Guest Columnist Brian Addison recently brought to the lbpost.com the interesting story of CSULB Professor Andrew Lohmann, the personal difficulties and dilemmas he and his wife were experiencing due to the recent passage of Proposition 8 and the solution they had arrived at to address those difficulties and dilemmas.
Brian does an excellent job of describing the circumstances surrounding the Lohmann’s newfound dilemma as well as the solutions they arrived at, and I encourage my readers to read his guest column entitled “A Different Perspective on Proposition 8” as published here on the lbpost.com on January 29 before proceeding to read this column that I have published in response.
For those who are still not aware of my own position on this; I neither supported, nor voted for, Proposition 8. I opposed Proposition 8 on purely Constitutional grounds. I am referring, of course, to the U.S. Constitution and not that of California.
In my, admittedly novice, opinion: consenting adults, irrespective of their sex or sexual orientation, who seek to be married one to the other are, or should be, permitted to do so under the “religion” clause of the 1st Amendment.
Here’s my interpretation: Consenting adults who seek to be married are seeking to have their union “solemnized”. That is to say; such individuals seek to transcend simply engaging in a legally binding civil ceremony, which can be conducted by any judge or commissioner through the County Clerk’s office. Such civil ceremonies are not what most people who seek to be married desire.
These persons desire, instead, to attach solemn significance to the assertion of their commitment to one another. Such persons are, therefore, exercising a “religion”, which Webster’s College 4th defines as “Any system of beliefs, practices, ethical values, etc”.
The “religion clause” of the 1st Amendment is quite unequivocal in its admonishment that Congress (and, by extension, the States) shall make no law respecting the establishment of religion **or prohibiting the free exercise thereof**” (emphasis added).
This term “solemnize” and derivations of it is specific language found throughout our State’s Family Code, that body of laws governing marriage in California. By employing such language in its body of laws, California rightly acknowledges marriage to be an aspect of religious practice. Federal, State and Local government are expressly forbidden from making laws that prohibit a free exercise of religion. Because, as I have demonstrated, Proposition 8 has the effect of prohibiting the free exercise of religion it is, de facto, unconstitutional and should, must and, I believe, will ultimately be struck down on that basis.
But back to Professor and Mrs. Lohmann: If it’s true that “the designation of their marriage loses what meaning it held for them” (by virtue of being married and voting against Proposition 8) then I would suggest that they surrender to others far too much power over the meaning of their marriage. The withholding of marriage rights under Proposition 8 was, in my opinion, improper and unconstitutional but the character of that impropriety and unconstitutionality in no way diminishes the meaning my wife and I ascribe to our own marriage. Such meaning rightly comes from and remains valid and protected within and between our own selves and no influence outside of us can alter it, unless, of course, we allow it to.
Thus our marriage was in no way threatened when same-sex partners could be lawfully married in California, nor is it to any degree threatened that they, at least for now, cannot.
Similarly, our society’s refusal to extend marriage rights to some through the passage of Proposition 8 in no way makes of marriage, itself, “an institution of discrimination” any more than does our society’s persistent refusal to extend marriage rights to, say, polygamists. Say, rather, that marriage is an institution that society sometimes uses to discriminate. This unfortunate practice is by no means without precedent, sadly. The current practice, using the institution of marriage to discriminate, is, in fact, very similar to the past method of using the now thankfully defunct institution of “separate but equal” and “Jim Crow” laws to require minorities to enter buildings through different doors or to drink from different water fountains. “How is this discriminatory?” most segregationists would ask. “Minorities still had access to the buildings, right? They still had water to drink, yes?”
In much the same manner and with just as much enthusiasm did many supporters of Proposition 8 assert that “Domestic Partnership” was separate from, but equal to, marriage. “Hey” they would insist, “They still get to visit one another in the hospital, right?
How else, other than “discriminatory”, are we to characterize the governmental use of an institution to extend certain rights and privileges to some in our society (married persons) but withhold them from others (single persons)? Are unmarried but otherwise committed “straight” couples harmed any less than are unmarried but otherwise committed “gay” couples by being withheld from enjoying the various rights and privileges extended to married couples?
Certainly not.
As a society we do, indeed, discriminate, and lawfully so. We draw “lines” of societal conduct and any actions beyond those lines are deemed unacceptable and therefore, if not assertively punished, are at the very least not to be rewarded through the extension of privilege. One such societal line is the institution of marriage. Like so many other lines drawn by society, this is a line that has been moved several times in our history. At one time inter-racial marriage was not lawful, but the line was eventually, and rightly, moved in that case. I feel certain that the line will ultimately be moved yet again in the case of same-sex marriage.
But in this context, marriage is simply the *means* of societal discrimination…the instrumentality, if you will. Its use as a means of discriminating against some and not others should (does) not condemn the institution itself but, rather, the uses (some would say abuses) to which the institution is subjected.
Therefore it seems strange to me that Professor Lohmann would suddenly feel “pushed into a category he no longer wanted to be in: married” by virtue of the passage of Proposition 8 when I hope I have shown that the institution of marriage is, itself, not discriminatory (and therefore should not be so readily abandoned) but that some of the uses to which society subjects the institution most certainly are discriminatory; that they have been for a good long while now and that society seems… at least for now… quite content that they remain so.
My suggestion: If we, as a society, cannot find it within us to acknowledge the constitutional right of all consenting adults, regardless of sex or sexual orientation, to marry if they so choose then, as I see it, we have two options to re-establish basic fairness and balance to our society in this area:
1. We should take government out of the equation. We should immediately cease the use of the institution of marriage as a means to discriminate against some consenting adult members of our society. Put simply, this means that that the government, at all levels, should once and for all be removed from the “marriage transaction”. No government-administered marital benefits should be conferred upon *any* consenting adults. In this way stop permitting our government to violates the “religion” clause of the 1st Amendment to the U.S. Constitution…
…or,
2. We should follow the lead of Canada which, in July 2005, passed the Civil Marriage Act and, in essence, created two types of marriage that are co-equally recognized by the government… religious and civil. Each type of marriage derives *precisely* the same government-administered rights and privileges that the other does, not a single right more and not a single privilege less. If government is to continue to be involved in marriage between consenting adults, then its involvement *must* be just and therefore it must be equal
With due respect to Professor and Mrs. Lohmann, the correct response (at least for me) to the passage of Proposition 8 is not to abandon the institution of marriage but, rather, to require our government to stop using that institution to discriminate against some consenting adults in our society.
I very much welcome your comments and your questions.