The government's Catch-22 on gay marriage

Oral arguments recently were heard at the Supreme Court of the United States on the issue of gay marriage. It is an issue most of us hoped would never reach that hallowed hall. As Justice Anthony M. Kennedy was quoted as saying, "What we have assumed as fact for a millennium I am not sure nine people should change." Indeed, we have all lived for a lifetime with certain assumptions regarding marriage. Now, the evolution of social law seems to be forcing change on us faster than we can assimilate it.

Homosexuality is one of the real moral issues of our time. For the most part, issues related to sex between consenting adults are judged by the courts to be private matters left to the individual. To most of us marriage is a religious ceremony where God unites a man and a woman in holy matrimony. Many believe marriage is a union between a man and a woman. The wording in the religious ceremony concludes, "What God has joined together, let no man put asunder."

The government, however, cannot deal with marriage as a religious issue. The first amendment to the Constitution prohibits such involvement. It says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Having been prohibited from involvement in religious related activities, the government must view marriage as a contractual process between two individuals. You secure a license, let an official of the government proclaim you married, register the license with the county clerk, and you are married in the eyes of the government. Ministers ordained by a church are authorized by the government to proclaim a couple married and to register the license.

Marriage, the family unit, children and all that is involved with that union involves regulation, taxation, protection of minor children, etc. In short, the government views the marriage agreement the only way it can, as a contract. And, the Supreme Court of the United States has ruled many times that individuals have the right to enter into contracts "on terms of their own choosing."

In an article in The New York Times on April 30, columnist Adam Liptak quoted Chief Justice John Roberts Jr. He said, "I am not sure it's necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" With those words it appears that Chief Justice Roberts sees the issue not as a "gay marriage" issue but, instead, as discrimination that would fit under constitutional standards for discrimination based on sexual orientation.

To the government, the issue of same-sex marriage seems to defy resolution. How can the government enforce the equality provisions of our Constitution and, at the same time, prohibit any individual from taking advantage of the right to enter into a contract? In short, how can the government prohibit consenting adults from becoming legally contracted/married?

Thus, in one of the major moral issues of our time the government is in a Catch-22 situation. They can't become involved in the religious event and they can't prohibit the enactment of a legal contract. The government can, however, deal with an issue of sex discrimination and that certainly appears to be the way the Supreme Court is approaching it.

Churches may, or may not, recognize same-sex marriages. The government may not interfere. The government, with its constitutional limitations, may be able to solve the discrimination issue but can't solve the moral dilemma for us. Like so many other issues we have faced before, it will require a personal, not a governmental, resolution.

Mark Hopkins is a Southeast Missourian columnist, whose columns typically appear in the Sunday Good Times section. Hopkins, a former Chaffee, Missouri, resident, can be reached at presnet@presnet.com. Books by Hopkins may be found in the Chaffee Library.