Is there a "right" to marriage - or is it a rite.

I voted against Proposition 8, the attempt to introduce a definition of marriage (as between a man and a woman) into the California Constitution. But I have been concerned by the actions of some of the opponents of the measure after it was adopted by a 52-48 margin. Three issues seem important.

First, is there a "right" to marriage? Marriage has both religious and civil implications. So there is a difference between the rite of marriage and the right to marriage. In the civil arena it conveys a series of property rights to people who have the status. Married people can more easily transfer property and look after loved ones health needs. At the federal level married people are given special (although not always positive) treatment in the tax code.

But there is also a religious connotation to marriage. The religious covenant of marriage represents differing traditions in different denominations. In many conservative Christian traditions it recognizes that only a man and a woman can create a child and that act has broader implications for society. That theology makes no statement about the worth of other living arrangements - different here is not necessarily unequal.

I do not believe there is a right to marriage any more than I believe there is a right to government sponsored health care. But I do believe that the state has the ability to make definitions for its own use which do not conform to religious traditions. (which are the rite side of the equation) For example, devout Catholics cannot divorce, except under certain exceptional conditions. But civil society has recognized that it is perfectly appropriate to allow divorce under civil law. American tradition has put a high reliance, although not an absolute one, on encouraging the free exercise of differing religious beliefs.

The second issue is what are the limits of civil authority? Here I go back to the standard "render unto Caesar that which is Caesar's and unto God the things that are God's." Clearly some supporters of gay marriage would like to extend the principle beyond civil society and punish religious institutions that do not conform to the civil standard they want to enact. That is just as narrow minded as the beliefs that the supporters of gay marriage ascribe to conservative religious traditions.

Third, why has the passage of Proposition 8 caused such a kerfluffle? Thirty states have had the opportunity to opine on a definition of marriage and thirty states have voted in the same way that California has. At this point only Massachusetts and Connecticut seem to support the concept of gay marriage - and both of those came about not because of a vote of the people but because of interventions in the court. The California vote was necessitated, in part, because four justices of the state's highest court wrote an opinion on a set of cases brought by opponents of traditional interpretations of marriage. I believe that the supporters of expanded rights for gays should concentrate on a couple of arenas before they attempt to again overturn a vote of the people. In my mind, those should extend the property rights and civil union standards to other states. In California, a huge majority of the voters support that. I suspect they would in other states. In addition, they might work to change the federal tax code to more appropriately reflect the idea of civil unions.

But they should never forget the rights to free exercise of religion guaranteed in the First Amendment. I fear some of the opponents of Proposition 8, care little for those standards, which are indeed enumerated rights in the Constitution. The American Civil Liberties Union and some of the other supporters of the suits against Proposition 8 consistently ignore the "free exercise" part of the First Amendment.

In Sunday's Bee, Dan Roth, who was the founding president of the Stonewall Democratic Club, argued "And most importantly we need to listen instead of yelling." That sounds about right to me. I am not sure whether I represent a significant part of the electorate or not. I really don't care. But if I do represent a large fraction, it might be smart for the supporters of gay marriage to consider a clearer separation between civil and religious expression and to look less at terminology and more at the substance of the law.