One of the most difficult issues with which society has been grappling in recent years is the question of marriage: specifically, to whom does it apply, how should it be defined, and by whom. It’s generating enormous heat, politically, with accompanying hostility and community suspicion and divisiveness, and it promises to grow worse, rather than better.
I think we’re using a bass-ackward approach to a Gordian Knot. Rather than trying to stretch and twist the traditionally understood institution of marriage so that it covers unions that are not traditional, we’d do better if we recognize marriage on its own merits, but remove the associated civil benefits from it.
Let’s separate the religious from the civil, across the board… for everyone. We can do this if we stop relying on a single document as the source.
What if, when a couple gets married in a church, there are two documents generated, instead of one — a recognition of the legal union, and a religous sanction of the marriage? The marital church document on its own would not then confer spousal status in terms of government recognition; that civil and contractual authority would stand separately.
Thus, government would not be in the business of defining what is, in essence, a religious ceremony, nor would it be in the business of denying benefits and rights to a subgroup of its population. To receive the governmentally-sanctioned social benefits (like pensions, SS, medical treatment choices, next of kin, inheritance, etc.), every couple, regardless of religious or sexual considerations, would need the same civil document. No one would have special status or preference.
Because marriage and civil status are — or could be — distinct entities.
I have some examples in mind, and as is (perhaps far too) often the case, the first of them comes from Polimom’s own life.
When I got married the first time, we had a good friend who was a Justice of the Peace — authorized by the State of California to confer legal matrimonial status. She was not a minister with a mantle or a cross; she wore a suit… and she wore it during the ceremony in the Army’s post chapel. It didn’t matter enormously to us, though, because we wanted to include our friend; because the document we came away with was no different from what we’d have received had we gone through a minister, we could arrange things in our own unique way.
Our marital status derived from a single document, and thus there were no issues for us. Churches saw us as married, just as the government did.
Not being affiliated with a specific religion, however, does not mean the traditional was unimportant to us. If our friend’s legal authority had meant we were not “married”, I’m positive that AC’s daddy and I would have done things differently. For us, it would have been important to come away with two separate documents: recognition of the civil contract and the religious marital sanction. But it would have been our choice.
What about homosexual couples, then? They could be united civilly by anyone sanctioned by the state to confer such a status (like a JP), and thus be recognized by the government in precisely the same way as any other couple. They would receive the same civil document as I and my husband. If a gay couple wishes a religious sanction, that would then be between themselves and their church — because it would be a separate recognition, and thus would produce a separate document.
In this framework, there are no questions about whether one state would or would not reciprocate in recognizing marital status; the status of “marriage” is returned to the institution uniquely responsible for the term itself — the church.
And finally, there’s the Pandora’s Box of polygamy. As enjoyable as the discussions can be (Polimom sometimes entertains DH, for instance, with “what ifs” on my proposal of his status as Husband #1) — there are potentially some wider ramifications. However, polygamy is also part of a number of religions, and within that context cannot simply be dismissed.
So let’s say Mormons (or Muslims) choose to bless the union of a man with a second or third wife. They could, then, issue this couple a religiously sanctioned recognition of the marriage. However, the government is in no way required to extend benefits to multiple spouses; within the civil and benefit arena, assigning legal status to only one spouse is perfectly within the government’s area of responsibility, because there are economic and legal ramifications. Thus, a second (or tenth) spousal union would not receive a civil union document..
If the religious document does not define how a relationship is treated from the civil / contractual standpoint, then it doesn’t affect me (or you) anymore.
* * *
In a nutshell — what I’m proposing is that we separate the legal status from the religious. If we did this, those who are (rightfully, I think) defending the religious aspects would no longer feel that marriage itself was under attack, while government would no longer be placed in the position of defining who can or cannot receive benefits via a religious doctrine or definition.
FWIW, I ran this proposal by a number of people, including a staunch libertarian / federalist, and a devout Catholic. Both of them thought that this idea worth tossing out to the wider world for mastication and digestion.
So — what do you think?
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I suggested something like this a while back over on my blog. I think it’s a good idea, because it gets at the big confusion of the gay marriage debate – we’re talking about two different things. So one person says, “I want my government to treat me the same way as it treats you,” and someone else says “I don’t wan t you to tinker with my religious ceremony,” and nothing really can be resolved.
I’ll also note that some religious gay marriage opponents have utilized this confusion quite effectively, planting the idea that if same-sex marriage is legal then churches will be forced to perform same-sex ceremonies. Which is an outlandish claim; apart from being utterly unconstitutional, there’s no indication that courts are willing to intervene in what happens inside a church (one area of law that has never really changed). The government has never even tried to get a Catholic Church to perform a wedding for someone who’s been divorced, for goodness sake.
But it does get people nervous, and given how many of our citizens are woefully ignorant of what their own Constitution says, it’s an effective organizing tactic.
You write:
“What if, when a couple gets married in a church, there are two documents generated, instead of one — a recognition of the legal union, and a religious sanction of the marriage? The marital church document on its own would not then confer spousal status in terms of government recognition; that civil and contractual authority would stand separately.”
That’s the way it is now. What else happens during the ceremony — whether religious or civil — is irrelevant to the legal requirement (in my state at leas) that the spouses-to-be say the words, “I take you as my husband/wife.” If conducted in a religious setting, the religious organization can generate whatever paper it wants. They can do that now, or not, as they wish.
That being the case, it’s not clear what you’re suggesting.
John W — to have arrived at the point of standing in front of an official who will perform a ceremony, a couple first had to apply for a license. It’s that license that kicks off the entire chain of events, and after a union is joined, it is the license that is finalized and returned to the government entity (here, the county clerk). The ceremony itself is the second stage in a process.
If that certificate is called a “marriage certificate”, then the approach might be to replace the word marriage with something else (civil union? legal union? pick a non-volatile term….), since it is the document upon which everything currently rests (as you said).
Once they have official authorization in hand, if the couple then chooses to unite in front of a JP, it would merely finalize the documentation. The union has been joined. On the other hand, if they choose a religious ceremony, the church official would still be finalizing the union (as they already do), and could likewise confer “marriage”.
In both cases, the “uniting” gets recognized by the state, but only in the latter is it a marriage, as defined and defended traditionally.
What I’m trying for is a way to distinguish between someone “marrying” — as in religious sanctification or blessing of a union — from legally uniting in the eyes of the law. From where I sit, it’s this blurring between the separate entities (church and state) that is causing the problems.
Also — in this state (Texas), there is no specific wording or phrase that must be spoken to validate a union. It sounds as if your state has inserted the religious terminology directly into its governmental process. Do you have a link to that requirement?
And did this clarify what I’m proposing for you?
The government often gives preferential treatment to one group of people or another using its lawmaking and regulatory powers. For example, the tax code is used not only to collect so-called revenues but also to encourage behaviors such as investment and to provide subsidies such as dependent deductions and the child tax credit, to name just two.
In other words it’s a function of the government to encourage behaviors that the public as a whole deem desirable and to discourage the opposite.
Polls clearly indicate that gay marriage is not desired by a majority of Americans. In this situation, the proper response of a republican government is to either penalize the undesired behaviors or to reward the desired ones.
In the case of defining marriage we’ve gone with the latter to-date and rightly so – the purpose of coupling, after all, is to produce more ACs, and that’s what’s important, not giving legal sanction to undesirable unions.
The purpose of coupling is to produce children? That’s interesting. Why do we let infertile people marry? Why are post-menopausal women allowed to get married? Do they ask if you’re planning to have kids on the marriage license application?
Meanwhile there are same-sex couples doing the actual hard work and making the personal sacrifices to raise children.
marc said (among other things):
But marc, is it the “marriage” aspect that is not desired? Or the civil union?
My money is on it being the former. As I have commented elsewhere, we got ourselves into this fine mess by overloading the term “marriage” (that is, putting both a religious and a civil definition on the word.) Certainly, a “civil union” (which IIRC John agreed could be automatically ratified in a religious ceremony of marriage) is one way out of the morass, but I truly think we need to narrow the scope of “marriage” to the religious sense, or else we will never come to a reasonable resolution (reasonable in the sense of “something all sides can live with.”)
My guess is that altering the meaning of a word (in this case, marriage) whose meaning has been pretty much a given for about as long as human civilization has existed (I am still waiting for some evidence that any society in the past has sanctioned long-term homosexual relationships as marriages) is what is getting folks’ dander up. However, given that modern Western society has recognized the existence of such relationships and no longer automatically criminalizes them (though this is not necessarily the case in other societies), it stands to reason that we need some means for conveying the legal ‘benefits’ of traditional marriage to such couples.
At the same time, the “marriage amendments” aren’t only aimed at preventing “gay marriage” – given that they tend to define marriage as being “between one man and one woman”, they also exclude polygamous (the “one and one”), as well as adult/child (“man” and “woman” referring in this instance to adults) marriages, both of which are totally acceptable in some societies.
Oh, and I think that putting this issue up before the people (via the legislative chambers) is a much better solution than having judges issue rulings altering the meaning of marriage. Despite what some may think, how we as a society choose to structure our institutions is something that the people need to buy in to, not simply leave to small groups of folks to determine.
~EdT.
I absolutely love your idea, Polimom. While you would convince many, I think there’s a fundamental problem we’re missing. When marc commented, (I’m assuming “he”), he didn’t say one word about your proposal. He said that those unions were “undesirable” and that we should listen to the majority. People who oppose gay “marriage” or “unions” say that they oppose it because of the religious undertone – that it would undermine their religious meaning of marriage. (Just as a side note, I honestly think that the high rate of divorce and domestic violence ruin marriage a hell of a lot more than gay unions.) However, people don’t oppose it because of that – it’s simply their reason. They oppose it because they don’t want it – they don’t want to see it, hear about it, or think about it. And nothing you say or do is going to change their mind. People who oppose gay marriage oppose homosexuality altogether. And when you think gay people are wrong in themselves, you will never agree with something that lets them be together.
Jess —
You’re absolutely right; there are people who simply cannot make it past the “homosexuality is wrong, and I oppose it, no matter what” level. However, I disagree strongly with marc’s suggestion that there is a majority that is stuck there.
The vast majority of people I’ve spoken with (out here in my conservative suburbia) agree, generally, with what I’ve written here. Conservativism, in its pure sense (sans religious override) is not interested in legislating morality. Liberalism isn’t, either.
Unfortunately, “the people” don’t ever register their actual opinions, nor are the options ever presented to them in a way they can understand. Everything is overwhelmed by heat and rhetoric, and the zealous screeching tends to mute other dialogue.
Ed — I agree that legislation is more sensible than a judiciary forcing issues. Unfortunately, when legislation is narrowly focused to shut out a sub-group of the population (as it has often been), the role of the judiciary is to protect the sub-group.
Until legislators can distinguish between the religious (not their job) and the civil, I think we’re stuck on a see-saw.
I wish there was a way to send this little post to somebody in a position to do something about it…
Thanks, everyone, for your input.