Quote:
Originally Posted by Rekna
If a church wanted to marry a gay couple what is stopping them? It seems to me that anyone wanting to stop a church from doing so would be interfering with the freedom of religion.
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Therein lies the crux of the matter.
Strictly speaking, I could start a church of Mars and decide to marry whomever I please. I could even decide to only marry homosexuals, and wouldn't that be fun?
Trouble is, those marriages under the current law wouldn't be legally recognized, and thus would confer none of the legal benefits.
If the state got out of the marriage business entirely and adopted a system like common-law partnerships, that would be one thing. Two consenting adults could do whatever they want, and subject to some base requirements (in Canada it's living together in a conjugal relationship for a pre-determined period of time, which varies depending on which government entity you're dealing with) that would be good enough. If they wanted to add marriage through a religious institution, that would be their lookout. This is a system that I think would work, but it doesn't seem terribly likely that it will ever exist; marriage is a deeply rooted institution throughout North America (and the rest of the world, for that matter). So if we're going to continue to use marriage as a legally recognized pairing, then in order for it to be just that status must be available to all couples, regardless of who they are or what their beliefs are. Anything less is a civil rights violation, because it creates two separate classes, which is a prerequisite of systemic abuse or oppression.
As of right now, the United States federal government recognizes marriage as only a union between one man and one woman (Defense of Marriage Act, section 2: "The federal government defines marriage as a legal union exclusively between one man and one woman."). Further to that, most of the states fail to recognize any other possible pairing either. So even if a gay couple managed to find a church that would marry them, it wouldn't be valid legally. The current case is set up to challenge Prop 8, and therefore reverse that in California.
What I'm wondering is if Prop 8 is determined to be unconstitutional, would that be grounds to then challenge the Defense of Marriage Act on the same principle? It seems to me that it would, but I am certainly not an expert here.