The Cowardly Solution to Gay Marriage

[General Zod]

Linky

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. (See pictures of the busiest wedding day in history.)

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.

"While new terminology for all may at first seem awkward — mostly in greeting-card shops — [it] dovetails with the court's important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow," wrote Douglas W. Kmiec and Shelley Ross Saxer. Kmiec voted for Prop 8 because of his belief in the teachings of the Catholic Church and his notion of religious liberty but has since said he thinks the courts should not allow one group of Californians to marry while denying the privilege to others.

Their idea got a big boost three days later, during the March 5 oral arguments before the California Supreme Court, which is expected to issue a ruling soon in the case brought by gay couples and others who argue the constitutional amendment passed by voters last fall should be invalidated. Justice Ming Chin asked attorneys for each side whether the idea would solve the legal issues connected to gay marriage — issues that at their core revolve around the question of whether allowing some couples to marry but not others violates constitutional guarantees of equal protection under the law. (Check out a story about the state of marriage and divorce in America.)

Both sets of lawyers agreed that the idea would resolve the equal-protection issue. Take the state out of the marriage business and then both kinds of couples — straight and gay — would be treated the same. Even Ken Starr, the Pepperdine law dean and former Whitewater independent counsel who argued in favor of Prop 8, agreed that the idea would solve the legal issues, though he said it was a solution that lies outside the legal authority of the court. An attorney for the other side, Michael Maroko, didn't expressly endorse the idea, but he told Chin, "If you're in the marriage business, do it equally. And if you're not going to do it equally, get out of the business."

The two Pepperdine professors are arguing that the court should use that line of thinking in crafting its decision in the case before it, short-circuiting the need for a new referendum. Their proposal is aimed at helping speed a resolution on the issue in other states — gay marriage is heating up in Iowa, Connecticut, Vermont and elsewhere — and at the federal level. All sides on the debate expect the issues bubbling up out of the state courts and legislatures to eventually gain traction in federal courts too, ultimately leading to a case before the Supreme Court or efforts to amend the U.S. Constitution or both.

But as Solomonic as the compromise seems, giving up the word marriage may be impossible. For many couples joined in matrimony, having the state no longer call them married may make them feel as if something important had been taken away — even if it's hard to define just what was lost. And for many others — the folks who feel most strongly about marriage and most passionately supported the expensive campaign to defeat gay marriage — the issue of nomenclature is only the beginning. They are against not just gay marriage but also gay couples — and especially against government sanctioning of those relationships, no matter what they are called.

And as Chin considers whether he can craft a compromise with his fellow justices that would both uphold Prop 8 — and therefore the right of the people to amend the state constitution — and assert the right of gay people to be treated equally, he may find that the folks who cling hardest to marriage are gay couples. After all, what was the most sweeping part of the May 2008 decision Ming and his colleagues issued that granted gays the right to marry? It was the idea that the word marriage is so strong that denying it to gay couples violates the most sacred right enshrined in the state constitution: the right for all people to be treated with dignity and fairness. Just 10 months later, gay couples — whether or not they are among the 18,000 who married in the state before Prop 8 stopped the ceremonies — are loath to lose a word for which so many fought so hard and so long to have apply to themselves.

But the Pepperdine idea puts into a play a new way of thinking — and whether it's part of the court's decision in the Prop 8 case or whether it makes its way into a new referendum, the idea of getting governments out of the marriage business offers a creative way of thinking about a problem that is otherwise likely to be around for a long, long time.

For some reason I can't help but think of a cliche supervillain going "If I can't have it all to myself, nobody can! Bwahahahaha!" and then pushing a self destruct button when I read this proposal. Not to mention the hilarious dishonesty/ignorance (take your pick) that marriage is somehow intrinsically tied to religion, or that the government should have absolutely nothing to do with it. (Even though it was largely thanks to the Roman government it became so popular in the first place). It's just absolutely mind boggling that some people would rather do away with the current idea of marriage altogether than let gay people use the word too.

[DesertFly]

I'm not sure where you're getting cowardly from, but let the state issue civil unions, with all the rights and privileges we associate with marriage, let the two parties involved call it what they will, and involve any third party they wish (such as a religious institution), and it's the most logical (and fair) solution. This would actually open the door for homosexuals to get married far more cleanly by "lowering" traditional marriage to the same level.

[Superboy]

I'm not sure where you're getting cowardly from, but let the state issue civil unions, with all the rights and privileges we associate with marriage, let the two parties involved call it what they will, and involve any third party they wish (such as a religious institution), and it's the most logical (and fair) solution.

So your solution is to change nothing about marriage, except the name, and let gays "marry"? Why not just let gays marry and keep calling it marriage? Do you really think it's the word "marriage" that's causing the problems?

[DesertFly]

I'm not sure where you're getting cowardly from, but let the state issue civil unions, with all the rights and privileges we associate with marriage, let the two parties involved call it what they will, and involve any third party they wish (such as a religious institution), and it's the most logical (and fair) solution.

So your solution is to change nothing about marriage, except the name, and let gays "marry"? Why not just let gays marry and keep calling it marriage? Do you really think it's the word "marriage" that's causing the problems?

Noo...my solution is to take away the government endorsement of a religious-based institution, while still acknowledging the existence of said institution, and at the same time extending rights to any who want them, including (but not limited to) gays and lesbians. Actually, and I know this makes me way crazy, I'd be fine with allowing more than two parties to enter such an agreement (hello group marriage!), and just have it be treated as a sort of "business contract" covering things like property disbursement after death, medical decisions during periods of incapability, and all the other things that are associated now with marriage. Then, the people who signed the contract would go to the church, or synagogue, or sacrificial altar of their choice and get whatever religious veneer they wanted slapped on it, or just go home and tell people they're married.

EDIT -- De-emphasizing the "special" status of heterosexual marriage is much the same as "elevating" homosexual marriage to the same level.

[CmdrWilkens]

I'm not sure where you're getting cowardly from, but let the state issue civil unions, with all the rights and privileges we associate with marriage, let the two parties involved call it what they will, and involve any third party they wish (such as a religious institution), and it's the most logical (and fair) solution.

So your solution is to change nothing about marriage, except the name, and let gays "marry"? Why not just let gays marry and keep calling it marriage? Do you really think it's the word "marriage" that's causing the problems?

If you remove the quotation marks from aroudn "marry" then yeah. I don't think the word is causing all that much of a problem but I can tell you that its the kind of thing that gets middle of the road church going types up in arms. The fundies want "the gays" to burn in hell so nothing is going to change their mind but for the LESS bigoted types taking the word marriage off the table probably will cool things off. The quesiton is whether taking "marriage" away from straight couple would provoke a repsonse or not and THAT is the hot button it sounds like these guys avoided.

[Omega18]

So your solution is to change nothing about marriage, except the name, and let gays "marry"? Why not just let gays marry and keep calling it marriage? Do you really think it's the word "marriage" that's causing the problems?

Actually I do think its a huge part of the problem right now.

You certainly have the outright pure biggots out there, but there are others who figure since the word is marriage, the government is somehow involved with the religious angle and giving allowing same sex couples to marry somehow is a religious endorsement.

If you say the govenrment is not involved in the sanctity of marriage at all anymore and merely the legal aspects, and they are leaving actual marriages purely to religious groups and other organization to decide on thier own if they want same sex couples to marry, that really changes the nature of the discussion. Basicly its about making it clear the government is not actually involved in the religious angle at all and is staying out of it, and that could have real benefits. (Its true the government really is only involved in the secular legal angle in the first place, but changing the wording could help make this more clear to the general public.)

There definitely are potential issues with people getting upset with the government implementing such a change in the first place though if you actually do it for everyone as I would think be required to actually really implement this.

[Plekhanov]

Noo...my solution is to take away the government endorsement of a religious-based institution,

On what grounds do you claim that marriage is 'a religious-based institution'?

[General Zod]

Noo...my solution is to take away the government endorsement of a religious-based institution, while still acknowledging the existence of said institution, and at the same time extending rights to any who want them, including (but not limited to) gays and lesbians. Actually, and I know this makes me way crazy, I'd be fine with allowing more than two parties to enter such an agreement (hello group marriage!), and just have it be treated as a sort of "business contract" covering things like property disbursement after death, medical decisions during periods of incapability, and all the other things that are associated now with marriage. Then, the people who signed the contract would go to the church, or synagogue, or sacrificial altar of their choice and get whatever religious veneer they wanted slapped on it, or just go home and tell people they're married.

EDIT -- De-emphasizing the "special" status of heterosexual marriage is much the same as "elevating" homosexual marriage to the same level.

The idea that marriage is a religious based institution is absurd and quite frankly one of the only reasons so many fundies take such an issue with gay marriage. Aside from the outright bigotry of course.

[Ekiqa]

Noo...my solution is to take away the government endorsement of a religious-based institution,

On what grounds do you claim that marriage is 'a religious-based institution'?

The Christian religion was never involved directly in marriage until the Reformation, when it lost a significant part of its revenues, and decided that the only marriages that were legal, were those blessed by the Church.

Back to the original post, in Ontario, we have the exact thing, expect we call it a Marriage Certificate, and you get it from your local town or city council. If you want, you can then have a religious ceremony, but it is not required.

[Samuel]

Screwing over gays and atheists at the same time- you have to applaud their their streamlining.

This was the same dumb argument in Nudge. It is stupid because it assumes basic good faith on the behalf of bigots.

[Omega18]

Screwing over gays and atheists at the same time- you have to applaud their their streamlining.

This was the same dumb argument in Nudge. It is stupid because it assumes basic good faith on the behalf of bigots.

If you implement it for everyone though including straight couples, the bigots have outsmarted themselves at that point.

The reality is the are allot of people with more middle of road type positions who won't be particularly concerned about Gays getting some sort of clearly purely civil and legal recognition from the state with individual religious organizations deciding if they want to actually specificly marry anyone (along with any other organization who wants to hold some sort of marriage ceremony.) The key is no religious organization has to aknowledge the religious portion of the marriage valid if they disagree with what another organization did. There certainly are churches and synagagues out there right now which will marry same sex couples.

[Superboy]

If such a plan were ever implemented, can you imagine the religious freakout that would occur from "the gay agenda taking away marriage"?

Idealy, the threat of the religious right having a tantrum shouldn't stop any good government plan from being enacted, but the plan proposed in the OP is meant as a way of appeasing the religious while still giving gays the right to marry. I think it would fail drastically and cause more of a religious backlash than just letting gays marry under the current system.

[Plekhanov]

The key is no religious organization has to aknowledge the religious portion of the marriage valid if they disagree with what another organization did.

Are they compelled to do so now? If not doesn't your whole rational collapse?

[Lord of the Abyss]

Screwing over gays and atheists at the same time- you have to applaud their their streamlining.

This was the same dumb argument in Nudge. It is stupid because it assumes basic good faith on the behalf of bigots.

If you implement it for everyone though including straight couples, the bigots have outsmarted themselves at that point.

Considering that gays would get the blame for "destroying marriage", I think not. Plus atheists would either have the word "marriage" stripped from their union, or be forced to go suck up to some priest.

[General Zod]

The key is no religious organization has to aknowledge the religious portion of the marriage valid if they disagree with what another organization did. There certainly are churches and synagagues out there right now which will marry same sex couples.

Perhaps you didn't notice it, but during all of the Proposition 8 noise, a lot of the people supporting the proposition were using the argument that legalizing gay marriage would mean they would be forced to perform gay wedding ceremonies in their churches, even though that was blatantly a lie. It doesn't matter what the reality of the situation would be to bigots like this.

[Omega18]

The key is no religious organization has to aknowledge the religious portion of the marriage valid if they disagree with what another organization did.

Are they compelled to do so now? If not doesn't your whole rational collapse?

The point is right now to a degree you arguably are required to aknowledge a state sanctioned gay marriage in that state in a few situations, certainly to the degree of potentially giving the same health benefiits you would give to other married couples if you own a company for instance. If the word marriage is confined solely to something religous and other organizations do outside of the state without the state being involved in that component of things, then that potential argument goes away.

[Omega18]

Considering that gays would get the blame for "destroying marriage", I think not. Plus atheists would either have the word "marriage" stripped from their union, or be forced to go suck up to some priest.

Once the initial argument goes away though, it would mostly be the religous extremists still objecting to the situation. Its after all about leaving marriages to individual churches.

With my proposal at least, you can have whatever Athiest organization you want go ahead and marry you, there really wouldn't be any restrictions here.

[bobnik]

I've seen this idea before and I agree with it. The only difference in this iteration seems to be the non-use of the terms "marry" and "marriage" in the legal government side of things. I understand that on the case of post-prop-8 California this difference in legal terminology would neatly sidestep the issue, but do gay couples want the right to call their union "marriage"? I mean, would they accept an equal legal status, or do they want access to the actual word?

For my part I believe they should have exactly the same rights legally and call it whatever they want. But should this idea be turned down for the lack of one word? It would be a pretty serious foot in the door, as I understand the current state of gay rights in the USA.

What, if any, hand must a church have in marriage in USA? What happens when a heterosexual atheist couple want to get married?

[Omega18]

Perhaps you didn't notice it, but during all of the Proposition 8 noise, a lot of the people supporting the proposition were using the argument that legalizing gay marriage would mean they would be forced to perform gay wedding ceremonies in their churches, even though that was blatantly a lie. It doesn't matter what the reality of the situation would be to bigots like this.

The bigots would be obvious and very innefective liars in this situation though. Since the whole emphasis in the proposal for the law would be letting individual churches and the like make thier own decisions on the matter, such lies would be vastly less effective in this situation. The law could even be billed as specificly making absolutely certain that churches don't ever get forced to marry anyone when they have religious objections for doing so.

[General Zod]

I've seen this idea before and I agree with it. The only difference in this iteration seems to be the non-use of the terms "marry" and "marriage" in the legal government side of things. I understand that on the case of post-prop-8 California this difference in legal terminology would neatly sidestep the issue, but do gay couples want the right to call their union "marriage"? I mean, would they accept an equal legal status, or do they want access to the actual word?

It's both. Otherwise you're looking at separate but equal all over again.

For my part I believe they should have exactly the same rights legally and call it whatever they want. But should this idea be turned down for the lack of one word? It would be a pretty serious foot in the door, as I understand the current state of gay rights in the USA.

Words do have meanings and rather set definitions. What the douchebags proposing this idea want to do is effectively redefine the word so that homosexuals can't use it, but still maintain the pretense of giving equal rights. It's effectively a scorched earth version of gay marriage.

What, if any, hand must a church have in marriage in USA? What happens when a heterosexual atheist couple want to get married?

Is this a serious question?

[General Zod]

The bigots would be obvious and very innefective liars in this situation though. Since the whole emphasis in the proposal for the law would be letting individual churches and the like make thier own decisions on the matter, such lies would be vastly less effective in this situation. The law could even be billed as specificly making absolutely certain that churches don't ever get forced to marry anyone when they have religious objections for doing so.

You're underestimating the effectiveness of fear campaigns with the goal of demonizing a minority in mind.

[Lord of the Abyss]

Considering that gays would get the blame for "destroying marriage", I think not. Plus atheists would either have the word "marriage" stripped from their union, or be forced to go suck up to some priest.

Once the initial argument goes away though, it would mostly be the religous extremists still objecting to the situation. Its after all about leaving marriages to individual churches.

What makes you think they'd be the extremists any more ? Something like this is the sort of thing that people remember a long time, and the blame will be laid right at the collective feet of the gays.

Imagine what race relations would have been like if this had been the solution to the "problem" of allowing interracial marriages. You'd still hear people talking about how the black civil rights movement destroyed marriage; including from a lot of blacks I expect.

[Plekhanov]

The key is no religious organization has to aknowledge the religious portion of the marriage valid if they disagree with what another organization did.

Are they compelled to do so now? If not doesn't your whole rational collapse?

The point is right now to a degree you arguably are required to aknowledge a state sanctioned gay marriage in that state in a few situations, certainly to the degree of potentially giving the same health benefiits you would give to other married couples if you own a company for instance. If the word marriage is confined solely to something religous and other organizations do outside of the state without the state being involved in that component of things, then that potential argument goes away.

'a company' isn't a 'religious organization' now though is it?

Besides shifting the goalposts hasn't helped you as that company would still have to give "the same health benefiits" to civil partnerships regardless of the gender of the partners wouldn't it?

[bobnik]

What, if any, hand must a church have in marriage in USA? What happens when a heterosexual atheist couple want to get married?

Is this a serious question?

Yes. I live in Australia, and am not familiar with the actual laws in the USA. One hears all sorts of horror stories, like laws about the value of pi, and I wanted to get the facts straight. Even if you've got a decent link, I'll wander off and educate myself.

[Plekhanov]

The bigots would be obvious and very innefective liars in this situation though. Since the whole emphasis in the proposal for the law would be letting individual churches and the like make thier own decisions on the matter, such lies would be vastly less effective in this situation. The law could even be billed as specificly making absolutely certain that churches don't ever get forced to marry anyone when they have religious objections for doing so.

Are churches 'forced to marry anyone when they have religious objections for doing so' now? Who has proposed that they should be so forced?