“Is it possible to decide what marriage law should be without entering into moral and religious controversies about the moral status of homosexuality and the purpose of marriage?”
I think that it absolutely is possible. In fact it’s essential in the United States. We don’t legislate religion in this country. Whatever religion may think about the moral status of homosexuality and the purpose of marriage is irrelevant when it comes to legislating the laws in the US. In fact, the first amendment to the constitution prohibits congress from making any law respecting an establishment of religion. Allowing religion to dictate any laws in the US, establishes religion as a legislative priority and that’s unconstitutional. Religion; the “church”, may not like this, but they don’t have to pay taxes so they have no say in the matter when it comes to legislation and the secular laws of this country. They are more than free to hold their opinions about the subject, but our laws cannot be based on religious objections.
In Thomas Jefferson’s famous letter to the Danbury Baptists, he’s mostly known for his metaphor on the separation of church and state. But he also said this; “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for is faith or his worship, that the legislative powers of government reach actions only, and not opinions,”
Our government should never engage in the practice of legislating moral or religious opinions. Those kinds of value judgments are best left to individuals. It seems that we’re splitting hairs here on what is the proper role of legislation. (tax laws v moral laws) The proper role of legislation in America is summed up by Jefferson’s statement that “that the legislative powers of government reach actions only, and not opinions”. Morality and religion are always matters of opinion. What are those opinions based on? I think trying to determine that leads to infinite regress or at best circular reasoning.
Attempts to legislate morality always fail. Laws that excluded women or ethnic minorities were once considered appropriate, but over time we found no logical argument to support that view. Today we’d object to those views. What changed? Morality?? Is morality so flexible and malleable that it has no meaning, or means whatever is popular for the moment? This is always the danger that legislating morality presents. Slavery was once considered morally justified, and the Southern Segregationists felt that this tradition and history was acceptable. When this kind of attitude surrounds a conception of morality that is embedded into religious beliefs, all attempts to reason with that person becomes an attack on their religion, and their identity which is defined by these beliefs is challenged.
Marriage is a contract. It requires a license issued by the state. It requires a court of law to divorce. One doesn’t need a church to get married so religious considerations are not involved unless a person wants a church wedding. A Church would of course be within its rights to deny that kind of ceremony.
Regardless of all of this, the state is necessarily to be involved in marriage because it is a contract and there are property rights involved. It also makes no sense for two people to be considered married in one state and not another. A civil contract is valid in every state.
Furthermore, the idea that marriage is for procreative purposes would rule out people who can’t have children but choose to love each other and share their lives without children. You don’t need to be married to have children, and you don’t need children to be married.