition of marriage as exactly equal to the majority religion’s religious definition of marriage.

3. Avoid excessive government entanglement with religion.
Any two individuals who fit the legal requirment for marriage can marry, without regard to their religious standing.

And the legal requirements for marriage mandate WHO IS ALLOWED TO MARRY. These legal requirements exclude marriage except those marriages that fit the religious definition of the majority religion. This is establishment of religion by the state government, and constitutes violation of the first amendment against everyone who can not marry under those laws.

**So, they don’t seem to be a violation of SOCAS **
[/QUOTE]

In fact, they DO seem to be a violation of SOCAS to just about everyone except those whose religious beliefs just conveniently happen to match the laws which were set up by persons of similar religious beliefs. Funny how that works.

Not to say that members of those ‘similar’ religions don’t also agree that US marriage laws violate SOCAS. A lot of 'em do.
On the ‘universal human custom’ comment, I really wanted to paste in the paragraph I wrote last year when someone claimed ‘universal human custom’ as well as ‘natural law’ as the reason why MBEOMAOW should be the only legal form of marriage. Alas, it seems to have slipped into the black hole where my socks and pens live. Sad, cuz I don’t have time to do it over. Suffice it to say that, while marriage is a universal human custom, the definition of what constitutes marriage varies so wildly among human cultures as to make that statement damn near meaningless for this argument. If US marriage law included even a majority of those customs, we wouldn’t be having this discussion.

The EXACT PROBLEM with US marriage law is that it excludes all of the ‘universal human custom’ except for the one form practiced by a couple of religions.
[aside] jmullaney, are we actually agreeing on something here? That seems a little…I dunno…frightening. :wink: [/aside]

7

jmullaney(and you too, Redtail), I never said MBEOMAOW. I just said “marriage”. As for universal custom, please show me one extant culture that does not recognize some form of bonding between men (of any number) and women (of any number).
Second of all …

redtail you comment that “The primary intent of most marriage laws is to mandate who may and may not marry. In many cases, there is NO secular benefit to doing so. The primary and only intent of those laws is to maintain the legal definition of marriage as exactly equal to the majority religion’s religious definition of marriage,” is only partially correct, and not in the way you seem to believe. In New York, for example, marriage laws make no mention of the gender of the people to be married. They do define “void” and “voidable” marriages, but most of these restrictions involve age, blood relations, and ability to consciously and voluntarily choose to marry. Most states (until the recent splurge of Defense of Marriage laws) also did not specify the gender of those wishing to marry.

I think this whole thread is based upon a false premise. It’s labelled as discussing marriage in general, but what y’all really want to talk about is the limitation of the right to marry to OMAOW. That’s a separate question.
Quite obviously, “marriage” itself has no Constitutional problems, witness the fact, as I noted in my earlier post, that religion need not have anything to do with it. Atheists can marry, and a minister need not get within a 100 feet of them.

Personally, I’m in favor of same-sex marriages, and I even have an article published advocating that POV. (If you’re interested, it’s in the Spring 1996 edition of Brooklyn Law Review, 62 Brook.L.Rev. 399. I summarized my article in this thread http://boards.straightdope.com/sdmb/showthread.php?threadid=46769 ). Definitions and limitations on the right to marry may violate the church-state wall. They don’t impugn marriage itself.

Sua

8

OK, point taken.

No. I don’t confine my definition of “marriage laws” to merely the codification into law of a mutual contract engaged in by two parties. For example, I could enter into a contract with my local tailor that says I have to pay him $6 a month until such time as I can prove he had sexual relations with a goat – and if a widespread need arose for the ajudication of such contracts that they would need their own courts, etc., I wouldn’t have a problem with calling that Constitutional. But under a slightly broader rubric there are various other laws which treat people who enter the marriage contract (which I still think is largely MBEOMAOW – at least I haven’t seen many legally married polygamists or homosexuals on Springer, so what do I know?) differently than those who are not under such a binding contract. It is more those laws in conjunction with MBEOMAOW laws which violate SOCAS, don’t you think? Although, I will read your link.

9

Short answer: Yes. Long answer: No, with a “but.”

Now who can place that quote?

10

That would be Rev. Lovejoy.

Esprix

11

Yes. Marriage is a religious practice and should not have or convey any legal status. It should not be legally recognized.

Certainly couples–or for that matter trios–who do not participate in the institution of marriage should not be denied advantages enjoyed by married couples. Admittedly, in order to also give the individuals in such a couple the same rights and advantages of non-married persons (since it would not be fair to discriminate against someone simply because she or he is apparently part of a “couple” or whatever), there would be times when certain advantages would depend on the presence (or absence) of some type of legal incorporation, and it should be possible for any plural group of people to incorporate so as to acquire such a legal status.

But basing the whole thing on marriage is unfair to church and to those who prefer to remain unchurched alike: insofar as marriage is legally recognized, persons whose alliances do not fit the parameters of marriage as revered by traditional churches are going to feel that they should be allowed to marry, too, which upsetteth the true believers and traditionalists muchly. And meanwhile there are others of us who don’t want the social assumptions or some of the components of the interwoven legal basket of marital law imposed on us or our relationship, but feel that some of its strands should apply to us as well, and it is unfair to impose an “all or nothing” ultimatum on us.

12

Again, I think we’re off here.
First, I will concede that MBEOMAOW is, in my personal opinion, a violation of SOCAS. I qualify that statement to the effect I find it unlikely any court would agree with me. While to my knowledge no one has challenged MBEOMAOW on 1st Amendment grounds (almost all challenges have been on equal protection grounds), I believe that courts would find MBEOMAOW would pass the Lemon test and would therefore be Constitutional. The evidence provided to support its consitutionality would be the existence of civil marriage.
Second, I don’t think your analogy of marriage to common contract is accurate. (BTW, your goat contract, while constitutional, is illegal - you can’t contract concerning illegal acts. :)) Under law, marriage isn’t only about inheritance, etc. It is also about the assumption of rights, duties, and obligations, such as making medical decisions, financial and emotional support, assumption of responsibility for debts, etc. These are rights, duties, and responsibilities that couples or larger groups decide, by intertwining their lives, they want to commit to. Marriage, under law, allows for that assumption.
There has to be something like marriage in the law. If you decide to live with your SO, do you want that to automatically mean you assume the rights/duties/obligations?
I’ve lived with people in the past, and I haven’t wanted to. Assumptions of those R/D/O should take an affirmative step, and marriage is how we do it now. You could do all this by contract, but a wedding is both simpler, more inclusive (are you sure you can draw up a contract that will cover every contingency?), and, hell, more romantic.
Should marriage be limited to MBEOMAOW? No. But the concept of marriage is not only constitutional, but necessary.
AHunter3 - marriage started out as a religious practice, but is now codified in civil law as a separate institution. The simplest way of showing this is that you are not married under the law if you don’t have a marriage license, even if a cleric wedded you. The fact that its origins is in religious practice doesn’t make it religious. Holidays have their origins in religious practice, but that doesn’t mean the federal government giving its employees off for Christmas is unconstitutional.

Sua

13

First, legal marriage is not religious. It is a state-sanctioned union that can be entered into by atheists. The fact that people who are not married do not get the same benefits is a different issue than that of marriage.

It is not marriage, in and of itself, that grants benefits. It’s the legislature saying that only those who are married can get these benefits. In other words, they are using marriage as a status that triggers benefits. Others could be given those benefits without using marriage as the rationale. The legislature could say that any couple gets benefits whether they are married or not, gay or not, monogamous or not, etc. Marriage and the granting of benefits are separate issues.

14

Sure they do. When the “legal requirment” (sp?) is determined on the basis of “acceptable to the moral standard of the dominant religion” you have a clear violation of SOCAS.

Marraige is a contract to provide mutual support, provide for the welfare of any children that may exist, and conserve property. When the state refuses to recognize the contract because it doesn’t like the style of the participants, the law is not a marriage law, it is a sex law, and therefore ridiculous.

15

In Judaism, a man becomes responsible for his own actions at 13. However, under U.S. law, he still is a minor until he is 18. His “spiritual” status changes, but not his legal status, under US law. Equally, there are no US laws prohibiting any religion from defining what “marriage” is for its members. The religion is free to put whatever restrictions on who will marry, or allow whomever they wish to marry. However, the government does not have to recognize a marriage which is in violation of U.S. law. Similarly, the government isn’t required to take into account religious prohibitions. Your faith may say you can’t marry out of it, but the Justice of the Peace doesn’t pay any attention to that. However, if you believe that existing marriage laws are a violation of SOCAS, how would you rewrite them so that they wouldn’t be? If you want to get rid of the laws altogether, and replace them with nothing, how do you deal with Sua’s comment, that we need some way to tell who takes on the R/D/O of another?

16

As I said, marriage, as a form of legal contract, is OK. There’s not reason why you and I can’t make such a contract as is…

( … sir, sir, the doctor’s on his way, just stay with us… Can you tell us who has your insurance information, sir? … uh-oh, I think we’re losing him – delerious, he just keeps saying “captain amazing” over and over again… )

Well, OK, maybe one reason.

However, laws which give special treatment to people who have entered into such contracts in a way that is approved by the dominant religions are a violation of SOCAS.

17

I should clarify that I do not think that marriage laws are unconstitutional; they aren’t, any more than the laws prohibiting me from buying beer on Sunday mornings in New York City are unconstitutional, insofar as they circumscribe and abridge a range of behavior for me and other American individuals without reference to any established body of religion or its enshrined religious beliefs.

The underpinnings of the marriage laws, however, are religious in origin, and they impose those religious beliefs (and/or religious punishments for noncompliance) on us all, as do the alcohol “blue laws”, and their technical constitionality does not constitute a legitimate reason for keeping the laws around (in either case).

The laws should be removed because they do violate the spirit of the principle of a separation of church and state. The mechanism for their removal, however, should not be a ruling that they are in denotative, literal violation of the Constitution. They should simply be legislated off the books by our representatives in response to our insistence that we not have to put up with this shit any longer.

Hope that’s clear.

18

Even assuming marriage between one man and one woman has its basis in religion that does not mean that it is a violation of constitutional prohibition against the separaton between church and state. Just because a religion originated a law is no reason to throw it out. Extending the OP to its logical extreme because “Thou shalt not kill” is one of the 10 commandments of Judeo-Christianity therefore any statute that similarly outlaws murder also violates the separation between church and state. A state’s borrowing of good ideas from a religion is not the same thing as establishing the religion itself as the state’s mandatory religion.

19

Certainly not. But what about borrowing the other kind of ideas from religion, and using those restrictions to decide whose contract will not be recognized by the State?

For example: in the Old Testament, any sex not between a man and a woman is bad. Later on, we see that the U.S. will only recognize marriage between “a man and a woman.” Do you not see that the State, by so doing, is withholding government benefits to people solely on the basis of their sexual choices? And that withholding has it’s basis in religion, thereby violating the separation of church and State?

The State should either extend the recognition of marriage to any group that can understand the nature of the contract and chooses to enter into it, or it should withdraw any recognition of the contract and keep to minding the business of keeping the roads in repair and the invaders off the lawn.

20

A minor correction…the U.S. marriage laws aren’t derived from religion, they’re derived from previous, secular laws. which may themselves be derived from religious teachings.