"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
- Article I, Amendments to U.S. Constitution (1791)
It's time for government to end its role in endorsing marriage.
If marriage is a sacrament of a church, as many religious groups claim, it's unconstitutional for government to impose legal standards on the ritual - in effect, establishing laws that interfere with the "free exercise" of a religious belief. By definition, government requirements for a "license" to marry intrude into a religious activity by defining and constraining the ritual - especially if lack of a license means a marriage is not recognized.
It may be a matter of semantics. But clear meaning to words used by government is essential to the validity of laws. Government needs to define what it means by "marriage," which must be differentiated from marriage as a religious ritual.
There is a difference. A number of state governments including Hawaii formalize the difference with laws that distinguish "civil unions" from "marriage." But then the states persist in issuing licenses for marriage.
The states should distinguish the government's interests in the concept of marriage, which is different from the interests of a religion.
Religious groups characterize marriage as a relationship sanctified by gods to serve a purpose, which is primarily the production and rearing of children who will mature into loyal believers in the religion. For couples married within a church, the relationship also reinforces religious beliefs, given the support and counsel - or indoctrination - offered by priests, ministers and fellow church members.
For a religious group, marriage of members is a way to strengthen and build the group's base.
Government, representing society in general, has an interest in couples who produce and raise children for legal concerns of responsibility. A woman who bears a child but is unable or declines to care for the child imposes the responsibility on government (i.e., society), which often defers to community agencies operating orphanages and foster homes. Some agencies are religious groups. Most will expect if not require financial support from the government.
Even when parents provide appropriate care of a child, government financial support can be required through Temporary Assistance for Needy Families and Medicaid. It is in the government's interest then to identify the man and woman involved in procreation to hold them responsible for care of a child. A marriage license is not required for that. Increasingly, there is no marriage involved.
There are other issues for government as well, when government provides judicial intervention in interpersonal disputes that occur in marriages over ownership of property. For governmental purposes, marriage involves a contractual relationship between two (or more) individuals over jointly owned properties. Legal issues extend to nongovernment institutions as well - employers who provide couples with spousal benefits or hospitals that need authorization to deal with medical decisions.
A marriage license is not required to define those relationships either. A signed notarized contract could establish rules of property ownership and partnership rights without the ritual ceremonies associated with romanticized couplings.
Government has an interest in civil unions as domestic partnerships with legal ramifications. Religion has an interest in marriage of individuals who will reinforce the philosophical underpinnings of the religion.
The U.S. government has no interest in promoting religious beliefs associated with marriage, but it will struggle with the romantic allusions of the term. There is a difference between "just married" and "just civil unioned."
* Edwin Tanji is a former city editor of The Maui News. He can be reached at hakumoolelo@earthlink.net. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.
