I know gay marriage is a topic that is being beaten to death in these boards, but I had a sort of hypothetical question.
Supposing that your religion supported and was willing to perform gay marriage, can the government legally deny equal rights or fail to recognize that marriage? By doing so (failing to recognize the marriage) wouldn’t the government then be, in a way, playing favorites as far as religion goes, and denying people practicing that religion the same equal footing that say a Catholic wedding would have?
Could the freedom of religion then be used to legalize it?
I’m pretty sure the constitution doesn’t allow you to do anything you like just because your religion say it is ok, otherwise Rastafarians would be smoking marijuana and Moslems practising polygamy.
I don’t know if anyone has tried to argue in court that the prohibition of gay marriage is unconstitutional because it is purely based on religious teaching and has no secular purpose. The judgment in Stone vs. Graham, 449 U.S. 39 (1980) stated that for a law to be in accordance with the first amendment:
Here we have an excellent reason why the separation clause is so important. If there were some state-sanctioned religion, say… Scientology (shudder), then we’d be seeing a rash of legislation asking for rights to forcibly audit people, steal from and assault them, slander with impunity, etc.
The religious marriage ceremony is not what makes the marriage legal. It’s the registration of the marriage with the appropriate state agency. Before the agency will register the marriage it will verify that the marriage meets the legal requirements set out in state law. No state law or regulation prevents a same-sex couple from having a marriage ceremony; the state just won’t recognize or register the marriage as a legal one. The state will refuse the legal validity of the marriage regardless of whether the couple participated in a religious ceremony or not so freedom of religion doesn’t enter into it.
Just a thought…but my thoughts are that the gay marriage movement will turn away from religious recognition towards the legal recognition of a civil union.
Leave the religion out of it and the argument becomes one of estate and transferrance of property to a designated partner type thing… that will be an easier hill to climb than the powers that be giving in to a religious union…
Well, the question itself was more of a hypothetical question, not something I would actively seek to do or anything (since law is easier to deal with, when stripped of people’s beliefs)
My question was more wondering"
“if there was a religion that performed gay marraige, and the government failed to recognize those marriages like any other marriage, would that be illegal.”
While there may be room to argue whether it should be illegal, the reality is that the Supreme Court as it is currently constituted would probably hold that the government’s failure to recognize the marriage would not be illegal. Note the previous to Rastafarians and their inability (under current law) to smoke marijuana in the U.S. The court actually addressed that specific issue (regarding peyote buttons and Indians, rather than Rastafarians) several years ago and decided that the Feds were not compelled to recognize the religious nature of illegal drugs. I do not see the current court changing their minds if one simply exchanged marriage for drug use.
That’s really been their point all along. Some churches do perform gay marriage ceremonies (one is just down the street from me). The issue the gay/lesbian community has is that they are not afforded the same legal status (if they are married) as heterosexual married couples. Things like participating in your spouse’s health coverage, tax advantages to being married, equitable division of assets by the courts should they divorce, estate issues should one partner die, ability to make medical decisions for their partner in extreme circumstances (e.g. ‘pulling the plug’) and so on.
You can find lots of religious institutions around the country willing to bless a gay/lesbian union but the state doesn’t care and does not recognize it. Separation of church and state works in both directions. The state can’t abridge religious freedoms but neither does religion force anything upon the state. What’s more many states have passed “Defense of Marriage” laws to avoid recognizing a gay/lesbian marriage from another state (should another state decide to recognize it) which does seem to have some definite constitutional issues (flies in the face of the full faith and credit clause IIRC). As such it will likely take a Supreme Court ruling if the gay/lesbian community ever hopes to find themselves onthe same playing field with heterosexual couples and as previously noted I doubt the current Supreme Court would do that.
There are hundreds of thousands of children being raised by gay and lesbian parents. The children are either the isue of a previous relationship, the product of artificial insemination/surrogacy or have been adopted by one or both of the same-sex partners. There are any number of decisions (including to my shame one here in Wisconsin) which explicitly fail to recognize the parenthood of the non-biological parent. In many states should the bio-parent die the non-bio-parent will have no recourse in seeking custody. In situations where there are children of a couple which breaks up, the bio-parent has been known to deny visitation to the non-bio-parent on the grounds that there is no legal relationship between nbp and child.
I get that you were making a joke, but to the parents involved it’s not a laughing matter.
But does having had a church marry you in Tennessee ensure that Alabama will recognize the union? Can Alabama state that all homosexuals living together are in violation of Alabama state law, regardless of another state’s performance of homosexual marriage?
(Sorry to pick on Alabama. But it’s better for purposes of discussion to have a concrete name instead of a vague referent.)
As I noted, it is not the religious aspect of a marriage ceremony which makes the marriage legal in the eyes of the State. It is whether or not the parties to the marriage have correctly followed the rules set forth in the statutes for a legally-recognized marriage. There is no ceremony, religious or otherwise, required to “solemnize” (as WI law puts it) a marriage. What legalizes it are paying the appropriate fees, having the appropriate person sign the appropriate papers and filing the paperwork with the appropriate office. That’s all.
So to answer your questions:
No, a church in Tennessee’s willingness to perform a religious marriage ceremony has absolutely no bearing on whether Alabama will recognize the marriage as legal. For that matter, it has no bearing on whether Tennessee will recognize the marriage as legal. Now, should Tennessee for purposes of this discussion recognize a same-sex couple as legally married, the situation changes. There are those who believe that the Full Faith and Credit Clause of the Constitution would compel Alabama and every other state to recognize the marriage. Others argue that the disgustingly-named “Defense of Marriage Act” (DOMA) frees the states of any burden or obligation of recognizing any same-sex marriage performed anywhere (including those performed in Canada). There is a movement afoot to amend the Constitution to specifically declare that same-sex marriage shall not be recognized by the United States or by any state.
Can Alabama declare that any two homosexuals sharing living quarters in the state are breaking the law? No, because doing so would violate the First Amendment’s guarantee of free assembly (in my non-lawyer’s opinion) as well as violate the right to privacy guaranteed by the Constitution and recognized in Lawrence v Texas to apply to homosexuals.
Wouldn’t some type of Power of Attorney solve the problem for everyone? Granted family members could fight afterward, but that happens even in real marriages after one person dies.
Power of Attorney does not provide insurance benefits for partners who are not recognized, legally, by employers. In some instances, Power of Attorney does not provide the holder to make medical decisions for the person who assigned the Power. A hospital that has a rule that only family may visit persons in particular departments is not required to admit a “non family” member simply because that person carries a Power of Attorney for the patient.
There are a whole host of issues that Power of Attorney simply is not designed to address because they are currently presumed to be covered by the statues and common law regarding (marital) spouses.
Tomndebb answered this to some extent but it goes even further than what he/she outlined (I tend to think he since I’m not certain ‘debb’ ever posts anymore but in case I’m wrong I’ll waffle).
In addition to medical benefits gay married couples cannot benefit from tax breaks given to heterosexual married couples. Nor are they protected by divorce laws should they break up which would include things such as child visitation rights and equitable distribution of assets. They can write a will naming their SO as a beneficiary but it can all too easily be disputed by ‘natural’ family members (brothers, sisters, parents, etc.). In the absence of a will the dead persons assets will devolve to natural relatives as the ‘spouse’ is not recognized (which might allow thing like a house being sold out from under them despite the SO’s wishes). None of these things would be covered by a power of attorney grant and can spell significant trouble for a partner in such a situation if things go wrong.
