I read your article and agree with one part of it;it is an issue of "Separation and State”. I do see this issue as an intrusion upon religious rights".
I accept your contention that marriage has been and is still a "religious" definition. The point I think you’re missing however is should the government be using a religious terminology? This, for me, is the real issue and what has been missing in this debate.
At the time the word "marriage" was incorporated into law and tax codes. Gay Rights or even the acknowledgment of homosexuals wasn't an issue.
So when "marriage" was incorporated into the tax codes and into the law, it was understood to mean ... Man & Woman.
If this definition is no longer an acceptable one, to the public or to our court’s, then I contend that the government should have to change what word they use in law and tax codes, because “The Government” doesn't have the authority to change the "religious" definition/meaning of a “RELIGIOUS” rite/practice as per the topic of your article; Separation of Church and State.
Maybe instead of the government issuing marriage licenses, they should be giving Civil Union Licenses?
I suggest that this as the alternative that both sides could live with, since it gives equal status under the law that gay’s are saying they don’t have, but it doesn’t use the term “Marriage” that Christians, Muslims and Jews (and perhaps other religious groups that I “MAY” not be aware of or am not thinking of right now) take offense too. The people I know that take offense to the term Marriage don’t really care if the government has some form of equal standing/protection under the law, they are taking offense to the word “Marriage” being used, since their “religious” belief and teaching is in conflict with it. They believe their religious rights are being violated and secularized to an increasingly hostile population of nonbelievers.
Many of the arguments used by the Christian Right against gay marriage make a lot more sense if we add in as an unstated premise the idea that they are trying to preserve some form of cultural "ownership" over the concept of marriage. Here, though, we find Scott making this premise quite explicit. Although he only ever uses the adjective "religious," it's hard to see Christianity isn't the primary religion of interest. The concept of "marriage" varies too much among religions for it to make any sense to think that there couple be a single, coherent "marriage" definition for all religion.
Why, though, should anyone accept the idea that marriage is an exclusively religious concept anyway? Why should we accept that talk about marriage means using religious terminology about a religious rite? Granted, marriage is also religious for most religious believers, and most religions have a lot to say about marriage, but there doesn't appear to be any reason to imagine that therefore there isn't such a thing as a secular or civil marriage which lacks any religious components.
Basically, Scott is trying to argue that people aren't genuinely married unless and until some religious authority figure (usually male) approves of a couple's union. If a couple can't find a religious authority figure to give them his approval, then their union can't possibly be considered a "marriage." He wants to create an entirely new category of civil law to cover such unions — as if all heterosexual marriages in America up until this time have been entirely religious. I don't think that any adjective fits this perspective better than "deluded," and I fear the possibility that there many be quite a few American Christians who share it.
Scott certainly isn't the first to argue that it's wrong to change the nature of marriage to include unions of the same sex, but like all people making this argument he forgets that the "nature" of marriage is a cultural, legal, and human creation which has gone through a lot of changes over the past couple of centuries. Roderick Long wrote about a case from 1886 in which two "free-love activists," Lillian Harman and Edwin Walker, announced a marriage which they had performed in private — they didn't believe that either the state or the clergy were necessary.
The judge presiding over the case, Valentine, agreed that under common law “the mere living together as husband and wife of a man and woman competent to marry each other, with the honest intention of being husband and wife so long as they both shall live, will constitute them husband and wife, and create a valid marriage.” Still, he rejected the validity of the marriage:
In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. … In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.(Quoted in Hal D. Sears, The Sex Radicals: Free Love in High Victorian America, p. 94.)
What "essentials" to a valid marriage had Walker and Harman "repudiated?" Long explains:
In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: “I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.”
She also declined to submerge her individuality in another’s by taking her husband’s last name: “I retain, also, my full maiden name, as I am sure it is my duty to do.” Walker for his part vowed that “Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we ... repudiate all powers legally conferred upon husbands and wives.”
In particular he repudiated any right as husband to control his wife’s property; he also acknowledged his “responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.” Harman’s father added: “I do not ‘give away the bride,’ as I wish her to be always the owner of her person.” (Sears, p. 85.)
Thus, according to Judge Valentine, the "essentials" of marriage included: life-long commitment, a wife's obedience to the husband, the husband's absolute control over all property, the wife taking the husband's last name, the right of the husband to force sexual intercourse on an unwilling wife (that would be rape, by the way), and the right of the husband to control and have custody of any children. Yes, those were once all regarded as essentials of marriage — just as it is today regarded as "essential" to marriage that it be a union between one man and one woman. Given that all those other essentials have been abandoned — and even Christians like Scott are unlikely to argue for their return — upon what basis can they insist that the so-called "essential" of heterosexuality be retained?