By Seth Richardson
In 1992, Amendment 2 to the Colorado Constitution tried to bar the state from granting “minority status, quota preferences, protected status or claim of discrimination” to gays. That Amendment was overturned as a violation of the right to equal protection under the law by the Supreme Court in 1996. In 2006, Colorado voters approved Amendment 43, which says “only a union of one man and one woman shall be valid or recognized as a marriage in Colorado.” Amendment 43, petitioned onto the ballot, won by a 55 to 45 percent margin. This Amendment has not been successfully challenged in the courts, and remains part of the basic law of the land in Colorado. In that same election, voters turned down Referendum I, the Colorado Domestic Partnership Benefits and Responsibilities Act, which provided legal rights to same-sex couples, by a 52 to 48 percent margin.
Today, state Senate Bill 172, which would create a right to a civil union giving any two unmarried adults, regardless of gender, substantially the same legal rights as married persons winds its way through the legislative process. The bill has passed the Senate, but faces an uphill battle against conservative Republicans in the House.
Senate Bill 172 should become law because it resolves the primary infirmity of Referendum I, which was its specific reference to same-sex couples. But this should only be a stepping stone to the ultimate goal, which should be to extract the state from regulating marriage at all.
As early as 1691, marriage laws in America were imposed for blatantly racist reasons. Miscegenation laws barring marriages between whites and blacks and other minorities, and which controlled marriage among minorities were the genesis for modern marriage licensing by the state, and such laws endured until 1967. The Supreme Court overturned them in Loving v. Virginia, where the court resounding rejected the Virginia Supreme Court’s claim in 1965′s Naim v. Naim that the State of Virginia had legitimate purposes “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” The Supreme Court held:
“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
As a civil institution regulated by the government, it is argued that marriage between one man and one woman, deserves special, exclusive status, preference and privilege in the law because such regulation “strengthens the family” and “provides stability for the individuals, their families, and the broader community.”
Notably absent from such assertions is any critically robust evidence that providing fundamental equality under the law for other forms of domestic partnerships in any way impairs the goals associated with protection of the marriage relationship.
In essence, those who object to civil unions between non-married individuals are falsely claiming that marriage and civil unions are somehow a mutually-exclusive zero-sum game where the rights of heterosexual married persons are disparaged or harmed by the extension of rights to other couples who choose a civil union over marriage. In short, if gays are allowed to enjoy certain legal rights and benefits under a civil union law that are also enjoyed by married heterosexuals, some undefined and vague harm would be perpetrated on society as a whole.
This zero-sum argument is, of course, utter nonsense and factually speaking is based in the same sort of irrational bigotry, hatred and fear of homosexuality that is manifest in the ruling of the Virginia Supreme Court in Naim v. Naim. Replace the word “race” with “sex” in the Supreme Court’s ruling and the parallels become clear. It’s also important to note that not every intimate personal relationship is about sex, homosexual, heterosexual or otherwise.
Moreover, according to Supreme Court precedent, government has no legal right to pry into the sexual preferences or otherwise-lawful sexual practices of anyone. The assumption that the only possible reason two people might want to form an intimate personal bond is for sex is a prurient, prudish, Puritanical and entirely unconstitutional criterion upon which to base public policy.
Many people choose to live in close relationship with others completely outside the traditional bounds of marriage and procreation and sex, and they deserve to have the right to enjoy legal protections afforded to other familial relationships including rights of survivorship, medical decision making, assumption of debts and filing of claims for wrongful death.
For example, a brother and sister, or two sisters or brothers, or other close relations who cannot marry, like an uncle or aunt, or those who may be divorced or widowed may wish to meld their families together insofar as the legal rights and protections they wish to enjoy for perfectly rational and practical reasons not involving sex.
Or an uncle may wish to take financial and legal responsibility for, and assign legal benefits he is entitled to receive to his brother’s widow and children, or to his widoed sister and her children. Traditional marriage laws do not allow this sort of beneficial, but entirely non-sexual assumption of mutual responsibility and benefit that provides stability for families, children and society as a whole. A civil union law would. There are many reasons why two people who do not wish to, or cannot be “married” to desire to bond themselves and their families together for mutual protection and benefit, particularly in these hard economic times.
Why should a single man who does not wish to, or cannot marry for religious reasons (for example, a Catholic man or woman who is sterile and cannot be married in the Catholic church) be denied all ability to benefit from and contribute to a close family relationship? Suppose such a man wishes to assign benefits like his pension or medical insurance benefits to a widowed female friend or relative who is struggling to support her children. Those rights and benefits, which he has earned and which would automatically accrue to his legal spouse were he married, cannot be likewise assigned to someone he cares deeply for, but does not wish to or cannot marry. Why should the children be deprived of the benefits that he wishes to voluntarily assign for their benefit merely because he’s not married to their mother? Is not the stability of the woman and her children, and society, better served by the State acknowledging and ratifying a contract for a civil union that reduces the burden on the taxpayers that might otherwise have to provide social services benefits and entitlements to the widow and children?
Marriage is, at its core, the melding of two individuals in a spiritual, religious, intimate and loving relationship that is neither amenable to or an appropriate subject for governmental interference or regulation. It is a contract between two individuals, and perhaps their God, if they are believers. It is only marginally the province of government regulation.
Because marriage is fundamentally spiritual and religious in nature, under the Establishment Clause of the First Amendment, the State must have a “compelling need” to regulate marriage at all, and it must only regulate marriage in ways that both achieve only the legitimate governmental objective and do so with the minimum possible regulatory interference with what is a constitutionally-protected religious practice.
Only when it comes to the protection of the rights of children, and the orderly dissolution of the relationship and distribution of marital assets does the government have any legitimate interest in regulating any intimate domestic relationship. It is not within the proper province of government to regulate religious and spiritual matters like marriage in order to provide “stability for the individuals, their families, and the broader community.” It is up to the individuals to provide their own stability and it is their right to conform their intimate personal relationships however they believe it will best serve their fundamental right to pursue happiness.
The only other legitimate role of government in such relationships, irrespective of the gender of the parties, is as a recorder and enforcer of a written civil contract that details the rights and responsibilities of the parties who have come to a meeting of the minds about how they wish to construct and live their lives. Stability in both relationships and in society and fundamental fairness are indeed better served by requiring that such intimate relationships be carefully constructed as written contracts that specify the nature, duties, rights and duration of the contract that are legally binding on both parties and which may be enforced by the State when a breach of that contract occurs.
Therefore, where our society should be headed is towards the complete withdrawal of the State from the regulation of “marriage” as a personal, intimate, spiritual and/or religious institution, which is best left to the partners or their respective religions.
The Colorado General Assembly should not only pass Senate Bill 172 into law, but it should also amend and/or repeal every mention of the word “marriage” and replace it with the words “civil union” in our statutes.
Marriage then becomes a matter beyond the pale of civil law, as it should be, and squarely the province of religion and personal commitment alone, while at the same time, the legitimate and reasonable regulation of the legal aspects of intimate domestic relationships, which are within the power of the State to regulate, provide equal protection and due process to everyone.
And it also respects the will of the voters by removing from the ambit of government authority the recognition of marriage by the state. Those who wish to be married may be married simply by representing themselves to be married. But that representation would not grant them any legal rights or impose upon them any legal obligations. For that to occur, they must have a civil union contract specifying the rights, duties and obligations of each partner recorded by the County Clerk.
Fairness for all, and the orderly administration of law and justice would be best served by limiting the State’s role in intimate relationships to recording and adjudicating civil contracts.
© 2011 Altnews