Same-Sex "Marriage" Is Not a Civil Right
by James W. Skillen

A gay-marriage advocate in Boston explained to a radio reporter that marriage is a civil matter, not a church affair. Those who want church weddings can have them, but marriage is a matter of civil law. And since it is unconstitutional to deny equal civil rights to citizens, it is unconstitutional to deny to homosexual couples the right to marry.

At this important moment in the U.S. debate over same-sex "marriage" and the likelihood of a long campaign to try to add a marriage amendment to the Constitution, it is important to evaluate the grounds of the arguments. In particular, we need to be clear about what constitutes a civil right.

It is certainly true that the contention over marriage is about civil law. Marriage law has long been a state matter, and in the United States that has meant, literally, a state rather than a federal matter. In any case, the law has until now taken for granted that marriage is an institutional bond between a man and a woman. Moreover, marriage is something people of all faiths and no faith engage in. Churches, synagogues, and mosques may bless marriages but they do not create the institution. In that sense the question of marriage is not first of all a religious matter in the sense in which most people use the word "religion."

However, to insist that the question of marriage is a matter of civil law and not first of all a religious matter does not take us very far. After all, the argument is about what government ought to do about keeping or changing the legal definition of marriage. The debate is not between husbands and wives within the bond of traditional marriage—like a court case over divorce and child custody. No, this debate is about whether the law that now defines marriage is itself good or bad, right or wrong. And to join that debate one must appeal, by moral argument, to grounds that transcend the law as it now exists. In that regard, the question of marriage is not about a civil right at all. It is about the nature of reality and interpretations of reality that precede the law.

Those who now argue that same-sex couples should be included, as a matter of civil right, within the legal definition of marriage are appealing to the constitutional principles of equal protection and equal treatment. But this is entirely inappropriate for making the case for same-sex "marriage." To argue that the Constitution guarantees equal treatment to all citizens, both men and women, does not say anything about what constitutes marriage, or a family, or a business enterprise, or a university, or a friendship. An appeal for equal treatment would certainly not lead a court to require that a small business enterprise be called a marriage just because two business partners prefer to think of their business that way. Nor would equal treatment of citizens before the law require a court to conclude that those of us who pray before the start of auto races should be allowed to redefine our auto clubs as churches.

The simple fact is that the civil right of equal treatment cannot constitute social reality by declaration. Civil rights protections function simply to assure every citizen equal treatment under the law depending on what the material dispute in law is all about. Law that is just must begin by properly recognizing and distinguishing identities and differences in reality in order to be able to give each its legal due.

One kind of social relationship that government recognizes, for example, is a free contract by which two or more parties agree to carry out a transaction or engage in some kind of activity. Let's say you contract with me to paint your house. The law of contract does not define ahead of time what might be contracted; it simply clarifies the legal obligations of the contracting parties and the consequences if the contract is broken. Governments and lawyers and the law do not create the people, the house, the paint, and my desire to paint your house for a price that you want to pay. The point is that even in contract law, the law plays only a limited role in the relationship. The law encompasses the relationship only in a legal way.

If someone wants to argue that two people who have not in the past been recognized as marriage partners should now be recognized as marriage partners, one must demonstrate that marriage law (not civil rights law) has overlooked or misidentified something that it should not have overlooked or misidentified. For thousands of years, marriage law has concerned itself with a particular kind of enduring bond between a man and a woman that includes sexual intercourse—the kind of act that can (but does not always) lead to the woman's pregnancy. A homosexual relationship, regardless of how enduring it is as a bond of loving commitment, does not and cannot include sexual intercourse leading to pregnancy. Thus it is not marriage.

The much disputed question of whether same-sex relationships are morally good or bad, healthy or unhealthy, is beside the point at this stage of legal consideration. The first question is about identity and difference. This is the material legal matter of properly recognizing and identifying what exists and distinguishing between marriages and auto clubs, between schools and banks, between friendships and multinational corporations. It has nothing to do with civil rights.

To recognize in law the distinct character of a marriage relationship, which entails sexual intercourse, involves no discrimination of a civil rights kind against those whose bonds do not include sexual intercourse. Those who choose to live together in life-long homosexual relationships; or brothers and sisters who live together and take care of one another; or two friends of the same sex who are not sexually involved but share life together in the same home—all of these may be free to live as they do, and they suffer no civil rights discrimination by not being identified as marriages. There is no civil rights discrimination against an eight-year-old youngster who is denied the right to enter into marriage. There is no civil rights discrimination being practiced against a youngster who is not allowed the identity of a college student because she is not qualified to enter college. There is no civil-rights discrimination involved when the law refuses to recognize my auto club as a church. A marriage and a homosexual relationship are two different kinds of relationships and it is a misuse of civil rights law to use that law to try to blot out the difference between two different kinds of things.
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