By Martin van Nostrand
Roman Catholics, Hindus, Muslims, atheists, Jews, Scientologists, and any other faith or cultural group can be married in the United States of America. An ornate wedding conducted in a grand cathedral of a Roman Catholic Church has no further legal standing than a simple wedding conducted in the living room of a house by any individual authorized to conduct weddings. (In Maine, this can simply be an attorney.)
This is because marriage is a contractual obligation entered into by two consenting adults. As with any contract you have an offer (that of being married), an acceptance (that of agreeing to be married), and consideration (both parties agree to certain responsibilities that come with the marriage contract). The contract is unique in that it conveys both a promise to each party involved in the union and the granting of certain rights by the state to the parties involved, yet it is still just a contract. Religious belief, or lack thereof, plays no legal role in the completion of this arrangement. If the parties involved would like for the marriage to include religion they may decide that the ceremonial aspect of their wedding be couched in their respective belief structure.
So why then is the completion of this marriage contract deemed invalid by a state due to the fact that two consenting adults are of the same sex? Most state statutes (including Maine) specifically state that marriage is a union between a man and a woman and therefore any underlying agreement to marry by a man and a man or a woman and a woman would be an illegal agreement and contracts can not be formed to complete an illegal transaction, right? The state, through the statutory process, has made the completion of a contract to marry impossible for same sex couples. Same-sex couples may not enjoy basic state benefits of the marriage contract that heterosexual couples do enjoy.
An individual’s right to enter into private contracts free from government interference is fundamental and protected by our Constitution. Courts have addressed this issue and found that the marriage contract is not the same as the word contract used in common law or statute. The Court in Wade indicated that marriage is an institution about which the state is “deeply concerned” and takes a profound interest. Why would the Court argue that marriage is a contract but not a contract that is addressed by the Constitution? While most modern constitutional arguments against same-sex marriage prohibition have focused on Equal Protection (this is another very strong constitutional argument but not the focus of this analysis) an argument also exists that the Court in Wade was incorrect (they did, after all, concede that marriage is a civil contract for certain purposes).
So, for the sake of argument, let’s say that marriage is a contract (albeit a unique one). The Supreme Court has outlined a three-part test in determining whether a law violates an individuals due process by infringing on their right to contract. First, the law must substantially impair a contractual relationship. Second, the State must have a significant and legitimate purpose. Finally, the law must be reasonable and appropriate for its intended purpose#. Where does same sex marriage fit into this test? Statutes that forbid individuals rights to freely marry who they choose certainly substantially impairs a contractual relationship. Same sex couples do not enjoy the same benefits that are granted to hetero-sexual couples by the State. So what is the legitimate purpose and is the law reasonable for that purpose?
Asked differently, why do most State statutes indicate that marriage is between a man and a woman? What organizations are opposed to same sex marriages? Religious organizations are the number one opponent of same-sex marriage in America. The Mormon Church alone spent millions of dollars in successfully defeating same-sex referendums in California and Maine. Churches throughout Maine took to their altars to denounce the sin of homosexuality and passed donation plates out for the purpose of funding their homophobic agenda. The churches were quick to the pulpit in screaming about the protection of family values (never mind that heterosexual Maine couples were divorced at an alarming rate in 2009, second nationally only to Nevada!) and even elected officials at the highest levels proposed for a call for a constitutional amendment by dangling religion and family values to a gullible and homophobic constituency.
Religion, which plays no legal role in a marriage, is used by proponents of same sex marriage to convince the State (and if not successful the general population of the State by referendum) to defeat same-sex marriage initiatives. Let me say that again: Religion, which plays no legal role in marriage, is used by proponents of same-sex marriage to convince the State to defeat same sex marriage initiatives. Is religious belief a legitimate purpose for having a law that interferes with the right to freely contract? Would we pass laws that say we can allow children to marry at the age of 8 because a religion says we should? Further, if the argument is that same-sex marriage would defeat the standards of family values and that marriage would be weakened by same-sex marriage, then the numbers do not support that fact. For one, the idea that homosexuality is wrong is again based on a religious belief. Secondly, heterosexual couples get divorced! Roman Catholic heterosexual couples get divorced! Families are already dealing with divorce rates that are very high.
Therefore, since marriage is a contract, the government should not have the right to interfere with that private right and in fact the Supreme Court test for when a government can step in cannot be supported on its face.
Make no mistake, same-sex marriage is banned in the vast majority of US States because of religions beliefs. The religious organizations use their pulpits, their money, and their influence over their congregation to spread their belief that same-sex marriage is “wrong” and nobody has stepped in to explain that their organization is not in any way legally involved in the rights of two people to form a marriage contract! The United States government, and by extension state governments, simply cannot stand on the sidelines and allow their laws to be written in such a way as to expound religious principles when discussing private individuals rights to enter into contracts.
