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July 01, 2003

Rites vs Rights

"The union of husband and wife in heart, body, and mind is intended by God for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God�s will, for the procreation of children and their nurture in the knowledge and love of the Lord. Therefore marriage is not to be entered into unadvisedly or lightly, but reverently, deliberately, and in accordance with the purposes for which it was instituted by God."
-- The Book of Common Prayer

Marriage is an axiomatic article of faith. Profession of marriage before God is therefore a declaration of faith, not only in one's spouse but in the principles under which it was created. What then is the state's interest in marriage?

I would suggest that the state express passivity with regard to the holy orders of matrimony as part and parcel of its duty to the First Amendment. The Constitution binds us to respect freedom to worship and thus protects, without underwriting or respecting the practices of religious ceremonies and rites. The state simply recognizes the right of churches to establish and maintain their rites and balances that interest with domestic tranquility.

The Episcopal Church ordains women as priests. This was once very controversial but is less so today. In this expression, the Episcopal Church has declared this gender role as appropriate. The state must not either encourage or inhibit ordinations of women and do so only affirmits its neutrality on the merits of the rite. Furthermore it should restrain others who do not respect the ordination of women according to their beliefs of gender propriety, from interfering with the free exercise of Episcopal Ordination.

Whether the state does so for 'Gay Marriage' depends entirely upon whether or not gay marriage is recognizeable as the exercise of religious beliefs. If some church establishs a gay rite, then the state is bound to allow it. The question is how much trouble would Christians, Jews or any other group make trouble over the issue with whichever religious sect establishes the rite. The state can and should issue a hands-off warning if it sees that rite coming.

We have common law marriages recognized by the state as regards property rights, benefits eligibility and parental rights. The state establishes, de facto civil unions which are not recognized as religious sacraments for these and other reasons, but these are entirely independent of those rights guaranteed by the First Amendment. The rights and responsibilities of partners in civil unions and common law marriages are are defended for different reasons than that of a religious rite of gay marriage. Gay domestic partners should be considered similarly to common law partners for civil purposes.

Therefore the state should not *recognize* 'Marriage' any more than it recognizes 'Extreme Unction'. The state buries unidentified bodies in the ground but that does not make it a Funeral. The state recognizes civil unions bt that doesn't make them Marriages.

It is important that the state make it clear that its acceptance of any marriage rited certified by a religious body is only accepted in the same way as any other religious rite, balanced as they are against the state's compelling interest in domestic tranquility. The state does not or should not give standing to religious exercise.

Is then Marriage recognized by the state? I beleive that the state can substantially recognize all the qualities of marriage without endorsement of its articles of faith. And for this reason a civil union can in fact be functionally equivalent to a marriage. But it cannot be a marriage which is, as I've said, axiomatically ordained of God. All protestation to the contrary, Churches do have the equivalent of a trademark on the word, and those who seek the mask of respectability afforded marriage without the blessing of the Church, well they are on their own without God.

What then of the weddings of atheists? Are their marriages ordained of God? Strictly speaking, they are civil unions. A justice of the peace is not a priest, so when a state vests authority in a justice of the peace it is not establishing religion. Yet this is the gray area where my argument falls off a cliff. I hope to get a few hints as the subject progresses.

Posted by mbowen at July 1, 2003 06:27 PM

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