Taking the State out of Marriage-for Everyone

Published in: May-June 2010 issue.

WHEN A BRIDE and groom exchange vows in a cathedral, chapel, or temple, they receive a marriage license blessed simultaneously by their clergy and their state. But why? Other religious ceremonies aren’t wedded to civil ones. The county clerk doesn’t issue a baptism license. A priest doesn’t deliver a funeral eulogy and then sign the death certificate. Could separating religious and civil marriages solve the gay-marriage standoff?

Some legal scholars have proposed a simple solution: the government could offer civil unions to all couples, straight or gay. Those who want their unions blessed as marriages could go to their own church after stopping by City Hall. Churches would lose nothing in their ability to sanction unions as they see fit, and the added separation between church and state would bolster religious liberty. All couples would have equal access to the state and federal benefits now available to married couples.

Two law professors from Pepperdine University, a Christian college in Malibu, California, have argued that this is just the legal adjustment needed to resolve the contradiction created by Proposition 8 in California, which overturned “marriage” for same-sex couples while preserving civil unions. Professors Douglas W. Kmiec and Shelley Ross Saxer, “dear friends” and colleagues for a decade, found themselves on opposite sides in the 2008 referendum, with Kmiec voting “yes” and Saxer voting “no.” In a San Francisco Chronicle op-ed piece, Kmiec and Saxer argued that the California high court could uphold Prop 8 and the vote of the people, inserting into the state’s constitution a definition of marriage as limited to a man and a woman. But, they added, the court should remove the word “marriage” from all existing California legislation, directing the state to use “nonmarriage terminology for all couples.” In this way, the court would comply with the court ruling that precipitated the Prop 8 referendum, which held that “marriage” as defined by the state constitution has to include both gay and straight couples under equal protection. “Marriage is of religious origin; it should remain there,” they wrote.

Some gay rights advocates see pitfalls in this solution, however. Evan Wolfson, executive director of New York-based Freedom to Marry, questions why the government needs to invent a whole new system to recognize relationships just because more couples want to participate in marriage. “We don’t need to run around requiring every non-gay couple in America to turn in their marriage [license]to be issued some new kind of civil union.”

But this begs the question that the civil union people are raising, since it assumes that government is in the marriage business and should remain there. What the civil union people are saying is that the government should no more be involved in marriages than it is in baptisms or funerals. It would entail a fundamental change in the way we think about marriage.


Rosemary Winters covers LGBT issues for The Salt Lake Tribune.



Read More from Rosemary Winters