Tuesday, September 21, 2004

COLUMN -- Government should stay out of marriage question

Posted by Craig Westover | 5:47 PM |  

Pioneer Press
Jan. 18, 2004

I have a great deal of respect for state Sen. Michele Bachmann. Her tireless efforts in education reform and holding the line on the state budget are admirable. So it is very respectfully, but very adamantly, that I disagree with her proposal to place before voters an amendment to the Minnesota Constitution that essentially denies "gay marriage."

I do not make this argument as a supporter of gay marriage, but rather as an ardent advocate of individual liberty. One has a far better chance to live by conservative principles if government has only limited powers to interfere with private life — even if limited government means enabling others to live lifestyles a conservative might not agree with. I agree with Sen. Bachmann that "marriage" should not be redefined; but perhaps it is time to define "civil union."

"Marriage" is a sacrament and a religious institution. Tracing the descent of marriage in legal terms, the concept was first usurped by secular government as a convenient means for ordering legal activities such as inheritance rights, legal titles, defining certain benefits and determining certain legal obligations. Nonetheless, at its heart, "marriage" is a religious function and ought to remain that.

In other words, "marriage" is whatever a church and its parishioners define it to be (based, a conservative hopes, on scriptural authority). That is none of the state's business, my business or Bachmann's. A religious ceremony should not confer any legal rights whatsoever.

The state, for example, does not offer special legal privileges to those who are baptized, neither does a Bar Mitzvah confer the legal right to vote and order alcohol.

Instead of a constitutional amendment diluting sacramental "marriage" with a watered-down legal definition, Minnesota and individual liberty would be better served by a new definition of "civil union," which applies to all couples.

Instead of a secular marriage license (which is little more than yet another excuse for the state to collect a fee without providing a needed service), why not a "civil union" license with teeth. A civil union license, which must be signed by every couple desiring to have its relationship recognized by the state (regardless of religious standing), would be backed by legislation that defined all legal benefits, rights and obligations of the union.

In essence, a civil union would be a binding contract between partners in the union and between the partners and the state. The couple could modify the standard document — as marriage can be modified by a prenuptial agreement — but in absence of such modification, the legislatively determined "civil union" is the controlling authority.

This approach preserves the sanctity of traditional marriage while acknowledging the individual rights of all people to form lasting personal relationships subject to state laws.

One final point: The notion that the question of "gay marriage" is subject to majority rule is wrong. A basic American premise is that the majority cannot deny unalienable rights to minorities, and choosing a life partner is indeed an unalienable right. Banning gay marriage is the same level of government intrusion as the state legislating the number of children a couple may have based on government's judgment of the couple's ability to support them.

Liberty involves risk. One's ability to live life as he or she chooses is best served by ensuring that government cannot interfere in private decisions — even if that means enabling others to live their lives in a manner that one may or may not agree with or even regard as morally correct.

I would urge those with moral objections to "civil unions" to step back for a moment and separate the properly private and properly legal aspects of the debate. The proper question is not, "Do gay couples have the same rights as heterosexual couples?" The proper question is, "Does government have the legitimate authority to deny gay couples the legal rights granted to heterosexual couples?" To the proper question I say that although a tyrannical majority may usurp government power to deny such rights, it certainly does not have legitimate moral authority to do so.