June 2, 2000 (Ira Pilgrim)
I was sitting with a little girl of eight one afternoon. She looked up from her Hans Andersen and said, "Does m-i-r-a-g-e spell marriage, Mr. Ade?" "Yes, my child," said I.
The first amendment to the constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, at the time that the state of Utah was applying to congress for admission to the union, there was a question about whether Utah should be admitted because the Mormons practiced polygamy. Polygamy is no longer sanctioned by the main stream Church of Jesus Christ of Latter Day Saints, but it was then.
Polygamy usually exists in places where women have few, if any, rights. They are considered as property and a man can have as many cars, houses, or wives as he can afford. However, wives are expected to work. A woman I knew who grew up in Utah during the polygamy days told me about a man who married two sisters in the morning and had them hitched to a plow that afternoon. In farming communities women worked, and they worked hard. In some parts of the middle east, being a part of some sultan's harem may be a heck of a lot better than being the wife of a working farmer.
Jews and Christians are monogamous by custom, although there is a biblical precedent for polygamy in the case of king Solomon and several other kings of Israel.
When something other than monogamy is part of a religion or culture, the constitution specifically forbids government interference with it. Should a religious sect practice same-sex(or is it gender?) marriages, the federal government is forbidden to interfere, in conformity with the constitution and a custom of strict separation of church and state. The California state constitution has an identical prohibition.
What then, is the reason for having government involved in marriage at all? Why do we have marriage licenses? The answer is that it has nothing to do with religion or culture; it has to do with property rights. Property includes homes, goods, and even children. Until they reach the age of consent, children are considered more as property than as people. Consider how children are dealt with in divorce settlements. California has community property laws that state that partners in a marriage own everything jointly and on the death of one person, all property and money goes to the surviving spouse unless some other mutually-agreeable arrangement has been made in advance. In a country where only about half of all marriages continue until "death does you part," there is some question about the sanctity of marriage.
Proposition 22, which passed in the last election, amended California's Family Code to read "Only marriage between a man and a woman is valid or recognized in California." My guess is that it will be declared unconstitutional because it conflicts with the freedom of religion section of the state constitution.
The state of Vermont has just passed a law that give same-sex couples all of the legal and civil benefits that married people now have. They don't call it marriage and that is the way it should be.
Let's leave marriage to God and the clergy; they deserve it.
Return to the Law and Lawyers Home Page
Return to Ira's Home Page