The Same-Sex Marriage Conundrum - A Proposal

Same-Sex Marriage and Separation of Church and State

The legal and ethical battles surrounding “same-sex marriage” in Massachusetts, New Jersey, California and elsewhere seem to be played out in a zero-sum game. Two sides with implacable positions vie back and forth, and close scrutiny is given in the press to every little loss or victory. There must be some way to resolve the problem which would cause unity, satisfaction and permit the body politic to turn its attention to other issues.

First, let me set out what I understand to be the cutting edge of the problem. The New Jersey issue seems to focus the question in ways no other battle has. New Jersey permits a form of civil union which is, legally, indistinguishable from marriage. The rights and duties of the parties to a civil union are the same as those who have contracted a traditional marriage. But yet, the parties to that union are not permitted to “marry.”

The argument is made that by denying the status of “marriage” the state is devaluing the dignity of the civil union and treating it as some kind of second-class arrangement. There is certainly strong resonance to the argument that it is wrong for the state to dignify a relationship among some human beings, but withhold that dignity from other human beings who have entered into a legally indistinguishable state.

The counter argument, which also has some resonance, is that “marriage” is a traditional arrangement and the tradition does not contemplate the possibility of it being entered into by other than a man and a woman. Whether this argument is found persuasive or not, it would be a terrible mistake to think that that the view is not held as earnestly or intensely by a significant part of the body politic. In fact, if the score card of “anti same-sex marriage” initiatives at the ballot box can be taken as a measure of the country’s temperament, it may well be the clear majority view.

How then to resolve this issue. Here’s a suggestion: consider the biblical injunction to “render unto Caesar that which is Caesars’, and to God that which is God’s” And consider the American tradition of strong separation of church and state. Much of the tension arises because of the mixed nature of "marriage" as a legal state, on the one hand, and as a religious, social or traditional institution, on the other.

The state’s legitimate interest in the relationship we call "marriage" is extensive: it has to do with parenting obligations, property rights, taxation treatment, inheritance rights and a plethora of other rights, duties and obligations. It can’t be denied that the state has an interest. And yet, marriage also has a traditional or sacramental element. Part of the “dignity” attaching to “marriage” has to do with the perceived sanctifying of vows, or actually the taking on of extra-legal moral obligations and commitments above and beyond what the state imposes. So how to accommodate both?

The answer: Get the state OUT of the “marriage” business completely. From a legal standpoint, take “marriage” completely out of the statues and laws - let the ONLY relationship the state acknowledges be that of a civil union. No more marriage licenses. No more state-sponsored “weddings.” Let the state set up some neutral ceremonial commitment process, and the result is a civil union. ALL familial legal obligations would flow from the civil union. Absent a civil union, the state doesn’t care whether you are married or not and the state will not assist or coerce any promises made absent the civil union. In effect, the civil union becomes a special form of contract with its parameters defined by statute.

On the other hand, let churches or other community representatives perform weddings as they see fit. If a church chooses not to permit same-sex marriages within its moral beliefs, fine. If a different church or analogous institution sees same-sex marriages as good and appropriate, go ahead and perform them. The state would NEVER tell any church it had to marry parties of the same sex, and the state would NEVER prohibit a church from sanctioning such a marriage.

BUT there would be absolutely NO legal significance to a church-sanctioned marriage or wedding ceremony. It would have whatever sanctifying or moral impact attaches to the belief of the participants, but it would impose absolutely NO legal obligations whatsoever. You want alimony, parental visitation, inheritance rights, community property rights, etc. - go enter into a civil union. So not only do we get the state OUT of the marriage business, we get the church OUT of the law business.

By separating the functions in this fashion, we would be following the concept of separating church and state, and we would be permitting everyone to have exactly the same access to whatever dignity or approbation attaches to marriage. All humans would be treated equally by the state and yet the state would not interfere with the strictly private activities of religious groups. In the words of Ross Perot, “Problem solved.”