Problem #23: Gay Marriage

Problem #23: Gay Marriage

Just to clarify: I don’t think that gay marriage is, in and of itself, a problem. The problem is what the legal status of gay marriage is in the US.

First things first: I take a fairly libertarian view towards this, as I do with most social issues. But, more to the point, I take a clear constitutional approach to it, as well. I’ll express it as a syllogism:

• Marriage is a combination of a civil contract and a religious ceremony;
• Under unambiguous US law, the government can have no role in a religious ceremony, and civil contracts between any people are legal;
• Therefore, gay marriage is legal.

QED. To explain further, I’ve never heard any claims that churches that oppose gay marriage (or gay rights in general) should be forced to perform gay marriage ceremonies. From a legal sense, the fight over gay marriage must, by definition, be over civil, not religious, marriage. And, as per Jefferson’s wall, the government of the US (and states) can have no role in religion (or vice versa). Therefore, civil marriage must be a right for same sex couples as well as heterosexual ones.

Now, in the Federal system, states can have differing laws on various issues. But, under the Full Faith and Credit clause of the Constitution, marriages performed in one state must be recognised in all others. Therefore, even if a gay marriage cannot be performed in, say, Mississippi, this means that Mississippi must recognise gay marriages performed elsewhere. Frankly, I’m fine with that arrangement; let the states come to their own points of view on gay marriage, without imposing them from above. But guarantee that, even if a given state won’t license gay marriages within its own borders, it must give appropriate civil rights to those gay marriages performed elsewhere.