Though heterosexual, I was both saddened and angered at the passage of Proposition 8. In California it takes a two-thirds majority to pass a tax law, i.e. the state taking personal material property from an individual; but it takes a mere majority to deprive someone of a civil liberty. Supporters of Proposition 8 were angered by the State Supreme Courts’ “thwarting the will of the people” in overturning a previous anti-same-sex marriage Proposition. In Federalist Paper 10, James Madison, considered the Father of Our Constitution and author of our Bill of Rights, writes that one of the key purposes of our Constitution was to [restrain the ability of] “a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens.” When all else fails, it is the role of our courts to protect the rights of individuals.

The phrase “a wall of separation between church and state,” referring to the 1st Amendment, comes from a letter Thomas Jefferson wrote to the Danbury Baptist Association in 1802. The Danbury Baptists were a religious minority in Connecticut who complained that in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature. Historically it was the Baptists, forerunners of today’s Evangelicals, who fought hardest for the 1st Amendment understanding the risks when the will and passions, the tyranny of the majority, can be entrenched in law.

Many of the arguments of gay-marriage opponents are religious in nature. Nothing in the California court’s decision affects how religious groups treat marriage. Religious institutions are, and will always be free to choose whom they will and will not marry. In modern societies, marriage is both a religious sacrament and an institution recognized under civil law. Though they may overlap in appearance, they are quite separate. Without a marriage license, a marriage ceremony performed by a religious body is not recognized by the state. The reverse is also true: religious denominations are under no obligation to recognize a civil marriage performed by a justice of the peace (or a civil divorce).

Many claim that legalization of gay marriages is a threat to the institution of marriage. Ask yourself these questions: If gay marriage is legalized, do I intend to abandon mine? If gay marriage is legalized and I am currently single, will I drop any future aspirations of getting married? Obviously, the answer to both is a resounding NO! In fact, according to a Nov. 4, 2004 New York Times article “the lowest divorce rates are largely in the blue states: the Northeast and the upper Midwest. And the state with the lowest divorce rate was Massachusetts, home to same-sex marriage. Kentucky, Mississippi and Arkansas, for example, voted overwhelmingly for constitutional amendments to ban gay marriage. But they had three of the highest divorce rates in 2003, based on figures from the Census Bureau and the National Center for Health Statistics. In 2003, the rate in Massachusetts was 5.7 divorces per 1,000 married people, compared with 10.8 in Kentucky, 11.1 in Mississippi and 12.7 in Arkansas. The Barna Group, a California organization that studies evangelical Christian trends, has produced two studies about divorce that found that born-again Christians were just as likely to divorce as those who are not born-again Christians.” In a recent book by Jonathan Rausch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, the author argues that pervasive separate-but-equal strategies weaken the institution of marriage more than marriage for all because of the inevitable appeal of “marriage-lite” [cohabitation] to heterosexual couples who might otherwise marry.

Another argument used is that “traditional marriage” is for procreation. So what do we do with couples who don’t have children? Should a marriage license automatically convert to a domestic partnership/civil union license after, say, five years without children? And should senior citizens only be offered a domestic partnership/civil union license? Where do we draw the line?

One of the key arguments against same-sex marriage is the claim of protecting children. Yet, there is no credible scientific evidence that children are harmed by growing up in a gay family. Gender identity does not stem from one’s upbringing, though love, compassion, and acceptance certainly do. There are many thousands of children in this country living in single parent families, many of whom live in poverty; many thousands of other children living in extremely abusive two-parent heterosexual families; and many thousands more languishing in foster care. Surely, being raised by two loving, committed same-sex parents is better than any of the above. Arkansas, a state with three times as many children who need homes as people willing to adopt or foster them, just voted in a measure to prevent unmarried, cohabitating couples from adopting or fostering children. The ban affects all unmarried couples but was written with the intent of preventing same-sex couples from raising children in Arkansas.

Some parents were afraid their children would be taught about same-sex marriage in our schools. Somehow this would undermine what they teach their children at home and through their respective “churches.” Yet we teach our children that polygamy exists in the world, that other religions exist, even the existence of atheism. Teaching that same-sex marriage exists is no more an endorsement than teaching about other religions or cultures. How much difference would there be teaching that domestic partnerships/civil unions exist between committed loving couples of the same gender? If people are so insecure in their personal faiths and lifestyles that they feel threatened by the teaching of the existence of other faiths and cultures, then perhaps we should ban from our history and civics courses all references to the diversity of religions and cultures in our world. That would certainly prepare our children for living in a pluralistic society and world.

Many proponents of Proposition 8 view one-man-one-woman marriage as coming from the teachings of the Bible. However, marriage existed long before the Bible was written, and in some form in all human societies, including polygamy (even in the Bible), age of consent, laws against interracial marriages, banning of divorce, etc. Proposition 8 is about denying the right to civil marriage. Many of these same proponents claim they support domestic partnerships/civil unions entitling gays to all the rights and privileges of marriage, just not usage of the specific term. Is one to believe that $40 million was spent simply to claim a monopoly, a copyright, on the usage of the word “marriage?”

Make no mistake Proposition 8 is a direct assault on freedom of religion and the 1st Amendment. We leave clerical titles up to their respective faiths. Religious seminaries do not need any type of state accreditation. Not only do we recognize clerical titles in general, included as options on surveys, and other official papers; but recognize them in our courts. Rabbi Cohen, Father O’Malley, Reverend Jones, all are addressed by their clerical titles, not “Mr.,” “Mrs.,” or “Ms.” While lawyer-client privilege is the only one recognized in common law, both the states and federal courts recognize, with some exceptions, the “sanctity of the confessional” and cannot compel clergy to reveal what has been said to them by their congregants. This is the 1st Amendment at work, civil society recognizing religiously granted titles and privileges.

Many religious groups support same-sex marriage. It would certainly be an infringement of their religious freedom to ban them performing the sacrament of marriage. However, without a marriage license conferring civil recognition, marriage ceremonies performed by religious groups would have no “legal” standing; but shouldn’t we still allow the couples to call themselves married if their respective churches performed the ceremony? How does this differ from the granting of clerical titles?

In countries dominated by the Catholic Church, divorce is illegal. I respect their right to enforce this for members of their faith; but should their interpretation of the Bible be extended to our civil laws and liberties? Should our civil society and civil rights be decided by a simple majority’s religious view?

So why not leave it at domestic partnership or civil union law? The word “marriage” is a public declaration of affection and a special commitment to one other person. It’s a powerful word. Having different terminology for different groups represents unequal treatment before the law, the civil law. As opposed to “marriage-lite” (cohabitation), the public commitment inherent in marriage by gays would serve to reinforce the special nature of the institution of marriage.

One solution not currently contemplated would be to change the law: instead of granting a “marriage license” to straight couples and a “domestic partnership/civil union license” to same-sex couples, grant everyone the latter. Then, following a public display of commitment, either before a justice of the peace or a member of the clergy, couples would receive a “marriage certificate”: the witnessed public display of commitment would allow them to call themselves married. In my view, as with the recognition of clerical titles, this would be in accord with the spirit of the 1st Amendment.

Americans like to brag that we are the freest society on earth, with the greatest constitution ever written. Separation of church and state as well as protecting the rights of minorities elements of that freedom are crucial factors behind the strength of religion in the United States. Because the Founding Fathers disentangled religion and government, we have a greater variety of worship and more believers than any other industrialized country in the West. As a civil institution, same-sex marriage is not a threat to any religion. In a society proclaiming itself free, with equal protection under the law, the right of consenting adults to decide whom they wish to commit themselves to in a public declaration of marriage should be obvious.

What amazes me is how easily the public can be galvanized to join in on campaigns aimed at infringing on the rights, liberties, and life styles of others based on misperceptions and faulty logic when there are so many other issues that genuinely merit our time, attention, and financial contributions. For instance, in this country there are millions of children who go to bed hungry at night, who live in poverty, who lack health care, who live in dangerous environments, and who receive substandard educations. With so many pressing issues, with so many “real” problems in our society, why do we continue to focus on emotional issues and straw men? Perhaps, just perhaps, the people benefiting from the inequities in our society are content to keep our attention and energies focused elsewhere.