Is Marriage or the Constitution More “Sacred”?

Last week, the Maryland House voted to “shelve” until next year any debate or action regarding legalizing same-sex marriage. Of course, the church (mostly Catholic), the Black Democrats, and the Conservatives hailed this as a of victory for the sanctity of marriage. The strong reason given for the law’s “defeat” was that marriage is “sacred.”

What does ‘sacred’ mean?

According the etymological history of the term, sacred refers to making something holy or having been made holy: set apart, dedicated, bound, ordained; decree or enact — all with a strong sense of religious moral conviction. Typically, sacred things are untouchable in the sense that they are, in themselves, immutable. They cannot change because, in changing, they are not the same thing that was so holy or special.

Confusion of the Sacreds

Many of the people who are against same-sex marriage are viewing the institution from their religious perspective. Nothing wrong with that … unless it attempts to supersede the Constitution, a secular & legal document which guarantees freedom to those religious perspectives.

An example of a religious perspective superseding the constitution: Granting same-sex marriage “turns a moral wrong into a civil right,” as the rationale for misconstruing the civil institution of marriage and denying a right to tax-paying U.S., bone fide citizens.

The ‘sacred’ (“moral”) notion here is definitely one of religious beliefs; and asserting the religious sacredness is an assertion of religious freedom. Some of our laws, as guaranteed by the Constitution, exist to protect these religious beliefs — and protect the rest of us from being ruled by them.

And the confusion begins.

Laws are purposefully secular. We are a nation of laws established and governed by the Constitution, which had a strong motivation to keep religion and government separate. Laws are government; laws are civil matters. And the institution of marriage from a governmental standpoint is a civil matter, not religious. People have the right to vote their consciences, doesn’t matter from what source they flow. The seed of confusion starts when people confuse protecting their religious beliefs and enacting (civil) laws to impose their perspective on everyone.

It’s easy to see how that can happen. We have a supreme law that says the government must stay out of our religious lives. For many people, marriage is a religious thing, ordained and “created” by God himself. The divine origin of its holiness. Protecting their view of marriage — an institution we all depend on in this society in some way — is the same as protecting their religious freedom. Secularizing the concept to its simple civil import without the religious character is sacrilege to them because it invites non-believers or other-believers to partake without sharing the same ideology of holiness.

In most people’s mind, when they imagine a marriage, they imagine it taking place in a church. But for the state to supposedly recognize it, you have to have a LICENSE to go along with the civil portion. Then you are granted all the CIVIL privileges and benefits to form and sustain a household. The “state’s interest” in the matter is fostering mutual reliance and interdependence, rather than dependence on the state.

It also forms a contract, not only with each other, but with the rest of society!  The state and the people have expectations of you to which you agree by entering into a state- and society-recognized union.

As such a contract, marriage is an atomic building block of society. There are very few institutions as “sacred” as marriage, whether civil or religious. The religious ‘sacredness’ and the societal ‘sacredness’, however, are not the same, although the perceived values of marriage overlap in consequence.

Citizens are free — thanks to the Constitution — to regard marriage according to their religious & personal perspectives as they will, placing all kinds of restrictions on what their particular religion will recognize as valid and holy; but according to the Constitution, laws (civil matters) are applied equally. Period.

Sacredness of Sacred

From the civil/legal standpoint, there is no authority higher than the Constitution (because of its purpose and the tenets contained therein). It is sacred for all kinds of reasons, and is the holy of holies when it comes to what the US of A is as a Democracy. If the Constitution says that we are all equal under the law, and the laws pertaining to marriage are not being applied equally, then something is wrong … and it ain’t with the Constitution.

The Constitution and its protections and guarantees can only be changed by more than an act of Congress — it’s an act by the people over many many years of state-by-state deliberation. This is one way in which ‘sacred’ means nearly untouchable and immutable.  And the ‘sacredness’ in marriage as a societal institution, when we remove the religiosity, can only refer to elevated reverence and station within our societal framework.

Juxtaposed next to what establishes the US as a Democracy to be envied and copied around the world is the atomic building block of all societies: marriage. Marriage, tho, as a societal building block, need not have religion as a component to exist in fulfilling what marriage does within any society.

The institution, to be regulated by law, has to have secular justifications (even ones retrofit from religious beginnings) for it to allow for the huge diversity the U.S. contains. The laws must be, to be universal and applicable to all, utterly neutral when it comes to morality that is inextricable from religion. “Congress shall make no law respecting an establishment of religion…”  <See the Comment (below) marked “NOTE”>

So when a majority rules (with a law) to withhold equal treatment of our laws to groups of other citizens, it has to have a reason that excepts the rule from the Equal Protection clause of the Constitution. Such rules, to become law, require “heightened scrutiny.” But here, not only are we talking about a fundamental societal building block with one of the highest elevations in importance and station, but we’re also talking about the fundamental building block of what makes the U.S. the U.S.:  fairness and liberty for all, free of religious oppression.

In fact, it’s from the faked notion of “elevated station” that proponents of Prop 8 of California are arguing for opposite-sex marriage: majority disapprobation, regardless of individual reasons for opposing same-sex marriage or preserving opposite-sex marriage. (I say “faked,” because the proponents are trying to sanitize out the religious and bigoted reasons for the law so that it will be Constitutionally palatable.)

In arguing for same-sex marriage, no one is arguing that marriage isn’t sacred (elevated in its importance). It absolutely is for a variety of reasons. In fact, it’s because of this sacredness that the excluded citizens want to participate (which also, ironically, is doing more to “protect the institution of marriage” than the opposite-sex couples are doing with their 52%+ divorce rate, marriages of convenience, forced marriages, non-procreative sexual practices, swinging, etc.).

Is it the nature of things that are sacred to remain preserved forever the same,

-or-

Is there some form of super-strong reverence that inoculates it from corruption of its essential nature or purpose but allows gradual change on the surface?

The concept of marriage per se is not an enduring institution and a solid building block because of religious tradition. And nothing in allowing same-sex couples to enjoy marriage as an institution does anything to erode what forming a household for mutual interdependence and raising children (natural, adopted, or a combination of the two) in a stable, loving environment means.

The reasons given for decreeing that marriage be only between people of the opposite sex are up for debate; and we can rationally and respectfully consider allowing same-sex marriage because the outer crust of what we view as marriage has, indeed, changed throughout time. ‘Sacred’ when applied to marriage does not mean untouchable or unchangeable because, not only does it not mean the same thing to all people across the globe, but even within our own society — the one the Maryland legislators are operating within — the concept and its practice have changed.

Protect Me from Evil

A law that is established in accord with any religious principle is a theocratic law, or a law where (someone’s god) reigns. (theos: god; kratos: rule, regime, strength, government by  by 1825, coming to mean “priestly or religious body wielding political and civil power.”) If laws (and their enforcement) are the substance of government and if laws founded in religious principles are theocratic, then the more theocratic types of laws we have, the more of a theocracy we have. And to hell with the Constitution.

To suggest that how marriage operates in our society can’t change or that we can’t apply the civil legalities of marriage equally to all citizens of this country because it is ‘sacred’ is 1) wrong, 2) contradictorially ass-backwards. Something else is directing the protectionism of marriage, something from which the Constitution protects us all: theocracy.

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15 Responses

  1. An example of theocratic ruling includes the deliberate opposite of an explicit rule: Granting same-sex marriage “turns a moral wrong into a civil right.” So they’re willing to utterly overlook the Equal Protection clause in the Constitution for a civil institution. Yes, yes — marriages are typically conducted in churches, but that is actually the personal religious portion of institution, completely separate from being recognized by the state (and having a marriage LICENSE) and then being granted all the CIVIL privileges and benefits the state grants married couples who form a household.

    But to confuse the religious aspects with the civil aspects is simple ignorance of civil, legal realities.

  2. NOTE: “Congress shall make no law respecting an establishment of religion…”

    This has been construed as meaning, “Since there can be no federal law on the subject, there appears to be no lawful basis for any element of the federal government – including the courts – to act in this area. … the power to make laws respecting an establishment of religion, having been explicitly withheld from the United States, is reserved to the states or to the people.”… suggesting that we can have religious discrimination in our laws or laws based in religion in favor of a particular faith.

    This perspective construes “…and the free exercise thereof” as meaning “the people” (as a group) can do what they want in the “free exercise” of their religion, and that individual liberties are moot without group liberties. “Individual choice” as a collective in exercising their religion. “Within the states, the people are free to decide by constitutional majority the nature and extent of the state’s expression of religious belief.”

    Tyranny of the religious majority.

    The Constitution of California states: “The Legislature shall make no law respecting an establishment of religion.” Very clearly identifying the “legislature,” not the people, and not saying “no laws of any kind shall … “.

    So the question is: where does the premise come from that says no law shall be enacted that contravenes extended tenets of the Constitution? I don’t know — I’m looking. If it is true that laws respecting an establishment of religion are, indeed, lawful — just not by a legislature, but rather by a majority of “the people” — that many other liberties of individuals are in serious jeopardy.

    So far, what I have found is the 14th Amendment:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    To me, this still doesn’t say anything specific about laws passed by the people (not the legislature/Congress). Yet — depending on the soundness of my logic or the substance of my unschooled understanding — if laws, once enacted, are the responsibility of the State (the “government”) to enforce, then by enforcement, “establishment’ or “respecter” of religion has been transferred to the State, becoming unconstitutional.

    However, there is this notion of “incorporation” that suggests (right word?) that all levels of government are bound by the equal-protection clause. Laws passed by referendum (propositions) constitute a level of government and, as such, are restrained by the this Amendment.

    Keeping the State out of religious anything is what makes the notion of “religious liberty” (which is only implied in the Constitution) even possible. I mean, if you read the entire clause …

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    …wouldn’t ignoring the application with regard to religion also apply to freedom to “peaceably assemble” or even free speech? I’m smelling something similar here to how Christians (not picking on them, but rather as an example…) cherry pick through Leviticus to condemn homosexuality while conveniently ignoring all the other restrictions.

    Think about it: if a Prop 9 (let’s say, inventing a proposition) were to pass that said, “Homosexuals may not petition the CA Supreme Court for redress of being denied entry to the State universities or entry to any State-funded institution,” could such a municipality qualify for being part of the United States?

  3. Interesting article on “The Spectator” from a philosopher regarding the conflict between law and protection of religious practice.

    http://spectator.org/archives/2011/03/03/non-discrimination

    Some quotes (not bad, mind you, or antithetical to my argument…just collecting.)

    It is, however, much more of a prejudice to think that matters of sexual conduct can, in this way, be simply placed beyond moral judgment — as though they were not, for ordinary people, the very essence of the moral life.

    Throughout the article, he raises some decent points to surface the nature of the tension between law and religious practice, and he relies on the strength of different fallacies to bolster them:
    – False analogy (“We discriminate between people on grounds of their height, their age, their strength, their virtue, their looks.”)
    – Agumentum ad populum (“for ordinary people”)

  4. http://www.goodasyou.org/good_as_you/2011/04/g-a-y-exclusive-exposure-to-nom-could-lead-to-unintended-side-effects-national-organization-for-marriage-tour-organizerfac.html

    I once wrote or implied that all homosexuals are single, even if they had at some point or another, been legally married by the state. While in the eyes of the Catholic faith, these same-sex unions aren’t recognized as marriages insofar as holy matrimony is concerned, I retract this statement now that I have been able to see and distinguish and understand the differences between religious and civil marriage.

    Once you understand the great difference between civil marriage and holy marriage, there is not one valid reason to forbid the former from same-sex couples, and all that is left to protect is the latter.
    ~Louis Marinelli, NOM Tour master

  5. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence that what should be rendered to God does not need to be decided and collected by Caesar.
    ~Justice Robert H. Jackson, 1952

  6. The Sneaky Ways the Christian Right Has Entrenched Itself in Our Politics.

    http://www.alternet.org/news/150805/the_sneaky_ways_the_christian_right_has_re-entrenched_itself_in_our_politics/?page=entire

    ~~

  7. From Jon Stewart:

    I have to say, as someone who is not a Christian, it’s hard for me to believe Christians are a persecuted people in America. God-willing, maybe one of you one day will even rise up and get to be president of this country — or maybe 44 in a row. But that’s my point, is they’ve taken this idea of no establishment as persecution because they fell entitled, not to equal status, but to greater status.

    ~~

  8. March 17 2012 Facebook conversation …

    Take a look at this “argument”:
    Sanctity as defined doesn't work in the Constitution

    The FB thread:

    Ron Biggs
    It’s a cute argument and a great opening salvo for lengthier discussion! (It contains a few undisclosed assumptions that you’d have to deal with if you used this argument in an argument. Just sayin’.)

    Ned
    Of course the real issues here are equality and human rights. But the opening salvo must be to reiterate the separation of church and state because the opposition insists on basing their arguments on religious rhetoric. The breadth of ignorance and prejudice in this debate is astounding. I post op-ed pieces in support of my opinions on these issues knowing full well most people will not read them so I also post things that cut more quickly to the meat of the matter.

    Ron Biggs
    I’m sorry if I took the wind out of the sail (condescendingly) of your attempt to cut to the heart of the matter quickly. But I hold you to a higher standard than most. Even though you don’t expect many people to read your posting such things as this, I — having been one of the few — read them critically.

    Using arguments like this is maintaining the same “sound bite” character of what passes for debate in this country. So if I am one of those people who read your posts, I must be the wrong type of person who you are actually writing to.

    I agree whole-heartedly with the conclusion of the post’s argument, but I find the premises weak and not reflecting well on the quality of the conclusion. Understanding now that I am not your target audience, I will withhold my comments from hereon out.

    Ned
    Ron, please don’t stop. Anything that adds clarity to these arguments is not only welcome but needed. I’m a fuzzy thinker. You, my friend are not.

    Ron Biggs
    Ya know, Ned: I committed something that I hate when it is done to me — my first comment did nothing to add to the debate; it only colored it with reaction. Sorry about that. I know that when things like this are posted, it should be an invitation to expound and clarify.

    To that end, I will clarify. Gear up for some professorialization. (Is that a word?)

    “Sanctity,” while most often referring to religious values, really — as a foundation — refers to something held in highest esteem in such a way that it is unchangeable. Many people who hold a thing sanct believe that thing cannot change in the least otherwise it is no longer that thing, history of the thing notwithstanding.

    In the Pac. NW back in the 80s (I think it was), the State of WA got up in arms to counter a guy in Oregon by the name of Lon Mabon in his anti-gay crusade. (The WA movement was “Hands Off Washington”.) Anyway, in one of his arguments, he pointed at the dictionary definitions of homosexual and heterosexual, saying things like: See how the definition for homosexual has to do with sexual practice and the definition of heterosexual has to do with gender relationships?

    Dictionary definitions are written by the people (lexicographers) of the age, who write in the slant of the their day. That the definitions of homosexual and heterosexual weren’t parallel in their construction, to Mabon, was a sign from God that homosexuality was all about sex practices, which is selfish and self-destructive to the extreme.

    The problem with ‘sanctify’ is that things can be “holy” to a culture as well as to a religion. But people’s comprehension drifts between the two. The Constitution itself is also sanct. So when talking about “sanctity,” we have to listen to the arguments for what makes something sanct and then judge what religion has to do with it.

    So, the “meat” of the matter with this post, while pointing out the sanctity of the two matters — marriage and the constitution — is more about identifying where the drift or confusion lies in the populace’s thinking about WHY something is sacred.

  9. David **** (faceebook)

    Today there’s a problem of equivocation that didn’t exist when modern laws were made. Government entered the marriage business because there’s a secular interest in recognizing and giving benefits to families as a social institution. Marriage was the recognized way to construct a family, and culturally it was deeply tied to religious identity. Today, families exist without marriage frequently, and marriage has changed very much as not being about “settling down and starting a family” as about a general “loving relationship between two consenting adults”. The notion of marriage = family doesn’t really match modern expectations (for better or worse).

    That’s why I’ve thought that government should get out of the marriage business to break the now-obsolete equivocation, and have general domestic partnerships that any adults – of any gender, with any other, for any number of cohabitating individuals, regardless of family relationship – could have. That could cover anything from long-term roommates to two single moms living together raising their kids together to any sort of romantic partnership.

    To answer your question, people care because it’s a cultural institution with perceived transcendent value. Agree or disagree with another’s religion, it’s perfectly valid for them to assert that they find something to be holy, and it generally benefits society (as a matter of free exercise) if we can work accomodate religion. Here instead of working around religion, many seem intent to fight it, and that’s where the tension comes from. If anti-gay-marriage advocates were really essentially about policing others’ relationships, you’d hear as much about overturning Lawrence v Texas as Roe v Wade.

    Ron Biggs

    David,
    There’s a lot to agree with in your comment, but there’s also gray area.

    What you described as today’s marriage construct about two people basically hooking up without the formalities is not so modern. In fact, it was most often how things were done when you consider the vastness of humanity over time. Starting a household in the truest sense of biblical “help mate.” The starting point for “traditional marriage” is as arbitrary as is the types of marriage that there are. Then not only is there arbitrariness, there’s also selective attributes when going from “traditional marriage” to “biblical marriage.” The only way “traditional marriage” can be used to pertain to male-female unions is by its weight of occurrence over same-sex unions.

    Your statement about govt’s interest in recognizing marriage as a unit has also been around a really, really long time. The governing structures of basic primitive, aboriginal tribes did/do the same thing. Recognizing conjugal units is a form of organization within organization that carries with it responsibilities and is accorded respect (benefits) commensurate with the responsibilities. It is fundamentally an institution of societal organization and related governance.

    Even during the days when it had its strongest religious component, the Church was either barely distinguishable from govt or its control/influence over govts was profound. Talk about equivocation! We walk into the realm of prevarication. (“Prevarication” is not meant to be a segue to the next paragraph. Paragraph thesis ends here.)

    Judge Walker’s lengthy opinion and judgment had as an important ingredient your statement that the cultural institution (of marriage) with its word Marriage carries transcendent value. Calling a union anything other than Marriage makes it second-class and is treated second-class. The words and its implications have, indeed, transcendent value utterly independent of religious perspective.

    I conclude just the opposite from you: the Church should back off its claim to being the sole arbiter of marriage and allow it to be what it is: an institution of societal organization. If the religious institutions want to add a notation of sanctity to ceremonies that have been blessed by them, I recommend flavors of marriage. When we see names of education-titled individuals, we can see stacks of initials after their names in signature blocks denoting their status.

    Or maybe marriage certificates can bear the same branding to show the venue and the nature of the officiator. So when a religiously married pair talks about their marriage, they can include the designation to qualify the state of holiness they perceive their marriage to contain as a function of being blessed by a religion. Or maybe their certificates can have a seal (as they did in the Middle Ages), and they can refer to their marriages as “Sealed Marriage.”

    In the same vein, if a marriage is forged through religious means, their marriage should be annullable only through the same means. As it is, the number of divorces of sanctified marriages is astounding. Sanctity of marriage lives where sanctity is afforded. Let religion put its mouth where its heart is supposed to lie.

  10. Another suspicious element in trying to reserve marriage to heterosexuals from a religious perspective is: heterosexuals have no problem accepting a marriage between a man and woman from ANY religion. So Christians accept hetero marriages from Muslim proceedings; they also except marriages that did not involve a religious element in them.

    So the morality of hetero marriage over homo marriage is really only a function of opposite plumbing.

    Of course, this is not a new argument, and it has been stated before that even in atheist weddings, the principles of God & Nature are respected, in spite of being accomplished in moral ignorance.

    That argument is circular and retro-fit to prove hetero-only morality. It assumes what it is trying to prove (“begging the question”).

  11. But why do the authors and signers of the Manhattan Declaration feel the need to legislate what they feel is the “correct” kind of marriage, beyond their urge to make everyone conform to their idea of morality? Here are the so-called “social harms” of equal marriage that they cite:

    First, the religious liberty of those for whom this is a matter of conscience is jeopardized.

    The fallacies inherent in this argument should be obvious. A governmental definition of a social structure that disagrees with a religious one does not threaten anyone’s “religious liberty,” since it does not require anyone to accept it as a matter of belief. Religious objectors would still be free to refuse to refer to a same-sex relationship as a marriage, just as same-sex couples are perfectly free now to identify themselves as married.

    ~ http://source4politics.blogspot.mx/2010/12/manhattan-declaration.html

  12. “To redefine marriage is discriminatory towards those who hold the sincerely held religious belief that it is a sacred institution between a man & a woman.”

    —Illinois state Sen. Kyle McCarter (R), in response to the state Senate approving same-sex marriage in Illinois.
    ===========================

  13. To describe homosexuality as ‘unnatural’ – particularly from our culture which is almost defined by our deliberate disconnection from nature seems like the ultimate odd argument…

    ~ http://www.redletterchristians.org/are-there-any-solid-arguments-against-same-sex-marriage/

    ~

  14. When tradition is thought to state the way things really are, it becomes the director and judge of our lives; we are, in effect, imprisoned by it. On the other hand, tradition can be understood as a pointer to that which is beyond tradition: the sacred. Then it functions not as a prison but as a lens.

    ~ Marcus Borg
    .

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