As 2013 came to a close the divisive issue of gay marriage once again was raised in Utah as a judge took it upon himself to overrule the votes of 66 percent of Utahns and the 10th Amendment of the United States Constitution by declaring that Amendment 3 of the Utah Constitution violated parts of the United States Constitution.
Under the 10th Amendment of the United States Constitution the federal government is given specific and limited powers, the amendment further goes on to state that any powers not specifically given to the federal government and not prohibited by it to the states are reserved to the states and the people respectively. Here in lies the basic issue, the definition of marriage is not a power delineated to the United States and therefore falls under the 10th amendment since the Constitution does not prohibit the definition of marriage from the people or the states.
Many people believe that because of this the judiciary has no standing to adjudicate the issue. To further complicate the issue both sides appear to have valid arguments.
On the one side the pro gay marriage advocates raise the argument that gays are being denied equal protection under the law and on the other side of the debate, the anti-gay marriage advocates voice equally valid arguments that marriage is a sacred ordinance instituted by the very same God that condemns homosexuality as an abomination and therefore marriage can only be between a man and a woman and that the protections of concern are available under contract law.
While I am fully cognizant of the position of my church, most of the Christian world, and for that matter the position of most religions where homosexuality is concerned, my position is that I am not God, therefore, I will make no judgment of people based on their sexual preference. I believe that is an issue between a person and his or her God and will leave judgment up to God. In my mind and conscience I separate the secular and religious issues involved. That having been said, I believe that the secular issue of equal protection under the law needs to be addressed but that to address it in relationship to this issue one needs to examine the basis for governmental involvement in what is basically a private matter between two individuals.
Civil "marriage" was essentially instituted to make clear the lines of inheritance particularly for the nobility and royalty. As society became more complex it evolved into a social/legal compact based in contract law vesting special rights, privileges, protections, and responsibilities on and between the parties involved and in time became divorced from the original ordinance and its religious context. As can readily be seen in this brief history of the evolution of the term "marriage", the line between the secular and religious use of the term became blurred over time leading to the current confusion of the meaning of the term.
If the parties in contention over the issue are sincere in their positions; equal protection on one side and protection of a sacred institution on the other, then I would like to propose a simple, and I believe, elegant solution that fully responds to both sides.
I would like to call upon the governor and legislature of the state of Utah, as well as the governors and legislatures of all the states, to take the bold move to abolish marriage licenses and marriage certificates currently associated with civil marriages and replace them with civil union licenses and certificates of civil union which would inherit all the legal protections afforded under current laws associated with marriage licenses and civil marriage certificates. This, I believe, would fully respond to concerns over equal protection under the law since all individuals who seek a union of any sort would be required to obtain a civil union license to secure the contractual protections and those individuals who wish a sectarian ceremony to document the union would receive a certificate of civil union from the state to document it. This would take the entire issue out of the courts and the Constitution settling it once and for all.
I would also call upon the religious leaders within the state of Utah and, for that matter, throughout the United States to issue certificates of marriage when a union complies with the doctrinal requirements of the faith under which the ordinance is performed to provide documentation of this religious union. This, I believe, would fully respond to the concerns of those that believe that "marriage" is a sacred ordinance instituted by God between a man and a woman.
The elegance of this solution is that it clearly delineates what previously was called a marriage into two separate and distinct entities, one being strictly civil and contractual and the other being strictly religious.
The only reasons that I can see for objection to this simple solution would be that the two sides are insincere in their concerns; that the one side is not seeking equal protection under the law but the forced validation and acceptance of their lifestyle upon people who sincerely believe, for religious reasons, that the lifestyle represented is wrong and that on the other side the true motivation not being the issue of constitutionality nor the protection of deeply held religious beliefs but is an antisocial prejudice against those whose lifestyles or beliefs are different from their own.
While my proposed solutions don't address the issues of federal government and judicial overreach I believe they do begin to address the current issue.
I am told that articles I write are occasionally brought to the attention of the governor and that sometimes he agrees with the things I've said and sometimes he disagrees with them. I hope this article is one that is brought to his attention and is one that he agrees with and takes under consideration.