What Does The Law And Constitution Say?

Marriage was not necessarily even a religious ceremony. In some societies, the simple joining of hands with the intent to form a marriage was all that was required-- even today, many states recognize common law marriage as valid and non religious "City Hall marriages" are common. Marriages were quite often arranged by family members and women were usually not given the choice of who they were to marry. Their fathers or brothers or uncles made those arrangements and the women had little choice but to comply because they did not have the right to own property/land or to make legally valid contracts by themselves. Marriage has changed many times over the years. Most marriages in the US are now based not on financial gain or an increase in the social standing of the family but on love. Who we love is not something that we can control and certainly not something that the government has any right to legislate. Sadly, it wasn't until 1968 that Blacks around the country were permitted to marry Whites. It was once thought that allowing such marriages would destroy the family unit and would violate the laws of God and the Bible. Click here for our essay discussing the similarities between outlawing mixed-race marriages and Civil Same-Sex Marriages.

In the present day US, marriages often have both meanings: religious and civil. All marriages have a civil aspect since they are registered with the state and have legal and tax implications. Atheists can be married and have no religious aspect to their marriages. A religious aspect is not needed for a marriage to be legal. We know that marriage has a legal/secular component because even clergy state that they perform marriages "by the power vested in me by the state of...I pronounce you husband and wife". We also know that people can't go to their clergyman to obtain a legal divorce. These aspects of marriage are clearly the domain of Caesar thereby refuting the idea that marriage is solely the domain of the church.For gays, we feel that they should be able to have this type of marriage...where there are not necessarily any religious aspects, only the secular legal and tax aspects. Such marriages, like those done at City Hall, would not require the endorsement of any clergy and therefore clergy would in no way be required to perform such marriages in violation of their own religious beliefs. Those clergy who have no objections to such marriages may, in keeping with their own religious liberties and the liberties of the couple, perform a religious marriage ceremony. Since we have a separation of Church and State, the State has no right to favor one subjective religious position over another and therefore should not take sides in this matter using the force of government to approve one religious tenet over another.

According to the Fourteenth Amendment of the US Constitution, the laws of the US pertain to every US citizen and all are entitled to Equal Protection under the law. Governmental Acts,as well as legal contracts, that are validly made in one state are equally valid in any other state according to Article 4, Section 1 of the Constitution. This allows a married couple to move from state to state and not have to remarry in their new state because the validity of the marriage carries from state to state. When states began to push for equality for gays, Congress passed, and President Clinton signed, the "Defense of Marriage Act" (DOMA) which prevents the federal government from recognizing such marriages and exempts the states from their Article 4, Section 1 constitutional requirements to recognize each other's legal marriages. The problem with "Defense of Marriage Act" is that it is a federal statute and federal statutes can't overturn the Constitution. The federal government is still exempt from having to recognize such marriages, but the states are still required to recognize each other's legal marriages, even when those marriages would be illegal to perform in the second state. For example, some states allow first cousins to marry. Others allow 14 year olds to marry with parental permission. Other states don't allow either one or perhaps both such marriages, yet are still required under the Constitution to recognize them when legally performed in another state and the courts have consistently enforced that. DOMA will easily be found unconstitutional as soon as a gay couple from Boston divorces or files a joint state tax return in another state and sues if their marriage isn't recognized in their new state.

Some will argue that states are not required to recognize all licenses issued by other states. Legal, medical and contractor licenses issued in one state are often not recognized in other states. The state of New York does not even recognize drivers licenses issued in other states to minors. There is a difference between these "performance licenses" and "status licenses" such as marriage licenses. States are free to regulate performance licenses since the laws in one state may be different in another state regarding those areas of performance. States want to ensure that the licensees are familiar with local laws and practices in order to ensure the OBJECTIVE safety and rights of their citizens. "Status licenses", like marriage licenses, do not involve any type of performance though and therefore can in no way endanger the OBJECTIVE rights or safety of other citizens. There is therefore no valid or objective reason for states to regulate such via restrictive licensing. A more appropriate procedure than licensing would simply be registering. Registering would simply involve the couple filling out a form stating that they are of legal age and haven't been judged mentally unfit to sign contracts. There should be no other requirements. As stated previously, marriage is treated as a legal contract and contracts have always fallen under Article 4, Section 1's authority. There is no objective reason to prevent two adults who can otherwise sign legally binding contracts from entering into a contract of marriage.

By creating civil marriages, under the Fourteenth Amendment of the US Constitution, the government of the United States and of each individual state, must give each and every citizen the right to choose to marry. Our freedom of religion means nothing if we can't choose for ourselves the religion we wish to practice. Individuals may elect not to exercise their right to marry: a Catholic priest, for example, opts out of his right to marry by becoming a priest if he wishes to remain within the folds of the Catholic church. However, even a Catholic priest, if he so chose, could go to any courthouse in the US and take out a marriage license and be legally married. He may lose his status as a priest, but he would not lose his status as a legally married man. Even a convicted child molester can get a marriage license because the US Supreme Court's 1967 ruling striking down miscegenation laws declared that the right to marry was inherent in the right to the pursuit of happiness. But current marriage laws, which dictate that marriage must be between one man and one woman, effectively take that choice away from gays just as those miscegenation laws took away the choice of those wishing to marry adults of another race. They are denied the right to pursue their happiness through marriage. The Loving Case realized this and threw out those law imposing subjective race restrictions. That same logic used therein will likewise prompt the courts to throw out Federal and State laws imposing subjective restrictions on gays and thereby protect their right to pursue happiness through marriage.

Those opposed to mixed-race marriage and civil same-sex marriages claim that such are "Special Rights". Please click the link for an examination of that claim. Please consider the following from that case -

In Loving v. Virginia, 388 U.S. 1, 12 (1967), the Supreme Court struck down a state miscegenation (anti mixed-race marriage) law because it interfered with the constitutional right to marry:

"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

MR. JUSTICE STEWART, concurring.

"I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' McLaughlin v. Florida, 379 U.S. 184, 198 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court. [388 U.S. 1, 14] "

Should sex/gender really be different from race in the eyes of the law?

The case also gave the following details - "On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.' "

As you can see, the judge used his subjective religious beliefs (as well as the prevailing local culture and attitudes) as justification for the law and its punishments. D&C 134:4 and 1 Cor. 10:29 both condemn the use of subjective moral opinions being used to justify restricting the rights and liberties of others. Such opinions and culture have been used to justify outlawing not only mixed-race marriages, but also LDS plural marriage and now civil same-sex marriage. Prohibiting all three based on subjective moral sensitivities is wrong. Only objective logical reasons should be used to restrict rights and behaviors. No such reasons exist for outlawing any of the three.

Bruce R. McConkie, in his Doctrinal New Testament Commentary, gives us additional doctrinal support to oppose the banning of Civil Same-Sex Marriage. He discusses -

Matthew 22:15-22, Mark 12:13-17 and Luke 20:22-26. He states -

"How better could the Master Teacher proclaim his doctrine of separation of church and state than he did here in avoiding the trap of the Pharisees and Herodians?
These scheming and hypocritical "spies" offered Jesus these two alternatives as possible answers to their diabolically clever question: (1) Say, 'Yes, pay the hated poll tax to Rome as the law already requires,' which answer would cause the Pharisees to inflame the people against him. Or: (2) Say, as the sect of Zealots taught, 'No, Israel is a theocracy; God only is her King; pay no tribute to a foreign power,' in which event the Herodians would have delivered him "unto the power and authority of the governor," charging him with sedition and rebellion.
But from his lips instead came the decree: 'Render unto God and Caesar their own.' That is, in this present world where wicked men will not repent and come unto the fulness of the Lord's perfect order of government, there must be two separate powers - ecclesiastical and civil - the one supreme in spiritual matters, the other in temporal. Neither power can dictate to the other. And men are subject to them both."
(Bruce R. McConkie, Doctrinal New Testament Commentary, 3 vols.,[Salt Lake City: Bookcraft], 1:600,601.)

The civil and legal rights and benefits pertaining to marriage are clearly the domain of government (Caesar). Religious belief and doctrine have no right to infringe on the rights and liberties of others. D&C 134:4 confirms this.

We seem to forget about the children of same-sex couples. These are innocent kids who have done nothing wrong and yet society withholds their needed legal protections. These innocent victims are simply "collateral damage" in a war against equality and for subjective morality. Even if some say this is legal, is it moral?