June 23, 2018
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Government and marriage: Time for a separation

By David Casavant and J. Douglas WellingtonSpecial to the BDN, Special to the BDN

It is evident that neither side of the fight over same-sex marriage is prepared to yield. This is unfortunate. Far too many individuals who strive for recognition of their committed relationship are being accused of undermining society; far too many individuals who genuinely care about marriage are being accused of bigotry.

Gay rights groups, such as Human Rights Campaign, view gay marriage as an issue of equality, with same-sex couples “deserv[ing] the ability to protect themselves with basic legal rights and safeguards such as Social Security, health insurance and unquestioned hospital visitation.”

Traditional marriage groups, such as Stand for Marriage Maine, believe “existing marriage laws exist to strengthen society, encourage monogamous and loving marriages and to provide an environment to nurture the well being of children.”

Despite last year’s vote on same-sex marriage, this subject continues to be contentious in Maine and across the United States, with both sides relentlessly fighting for their beliefs. Opponents of same-sex marriage in Maine were successful in defeating the law enacted by the Maine Legislature with Question 1. Through the people’s veto process, Mainers expressed their wish to overturn the same-sex marriage law by 53 percent to 47 percent.

The people in 30 other states have voted against same-sex marriages. Of the states allowing gay marriage, Vermont and New Hampshire enacted legislation; Connecticut, Massachusetts and Iowa allow gay marriage as a result of court decisions. As a reaction to such court decisions, 39 states have passed laws that define marriage as solely between a man and a woman, and 29 of them have amended their constitutions to reflect those laws.

Proponents of gay marriage continue to challenge these laws. A lawsuit in the federal courts disputes the constitutionality of California Proposition 8, which defines marriage as being valid only between a man and a woman. If this case finds its way to the U.S. Supreme Court, the decision could affect the marriage laws of all 50 states.

It should be understood that not all laws treat everyone equally. A law or act that discriminates among groups or individuals violates the Constitution only if there is not sufficient government basis for the particular action. Setting aside accusations of bigotry or harm to society, the fundamental analysis relates to the bases for government recognition of marriage. Even with respect to marriage, states have recognized a legitimate purpose in limiting that privilege depending on age and nature of family relationships. Most readers would view this as appropriate discrimination.

At one time, determining the role of government in marriage might have been easy. In years gone by and based on the mores of the time, people could envision government fostering long-term, heterosexual marriages for the purposes of promoting a stable environment for offspring. The Maine statute on marriage states that Maine “has a compelling interest to nurture and promote the unique institution of traditional monogamous marriage in the support of harmonious families and the physical and mental health of children.”

However noble and worthy the sentiment, numerous heterosexual marriages end in divorce. Quite appropriately, there are no punitive measures for unwed mothers. Even government social assistance is not geared toward ensuring the stated interest of promoting heterosexual marriage and may actually encourage single parentage. In many respects, heterosexual couples have done a great deal to weaken the justification for government’s role in marriage. And yet, the current debate is whether to extend that role to same-sex couples. Citizens are caught in battle over a governmental status designation that may no longer have a meaningful function.

Is there a way to resolve the dispute? While at first blush the solution may appear radical, the answer seems quite clear — marriage should no longer be a governmental function. All couples, heterosexual and homosexual, should register as under the current Maine statute for domestic partners. This would allow couples, whether heterosexual or of the same sex, to obtain the benefits of health insurance, inheritance, hospital visitation, etc.

The institution of marriage would be exclusively a religious issue. Even if a gay person’s religion does not recognize same-sex marriage, that person would still be free to live with a partner with all the same civil rights as a heterosexual couple. If a gay couple wishes to be “married,” then they are free to join a religion that blesses same-sex marriage.

We believe the registry approach appropriately acknowledges the role of government based on well-established practices of our society. It removes the state and the people of Maine from the battle lines that have been drawn over same-sex marriage and establishes an appropriate protocol for government.

We encourage all readers to assess the matter from a perspective removed from this emotionally escalated dispute. If you agree with us, contact your legislators to suggest this solution to bring an end to the ongoing battle surrounding same-sex marriage.

David Casavant of Hampden is a lawyer who has been married to his wife for 19 years. J. Douglas Wellington of Castine is a lawyer who has been married to his wife for 29 years.

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