Wednesday, May 27, 2009

A Gay-Marriage Solution: End Marriage?

When a Jewish boy turns 13, he heads to a temple for a deeply meaningful rite of passage, his bar mitzvah. When a Catholic girl reaches about the same age, she stands in front of the local bishop, who touches her forehead with holy oil as she is confirmed into a 2,000-year-old faith tradition. But missing in each of those cases — and in countless others of equal religious importance — is any role for government. There is no baptism certificate issued by the local courthouse and no federal tax benefit attached to the confessional booth, the into-the-water-and-out born-again ceremony or any of the other sacraments that believers hold sacred.

Only marriage gets that treatment, and it's a tradition that some legal scholars have been arguing should be abandoned. In a paper published March 2 in the San Francisco Chronicle, two law professors from Pepperdine University issued a call to re-examine the role the government plays in marriage. The authors — one of whom voted for and one against Proposition 8, which ended gay marriage in California — say the best way out of the intractable legal wars over gay marriage is to take marriage out of the hands of the government altogether.

Instead, give gay and straight couples alike the same license, a certificate confirming them as a family, and call it a civil union — anything, really, other than marriage. For people who feel the word marriage is important, the next stop after the courthouse could be the church, where they could bless their union with all the religious ceremony they wanted. Religions would lose nothing of their role in sanctioning the kinds of unions that they find in keeping with their tenets. And for nonbelievers and those who find the word marriage less important, the civil-union license issued by the state would be all they needed to unlock the benefits reserved in most states and in federal law for married couples.

Read the rest here.

This is a fairly libertarian approach and one that I have been urging as the only viable solution to this quandary for a number of years now. It won't sit well with social conservatives. But we do not live in a theocracy. And since marriage is first and foremost a religious sacrament, it really should not be in any way under the purview of the state.


Steve Hayes said...

I advocated something similar in my blog a few years ago: Notes from underground: The State should get out of the marriage business.

But talking of "gay marriage" is a bit of a misnomer. There has been no law against gay marriage in any country that I am aware of, though whether gay people would have the inclination to marry is another matter, but some undoubtedly have.

Michael said...

This is my position as well, for what it's worth. It has been a while since I read him on this subject now so please forgive me if I have misrepresented him but I seem to remember Father Thomas Hopko takes a similar position.

One major problem for us if this were to be proposed in this country would be the Church of England, which is divided within itself over whether or not Marriage is actually a Mystery, and so in canon and in practice recognises no difference between a five-minute marriage performed by a non-Christian in the local register office and a marriage performed by a priest in church. They see the two as the same thing, so much so that Church of England priests actually have the legal status of registrars for the purposes of weddings.

Because of this, any suggestion that civil marriage be laid to rest and replaced with something else would be greeted with great opposition for no other reason than there seems to be an inability for many in the established church to separate in their minds the Sacred Mystery of Holy Matrimony from the legal business of registering a marriage for the sake of shared possessions, tax benefits, and rights of inheritance and next of kin.

Orthodoxy recognises that these are not the same thing. Many bishops will insist that the civil marriage take place before sacramental marriage, but not all. One couple from my parish were married in church about a fortnight after their five minutes at the register office, and I know which occasion was more important to them. I also know an older couple, both retired, who were married in church but not in law, and they couldn't care less about the legal status of their relationship. Their children from previous marriages are respectful and supportive and will carry out their wishes when they have gone, so they do not worry about what the law doesn't give them.

So the question, as I see it, is not about whether sacramental marriage can be bestowed on two men or two women. That question is for the Church to answer according to its doctrines and beliefs. The question here is an entirely separate question about whether gay couples should be denied rights in law, which have nothing whatsoever to do with the Mystery of Holy Matrimony.

For years in this country, a gay couple living together for fifty years would pay a higher rate of tax than a married couple of two years, simply because they were classified in law as two single people living together. One would hear stories of the same-sex partners of hospice patients being denied access to see their dying partner because they didn't have next-of-kin status in law, and the patient's family disapproved of the relationship. Partners of many decades were often shocked to learn that they had no benefit from a newly-deceased same-sex partner's pension scheme in the way that married partners did, and many were left in unexpected poverty in their old age. There were many more horror stories. Many of these situations have been resolved by the introduction of civil partnerships but we now hve the nonsensical situation where civil partnerships are reserved only for same-sex couples, simply because church people viciously opposed doing away with civil marriage. So instead of including everybody in the civil partnership provision, we have two very similar, non-religious statuses in law, for different groups of people, simply because some religious people seem unable to imagine the difference between a contract in state law and an element of the life in Christ.

I hope Americans show more sense.

123 said...

I've been arguing for this for years, too (since at least 1996, before gay marriage was all the rage).

The Orthodox Church doesn't 'recognize' the sacramental marriages of other churches and often requires a couple be married 'in the Church' - even after baptism or conversion, or if one baptized as a child fell away from the Church and was married outside of Her. The Russians tend to receive a married couple by economia, while Greeks tend to (re)marry - which is also the traditional bifurcation in how baptism/chrismation outside of the Orthodox Church was accepted, or not (the Russians by confession or chrismation, the Greeks by baptism/chrismation). So, I don't see any reason for the state to legally equate Orthodox, Lutheran, Mormon, Unitarian, Muslim, Jewish and secular 'weddings'. My wedding was very different than my brother-in-law's wedding a City Hall, and very different than the backyard wedding of friends by a Unitarian priestess - but the state says they are the same.

I can still accept as legal and respect a person's domestic arrangement without ceding our own, personal legitimacy to it - we all the do the same with friends of different religious persuasions.

Anonymous said...

Don't a lot of the European countries require a state marriage ceremony--like going before a judge-- and then it's up to the couple of they get a church wedding in addition?
Please correct me if I'm wrong.
Seems like that really is the only solution. I guess that would be a good example of separation of church and state.

Jonathan D. Jacobs said...

At the end of our (beautiful!) wedding, our Priest said, "And now, by the power vested in me by the state of Indiana....[pause]..." and there was quit a bit of laughter, and he continued, "and by the much higher Power of God..." The laughter reflected the oddity well.

Mark said...

Sorry to comment on an older blog, but I fully agree with this approach and have suggested it to friends (who laugh at me) ever since prop 22 in 2000. I am glad that I am not the only one to think of such a simple and constitutionally sound solution.