Marriage and the Separation of Church and State

The current gay marriage debate is really a debate caused by a failure to enforce the separation of church and state. Two different aspects of the concept of marriage, that of religious marriage performed by the church, and that of legal marriage performed by the state, are brought into conflict by this debate.

Religious marriage should be wholly outside the purview of the state. The people getting married choose their church; no one is forced to marry in a church that does not respect their beliefs or their choice of relationship (at least, no one is forced by the state to do that; family is another matter).

Just as the state cannot legislate a church to install female or homosexual priests, provide abortion counseling, or worship a different deity, the state cannot legislate any church to bless a marriage that goes against that church’s beliefs. However misguided those beliefs may be, it is the right and the business of the church to set, discuss, and alter church policy. As long as the church’s policies aren’t in violation of existing law, or affecting non-church members, the state has no business interfering.

In other words, if the church of the Flying Spaghetti Monster wants to declare that marriage is an institution soley between a midget and an amputee, that’s their business. If non-midget or non-amputee members of the church of the Flying Spaghetti Monster have a problem with that, they can either take the issue to their congregation, or quit.

On the other hand, marriage conveys a number of legal rights in the eyes of the state; rights of inheritance, property ownership, power of attorney, the right to make decisions for the other person in the case of medical incapacitation, the right to adopt a child, citizenship, and so on. In many cases, these rights fall to close family members in the absence of a spouse. And some, like power of attorney or joint property ownership, can be granted between any two people, regardless of whether there is love, romance, sex, or marriage involved. Nothing about any of these rights is really contingent on the people involved being of the opposite sex, either. In the eyes of the law, marriage is a package of various legal rights.

Why not allow any two people to enter into any of these legal arrangements of their own free will?

In other words, if I want my brother to inherit my estate if I die, my mother to be able to make medical decisions for me if I’m incapacitated in the hospital, my business partner to have power of attorney, and to adopt a child with an old friend, I should be able to make those decisions as I see fit. Who I’m sleeping with, what gender they are, and how serious it is should have nothing to do with it.

Religious marriage should be left to the church, without state involvement. And the state’s concept of marriage should be broken up into its various legal components, and any two people should be free to confer each of those legal components on whoever they choose.