CA Proposition 8 constitutionality, the fight for traditional family goes on.

Millions of voters in California sent a message in 2009, via Proposition 8, that traditional marriage is crucial to society. They expressed their desire, through a democratic process, to keep traditional marriage as the bedrock of society, as it has been for centuries. A federal appeals court Tuesday overturned Proposition 8’s ban on gay marriage, in a 2-1 ruling that opponents hailed as historic and supporters immediately vowed to appeal.

Young couple married in front of Salt Lake Temple
SirBryan Photography –

Having a brother who’s chosen a homosexual lifestyle and a cousin who struggles with homosexual tendencies, I have seen firsthand how sensitive this subject can be to those who struggle with it. However, if we look at the origins of Marriage, and come to accept this religious tradition for what it is meant to be, we might find a better solution for all. Being a member of The Church of Jesus Christ of Latter-day Saints also gives me a somewhat unique perspective on traditional marriage.


What I’ve found most important is to not argue about if same sex marriage should be allowed, but rather to discuss the importance of marriage, and its origins as a religious covenant. It was first defined in the bible thousands of years ago as recorded in Genesis 1:27-28, and 2:24, defining it clearly a covenant between a man, a woman and God. Yet over the centuries governments have sought to be involved, creating a legality issue around marriage that today is being challenged by those who want to re-define and broaden the very meaning of marriage; something that has actually been going on since the U.S. civil war.

It wasn’t until the 16th century that European states begin to require that marriages be performed under legal auspices. By the 1920s, 38 U.S. states prohibited certain interracial marriages, and twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce. In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry, but began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents.

Here in Texas, were the state constitution specifically disallows same sex marriages. If it were considered a constitutional protection, then Texas would have a major conflict between the rights of the state, and the over-sight of the federal government. Other states would also be affected by this, but currently there is already a conflict between state and federal law. States are required to recognize each other’s marriage licenses, but in the few states now allowing same sex marriages, these licenses aren’t recognized in those that ban such marriages.

If marriage is seen as a religious act, the Constitution actually says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof“, nullifying the federal laws, but most proponents of constitutional protection of same sex marriage like to quote Amendment XIV were it says “nor deny to any person within its jurisdiction the equal protection of the laws“. Yet despite all this, and the wishes of some religions, the states have “legitimately prohibit bigamy, incest, bestiality and other sexual relationships condemned by society, as well as impose age limits for marriage or require tests for venereal disease without running afoul of constitutional rights“. Similarly if a majority of a state’s citizens want to ban same sex marriage should they not be allowed to do that as well without any concerns of constitutionality?

What if instead of relying on the governments to issue licenses for marriage, and the mess we can now see it creating, we instead left it up to the churches, and got it back to its origins of being a covenant of significant religious importance. As for the legal issues, we should allow any two people, irrespective of any romantic involvement, genders, or the like, who have an interest in being financially and legally bound, to get a civil union license if they desire it. They could then say they are “civilly bound”.

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