Marriage Equality Constitutionally Protected?

Should Nevada Get Government Out of Marriage?

By Erin Lale

There is a joke going around social websites that goes, “Three words to save the economy: Gay. Bridal. Registry.” The economic impact of Nevada’s loss of this market is no joke, though. In a tourism-dependent state going into our fourth year in a row of double-digit unemployment, we literally can’t afford to ignore any substantial market. Destination weddings in Las Vegas and other casino-resort cities directly support any number of businesses beyond the actual wedding chapels, including both big businesses like hotels and airlines, and small local businesses such as restaurants, dress shops, tuxedo rentals, limos, florists, bakers, caterers, plus the touring and shopping that guests would do while in town. Indirectly, the local economy would be positively affected by the money those bakers, drivers, waiters, etc. would then spend locally, on their homes, cars, clothes, food, utilities, entertainment, and so on, including the extra sales tax they would pay that would support Nevada government. Additional business could mean the difference between a local family keeping or not keeping their home, which would affect the children’s education and thus have ripple effects in our economy for decades into the future.

Both business and government spend a lot of money promoting tourism. The gay travel market is considered a lucrative market because gay travelers are more likely to be double-income-no-kids couples and therefore have more disposable income than average. Right now Nevada is losing a huge portion of that market to other states. In the 2012 election, Maine and Maryland legalized gay marriage, Washington state upheld it, and Minnesota defeated a proposed ban. Even gay travelers who are not planning to get married at their destination are more likely to choose to travel to states that have made a point of making them welcome. It’s human nature to like welcoming places better. States that allow them to marry are sending them an unmistakable signal that they are welcome and will be treated as human beings equal to all other human beings.

Respecting the rights of all people equally is one of America’s foundational principles. In practice, not everyone got the benefits of the equality blanket right away. The theory was sound from the beginning, however, and over the years the blanket equality of ‘people’ was extended to black people, and then to women, and then to Native Americans. Slavery was abolished, women got the vote, Indian tribe members became American citizens, and blacks could marry whites. Those second two things happened within living memory. History is on the side of extending legal equality to more and more groups of people.

Of course, the question of legal equality leads back to the question of why government is in the marriage business at all. Marriage as a religious sacrament is already defined by specific denominations, some of which recognize gay unions and some of which do not. A minister of a specific denomination is bound by the rules of his or her church as to whether he or she can perform a marriage ceremony for a gay couple, or poly family, or any other type of ceremony. Whether such a marriage is legally recognized is a matter of the clergy person becoming recognized by the local government as a marriage provider, and then filling out the required paperwork, and the couple buying a marriage license from the local government. It is perfectly possible to have a religious marriage that is not recognized by the secular authorities. It happens often, in fact, when local government bars minority religions from getting in on the lucrative wedding market, as our local government here effectively does by requiring local land ownership by a religious institution before recognizing its clergy. Denominations that allow same-sex marriages can perform religious marriages for gay couples even in states that ban them; such unions simply will not be recognized by the government. Why is government in the business of deciding which religions get official recognition, for this purpose or any other purpose? Is this not a violation of our Constitutional protection against the government establishing a religion or preventing the free exercise thereof?

Marriage as a secular contractual agreement for the purpose of owning property and raising children seems to be a more proper province of government than marriage as a religious sacrament, but the two are inextricably linked. The term marriage has historically been used to denote a couple living together, as in a common law marriage, whether ceremonially married or not, and whether government-registered or not. The term marriage has also historically been used to refer to the union of multiple people, as for example Abraham and his many wives, an arrangement which is illegal all over the United States. Perhaps, to avoid religious connotation of the term marriage and all the emotional freight that brings with it, the secular contractual agreement to own property and raise children should be called a civil union, regardless of who is in it, and the religious sacrament should be termed a marriage, also regardless of who is in it. Then everyone would be equal before the law, government would not be intruding on religion, and as an added bonus, perhaps unmarried heterosexual couples living in states that do not recognize common law marriages would have an easier time dealing legally with shared property.

Or perhaps we as a society should get government out of the marriage business entirely. That way, everyone is equal before the law, government does not intrude in on the province of religious sacraments, no one will have to pay government for permission to marry, and society can start treating household property and child custody issues with one system of equal laws for everyone, instead of a two-tiered system that privileges those who bought government’s protection with money in the form of a license. Households, after all, do not contain only people in a sexual relationship and their minor issue. Whether heterosexual or homosexual, people in a household together can include related or unrelated adults who are not in fact part of a couple, or a polyamorous family, or any other type of marriage or marriage-like arrangement. If we had a system of recognition of household rather than a system of government-approved marriage or civil union, married couples, unmarried couples whether in common-law marriage states or not, and all other kinds of households would all be treated equally. Government would no longer be inquiring about anyone’s sexual orientation, or race, before granting permission to marry, because no one would have to buy government permission. From the point of view of society, people would be married if they say they are and live as married people. Civil law would recognize household property ownership, and religious marriage would be its own separate system in which the government would not meddle. That is the option that increases freedom the most.

There are many people alive today who remember when it was illegal for blacks to marry whites in the U.S. The system whereby citizens have to apply to government for permission to marry is the system which perpetuated that unfair and unequal treatment. It is the same system which is now denying gays permission to marry. Marriage, however, is a natural right, part of the right to the pursuit of happiness enshrined in American’s founding documents. No one should need to buy special permission to exercise their natural rights.

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