Equal protection

Today, the Supreme Court heard oral arguments on the long awaited question of same-sex marriage.  The press has debated the issue so extensively over the past several years, and public opinion has moved so rapidly in support of such marriages, that when the Court finally reaches its decision -- whenever it is handed down, and whichever way it goes -- the event may seem anticlimactic.

The actual consequences of a decision against same-sex marriage probably would affect only persons in Southern and some Midwestern states with conservative populations and legislatures.  Even with respect to those states, however, whatever else the Court decides, it appears almost certain that the Court will hold that the "Full Faith and Credit" clause of the Constitution requires all states to recognize the marriage of any couple legally wed in any another state.

To me, the frustrating aspect of the legal debate is the apparent inability to recognize the distinction between civil marriage and marriage as a cultural and/or religious status.  Even Justice Kennedy, who has been on the "liberal" side of this and similar social issues, and who may well cast the deciding vote, worried aloud at today's hearing, noting that the definition of marriage

has been with us for millennia.  It’s very difficult for the court to say, ‘Oh, we know better,’

But marriage, as a civil institution, is a governmental creation, a grant of certain privileges to (and the requiring of certain duties by) individuals who choose to join together as partners. When it comes to ensuring fairness in the granting of governmental benefits, it is the highest duty of the Supreme Court to "know better."

The state isn't consecrating these partnerships, or calling down God's blessings upon them. It's conferring a status under civil law.

It may well be that historically (although with many historical exceptions) marriage has existed between one man and one woman.  It may well be that such a limitation reflects the religious belief of many or most Americans at this time in our history.  It may even well be that such is God's plan for human life and the rearing of children.

But the state does not endorse religious or cultural models, except perhaps unconsciously when those models are accepted without question by a vast majority of the population.  The state isn't required to recognize or authorize marriage, any more than it authorizes baptisms or confirmations or requires church attendance.  The government is free to leave marriage to the clergy as a purely religious rite.   But -- if the state wishes to authorize marriage as a civil relationship (perhaps as a means of ensuring the protection and proper rearing of children) -- with all the tax and other benefits that the status confers -- it must do so and confer those benefits subject to the Equal Protection Clause of the Fourteenth Amendment.

Legally, this conclusion seems obvious to me.  And I fail to see how permitting all citizens to marry interferes with the religious and cultural traditions that limit marriage to one man and one woman, any more than the government's allowing men to use a razor interferes with Hasidic strictures against shaving. 

Much of the argument and confusion about this issue seems based on the simple failure to differentiate between religious and cultural norms for marriage, on the one hand, and the government's constitutional duty to make civil marriage equally open to all citizens, on the other.