Sunday, March 16, 2008

Are all marriages unconstitutional?

Following the ongoing hearings in the California Supreme Court regarding gay marriages has sent me down some interesting thought-trains about the case in particular and the institution of marriage in general. The lawsuit has been brought by same-sex couples and the City of San Francisco demanding that the state of California recognize same-sex marriage.

Do note that California already recognizes "civil unions" between same-sex couples and affords them all rights except the title of marriage. On that basis, many have argued that gay couples should suck it up and live without the right to marry while enjoying other legal and economic benefits of domestic partnership, till the time comes that public thought on same-sex marriage evolves.

For a long time, my thoughts on the issue were similar - since marriages have historically been endorsed by religious institutions, and since the religious establishment universally is far less understanding of homosexuality than society in general, gay marriage is simply not a reality as of today. Indeed, most opposition to gay marriage is on the basis of religious convention.

However this very connection between marriage and religion has made me rethink my stance over the past few days.

If marriage is essentially a product of religious convention, then what right does the government have of endorsing or rejecting marriage between two individuals in a nation with a constitutionally coded separation of religion and state? An extension of the same argument is that it is unconstitutional for the government to endorse marriage even between couples of the opposite sex. As far as the state is concerned, civil union should be for all and marriage for none. Needless to say, religious institutions being independent bodies have complete right to marry people as per their respective charters, but the state has no right or obligation to accept those contracts.

On the other hand, if marriage is not an institution with a religious basis as I thought it was, then the issue seems to reduce, again, to a cut-and-dry question of constitutionality, unclouded by social convention or majority opinion. And since the US constitution says nothing about marriage, the question is simply whether the state has a right to give or take away a privilege based solely on discrimination of gender. My guess is that the answer is no.

NB: Read an excellent summary of the affair here.

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