Marriage: Right or Privilege?

Is marriage in the United States a right similar to the Freedom of Speech guaranteed under the constitution or a privilege allowed under the laws of each state?

Marriage in any form is not a right guaranteed under the constitution. Marriage is permissible under the laws of the state(s) in which we live. And with all privileges allowed under law often have specific requirements that must be met or maintained.

An example is the privilege to drive a motor vehicle. Driving is not a right and in order to operate a motor vehicle one must meet the age, testing and insurance requirements established by the state. I do not have a valid driver’s license and therefore cannot claim the right to drive knowing I have chosen not to meet the requirements established to do so lawfully.

In the same way marriage is a privilege with requirements that must be met under the law to be valid and/or recognized by the state.

There are various requirements for a valid marriage including age, genealogical (i.e., to marry a brother, sister or first cousin may be prohibited) and in most states the gender(s) of those seeking to marry. Currently, I believe there are only a few states that allow same sex marriages (Connecticut, Iowa, Massachusetts, and New Hampshire (2010)). There are also a couple states that recognize same sex marriages/ unions of other states (New York and Rhode Island). Other states allow civil unions (New Jersey and Vermont) and domestic partnerships (Maine, Nevada and Oregon).

There are numerous states such as Arizona and California (to name only a couple) whose state constitution’s ban same sex marriage outright. In these states there is no debate on whether or not same sex marriages are an option. This does not however, preclude discussions regarding civil unions and/or domestic partner laws that could provide the much sought after benefits for same sex couples.

Perhaps the question could be resolved by eliminating marriage as a civil privilege?

Marriage could remain a solely religious ceremony with civil unions or domestic partnerships defined as the civil/legally recognizable state of couples (heterosexual or same sex). If this were to become the standard then all couples would file for a civil union/domestic partnership in order to satisfy the states requirements. Those who marry within the confines of a religious ceremony would also have to file for a civil union in order for their unions to be recognized by the state for purposes of benefits, etc. This would neither take away from marriage as a sacred religious institution nor lessen the importance and protections of civil unions under the laws of our states.

As an example I would not currently need the states permission to marry under the beliefs of my religion but would need their recognition in order to benefit from the protections offered by the state, i.e., insurance, visitation and/or survivors benefits. I could marry within the context of my faith/religion and not have the union recognized by the state in the same way a civil divorce may not in all cases be recognized by the Church.

Roman Catholics as an example do not recognize divorce as being valid within the structure and practices of the Church even though civil law may allow couples to divorce. In the same way a couple who is granted an annulment under Church law (sometimes years later) would still have to file for a civil divorce/annulment in order for the dissolution of the marriage to be recognized under state law. The requirements for either an annulment and/or divorce are determined by whether or not the proceeding(s) are to be recognized for/by religious or civil authorities.

In my opinion individuals on both sides of the issue are getting caught up on the term marriage and how either side defines what it is or is not a valid marriage. Therefore, I believe it is possible to make the point moot by defining all civil unions the same while at the same time without taking away from one’s beliefs or faith surrounding marriage.

How would this affect us as a society?

In practical terms very little. States would authorize civil unions or domestic partnerships as the standard to recognize couples who seek legal standing and protections for their relationships. This would be the same for all couples regardless of gender. Marriage would remain a religious ceremony that in and of itself has no legal standing under civil law. A religious marriage could be registered with civil authorities and therefore become a civil union or partnership if and as provided for under the law. There are currently some states I believe that allow a same sex marriage in one state to be registered as a civil union in another as provided under law and the idea itself is not new.

If same sex proponents are serious about seeking the protections of heterosexual couples under the law and I believe them to be genuine in this desire. Then we as a society need to work together to provide equal status and protection while at the same time respecting the beliefs of others.

Can this be accomplished? Yes, if we are willing to come to the table without preconceived prejudices: anger and; unreasonable demands. If we are not willing to put the past behind us how can we work together to bring about the future?