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OpEdNews Op Eds    H4'ed 4/18/09

New York Governor Paterson Introduces Gay Marriage Bill

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Message Nicholas Smith

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One of the great benefits of taking courses in constitutional law is that I've gained a greater understanding of the rights it confers to us as citizens and residents. Among several issues that I've grappled with over the years, I've finally resolved my thinking with regard to "gay marriage."

As far as the government is concerned, I don't believe in gay marriages. I don't believe in heterosexual marriages either. In fact, I don't think government should have been in the marriage business in the first place.

Most marriages are defined by religion and "legalized" by government. Others have no religious basis; these are typically called civil ceremonies. Most of the marraiges we hear about are heterosexual and have the backing of some religious institution. These institutions often preclude the union of same sex couples. If government substantiates such heterosexual marriages, is it doing so at the constitutional expense of homosexual couples?


The debate among religious folks such as myself has been misguided. The argument has been that government should not compel religious communities to accept gay marriages. I agree. Save for the Vatican, the Dalai Lama, and maybe the Church of England, religions are mostly non-governmental undertakings controlled by private figureheads. Many countries distinguish between government leaders and religious leaders, although some policy pursuits have religious grounding. However, the intersection of religion and politics in the United States, for example, fails when religious leaders argue that government should be used to preclude the marriage of homosexual couples.

Said differently, some argue that government should not, in the case of Christian marriages, alter 2000 years of history in favor of a minority of people who want it changed. I agree. While this is a sound argument, using government to realize this point is wrong.

In fact, in the context of government, I don't even like to call these unions "marriages." They should simply be called unions. the definition of marriage should be left for the church.

In Loving v. Virginia, the Supreme Court established that "marriage" is a constitutionally protected fundamental right. Measures that curtail this right are presumptively invalid, and they won't be upheld unless one shows an overwhelming government interest. In error, our government has rejected this analysis when it comes to gay unions. By recognizing both heterosexual and homosexual unions, government would not redefine religious marriage, but would define the legal civil union. There should be a separation between the two: private marriages and civil unions. Otherwise, government is likely to discriminate against homosexuals with regard to Equal Protection and the Full Faith and Credit clauses of the Constitution.

This dilemma exemplifies why there should be a greater separation between Church and state, and why I'm proud to call David Paterson my Governor. Last week, it was revealed that the Governor introduced a bill to recognize both heterosexual and homosexual unions. The bill would confer the same rights no matter one's gender. It is about time.

Previous efforts at the federal and state levels have been a total embarassment, including President Clinton's signing of the so-called "Defense of Marriage Act." The law, passed in 1996, shields the federal government from having to recognize gay unions. In other words, Democrats have supported legal discrimination against gays trying to receive the various privileges and benefits of a legal union.

I can't help but think of the ridiculous argument that goes something like this, "You've now given marriage rights to homosexuals. Where is the line drawn? Should we be giving rights to pedophiles? Polygamists? " Such backwards thinking deserves no response.

Surprisingly, my view has support from an unlikely source: Steve Schmidt, a manager of John McCain's Presidential effort. Schmidt's recent quote: "It cannot be argued that marriage between people of the same sex is un-American or threatens the rights of others...On the contrary, it seems to me that denying two consenting adults of the same sex the right to form a lawful union that is protected and respected by the state denies them two of the most basic natural rights affirmed in the preamble of our Declaration of Independence - liberty, and the pursuit of happiness."

He concludes, and so do I,

"That, I believe, gives the argument of same sex marriage proponents its moral force."

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Nicholas Smith is a former Commissioner for the City of Berkeley, CA. He is currently a law student in New York City, and blogs about the day's headlines at
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