Marriage, Equal Protection, and the Separation of Church and State

On Monday, the state supreme court of Connecticut (one of four states that observes civil unions for homosexual couples) became the first in the United States to hear arguments concerning the charge that the establishment of civil unions creates an inferior status for gays and lesbians. The argument moved quickly to the question of whether the doctrine of equal protection covers discrimination against homosexuality. Jane Rosenberg, assistant attorney general for the state, said no. It’s a policy question to be determined by legislators and not court fiat, she argued. Bennett Klein, an attorney representing eight homosexual couples, disagreed. He contends that the question goes to the heart of equal protection doctrine.

The core of the dispute turns on the question of whether homosexuals deserve special legal protections on the basis that they are a suspect class, a categorization requiring evidence of a history of discrimination and political powerlessness. If it were determined by the court that homosexuals constitute a suspect class, then the state would have to present a rational basis or some compelling interest for distinguishing between homosexual and heterosexual couples.

But there is a more important issue here. Should the state be conferring upon anybody, homosexual or otherwise, the status of marriage at all? In arguing his case, Klein noted that “marriage is not just a bunch of legal rights.” Indeed. Marriage is more than this—it’s a religious status. In a country founded on the separation of church and state, what in God’s name is the state doing? To be consistent with the principles of the country, the state should only recognize civil unions—a legal contractual arrangement between two consenting adults. In other words, the problem goes well beyond the state denying couples religious status. The core problem is the state awarding religious status to citizens of any sort.

It’s really quite simple. If a couple wants to get married, then all they need to do is find a church that will marry them and perform the ritual. If they want the state to recognize them as domestic partners, then they need to apply for a civil union and have a justice of the peace join them together. Keep the state out of religious ritual.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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