Written by Mike Wolf   

I originally wrote this editorial in 2009. I do not believe it has ever been published. I am posting it here, unedited, unrevised, and otherwise in its original state. I will update my views, as applicable, in comments.

The debate over same-sex marriage in the United States is a not a healthy debate, because one entire side of the debate bases their stance on a grossly incorrect assumption. That assumption is that "marriage" is a religious institution. And until those opposed to same-sex marriage purge the notion that they are debating a religious matter from their minds, we cannot have a fair debate on the subject in this nation.

Yes, marriage is a religious institution. But not in the eyes of the law. They are two separate institutions. Anyone who gets married should know this. When getting married, two things happen (in your typical marriage that is), a ceremony is conducted, and legal paperwork is completed and the marriage registered. The manner in which my step-mother recently remarried is quite exemplary of this: she was legally married in November, then participated in a religious ceremony the following February. She was first married in the eyes of the law, then, months later, she was married in the eyes of God.

And this is where the same-sex marriage debate falls apart. Those in opposition to same-sex marriage do so almost certainly because they cannot separate the two institutions: the legal institution of marriage, and the religious institution. The legal institution provides legal rights and responsibilities for the couple, and the religious institution provides moral rights and responsibilities. The Proposition 8 campaign in California demonstrates quite clearly that the debate was over moral issues, for it was the Mormon Church, a religious institution, which was the primary opposition to same-sex marriage.

But the United States Constitution is quite clear on this matter. While it may seem that US law recognizes a religious institution, that cannot be the case. The First Amendment states that Congress shall make no law regarding the establishment of religion. This separation of church and state makes it quite clear that the institution recognized by the law is a legal institution. In the eyes of the law, the religious institution of marriage does not exist. Given this, there are two significant things that now can be understood about the debate on same-sex marriage.

The first is that, barring legal recognition, same-sex couples, lacking the ability to have a formalization of their love for and commitment to each other as recognized by a legal bond, must seek to formalize their bond through religious ceremony. In other words, barring the legal institution of marriage; same sex couples can only seek recognition of their bond through the religious institution of marriage. If the people of the United States cannot recognize their bond, then God will. And this does happen, far more often than most people believe, as there are many churches that recognize same-sex marriages and perform ceremonies, and have for decades.

The second aspect this reveals is that because same-sex marriage opponents misconstrue that marriage is a religious institution, they are attempting to use the law to religiously discriminate, to prevent same-sex couples from seeking a religious recognition of their bond and love for each other. This is the basis for the current legal efforts to defeat the amendment to California's Constitution which Proposition 8 created. The plaintiffs who are seeking to invalidate the amendment in the US Supreme Court are arguing that the amendment was written specifically with the intent to discriminate based on the Fourteenth Amendment which outlaws discrimination in state law. But their arguments only present half of the story. If they were to also argue that Proposition 8 is in violation of the First Amendment in that it seeks to prevent same-sex couples from marrying based on the religious institution; the matter would be easily resolved. Such an argument would require establishment that the proponents of Proposition 8 put the matter on the ballot, and that it was voted for, under the assumption that "marriage" is a religious institution. Given the campaign's biggest backers, and the language of the proponent's advertising; I'd venture to guess this would be an easy argument to prove. The Supreme Court would then quite easily conclude that Proposition 8 was an effort to establish religious doctrine and thus is in violation of the First Amendment.

Curiously, if same-sex marriage opponents are in fact thinking in terms of the religious institution of marriage, then their efforts to bar same-sex couples from seeking legal recognition of their bond to each other is driving them to seek recognition through religious ceremony; the exact opposite effect of what they want.

The debate for same-sex marriage desperately needs an understanding by all that marriage, in the eyes of the law, is an institution which establishes a formal and legally recognized bond between two loving people who have decided to share their lives together. The debate needs to be conducted with the understanding that the religious institution of marriage is not the same as the legal institution. This does not mean changing the meaning of the word or substituting another word for the legal institution, it simply means understanding that when it comes to the debate of laws regarding marriage, that the religious institution is wholly separate, and not at all a part of the debate because America grants every individual the right to religious freedom. In that regard, the debate over the religious institution, and whether to grant it to same-sex couples, should be constrained to the church.

I will be bold and predict that if people can separate the legal and religious institutions of marriage, and set about debating whether or not same-sex couples should have the same access to the legal institution of marriage; that people will in fact recognize the importance of allowing two loving adults, regardless of their difference in race, religion, or gender, the same access to rights, protections, and responsibilities of marriage in the eyes of the law as everyone else.