Comprehensive Reform
I’ve been thinking about this issue for a couple of months, and I’ve commented on at least one blog post concerning it elsewhere, but I’ve still pondered whether to write about it at all, here. Those on one side of this issue who cry that they “didn’t get to vote on [my] marriage” seem to think that I should not be entitled to an opinion. But to me, it’s bigger than that; it’s not the “gay-marriage issue”; it’s the “marriage issue.”
Those who are familiar with my libertarian politics (i.e., my relatively liberal social views), and with my Lutheran religious background, will probably not be too surprised by what I have to say here. Some might be, though.
The “gay marriage” issue has been a hot-button issue in the past two major election cycles in the US. To me, this has been relatively surprising, in no small part because all four major party candidates in those two cycles (George W. Bush, John Kerry, Barack Obama, and John McCain) have held very nearly the same view on the issue: No to marriage, yes to civil unions. How activists on both sides of the issue have managed to make it a major issue in years where there’s no measurable difference between the candidates, and in consecutive election cycles when there’s no measurable difference among the candidates…well, in terms of sheer power of will, my hat’s off to all of them.
But they’re going about it all wrong.
California’s Proposition 8 in 2008 is a prime example. Most of us watching, particularly those watching outside of California, would have given Prop 8 about a snowball’s chance, quite honestly. California is one of the bluest states there is, it is notably liberal in all its policies, and—in fairness—its Republican governor would likely be more closely aligned with Democrats in most other states. How did Prop 8 pass?
The opponents of Prop 8 would have us believe that it’s about the “religious right”—conservative evangelical Christians and Mormons, primarily—exercising their hatred of gays and lesbians by passing this prejudicial and unfair law. And they’re not entirely wrong in thinking that: the law is unfair and prejudicial, and evangelical and Mormon conservatives did play a part. But that’s not the whole story. Do we really believe that these groups, alone, in the State of California, could have passed this law, given the general flavor of California politics?
The 2008 election cycle presented a “perfect storm” against which it proved impossible for opponents of Prop 8 to prevail. Barack Obama’s candidacy energized Democrats nationally, to be sure, but—like their presidential candidate—many of these voters hold the position “Marriage, no; Civil unions, yes”; and they voted to quash the labeling of gay unions as “marriage” (right or wrong). Furthermore, Mr. Obama’s candidacy energized not only traditional Democrats, but also minority populations, again nationally. This brought a great many African-American and Latino voters to the polls—voters who might not have otherwise participated, feeling that no candidate on offer represented them (and, historically speaking, who can blame these voters for feeling this way?).
In these groups, however, there is a tendency to take a dimmer view of homosexuality; gay African-American men, for example, are often forced by community and social pressures to keep their sexuality “on the down-low.” Certainly this is not true of all African-Americans, nor all Latinos, and certainly there are gay and lesbian members of these communities who are out and proud. But taken as a whole, though the motivation and participation of these groups helped Mr. Obama to win California by a wider margin—if possible—than expected, it seems to me that this also contributed to the passage of Proposition 8.
Whether Proposition 8 passed or not, and why, really isn’t the issue here, though it’s interesting to consider the reasons in their complexity. The issue is that both supporters and opponents of Proposition 8 in California, and activists on both sides of this issue in a broader sense, have framed this issue incorrectly. And our politicians (particularly the four presidential candidates mentioned previously) have not helped. “Marriage, no; Civil unions, yes” is nothing but a retread of the “Separate but equal” legal doctrine that our courts, and broader society, have resoundingly rejected when it comes to the rights of any other group in the United States that you care to name.
We do not, that is, need to decide what to call it when gays and lesbians affirm a long-term commitment to one another. We need, instead, to comprehensively reform the legal institution of marriage in the United States. And that reform must be based on another American legal tradition: Separation of Church and State.
Let me be perfectly clear, here. I believe that the doctrine of the separation of Church and State offers protection in both directions: it protects the Church from persecution by the State, and it protects the State from domination by the Church. The framers of the Constitution were very clear in establishing this bi-directional protection, saying that “Congress shall make no law regarding the establishment of a religion” (protecting the State from the Church) “nor prohibiting the free exercise thereof” (protecting the Church from the State).
What we need on this issue is a legal (State) definition of marriage apart from that term’s religious definition, and recognition of the Church’s fundamental and guaranteed prerogative to practice only its own definition of the term, in a purely spiritual sense.
Specifically, this requires:
- The state definition of marriage should included any solemnized, long-term commitment between any two consenting adults, by the State’s definition.
- Such commitments should be legally solemnized before an agent of the State and in the presence of witnesses.
- Any religious, spiritual, or other ceremony affirming that commitment should be in addition to the State’s legally-recognized procedure.
- Ordained, rostered, or otherwise recognized clergy should not serve as agents of the State for the purpose of solemnizing marriages (unless, as in the case of Ohio Governor Ted Strickland, they are both ordained clergy and otherwise a recognized agent of the State).
- The State should not dictate which unions religious organizations may or must consecrate; this decision should be left to individual clergy, congregations, or other religious bodies, as each religion or denomination chooses.
- All the State (and Federal) privileges, rights, and responsibilities pertaining to marriage (visitation, inheritance, taxation, benefits, etc.) should apply to any commitment solemnized by the state, and to no commitment not so solemnized.
If this comprehensive legal reform, applying to hetrosexual, gay, and lesbian couples, were adopted, it would, first, solve the fundamental problem that the battle here seeks to address: legal recognition of the commitment between two individuals, by the State. It, furthermore, addresses the concern of some religious groups about the potential that a member of the clergy might be compelled to perform a ceremony against his or her conscience, as well as removing from the clergy the obligation of serving, in weddings, as an agent of the State, but in no way hindering the religious celebration of marriage.
The only remaining objection I foresee, here, is that homosexual behavior is considered sinful in many religious traditions, and many members of those traditions would argue that the State should not sanction or condone such behavior in its laws.
But there are many things in our culture, and addressed by our laws that religious groups consider sinful: drinking alcohol, smoking tobacco, premarital sex, and adultery come to mind, as does what is perhaps a more direct analogy—what used to be called “miscegenation,” interracial marriage. Many religious groups consider all of these things sinful, immoral, or just plain wrong, but, as the saying goes, there’s no law against them. The most orthodox of Jewish Kosher laws, in fact, still consider eating shellfish sinful. Under this proposed reform, though, no religious group would be obligated to consecrate any union that goes against their conscience; just as the ready availability of alcohol and tobacco in our society does not obligate anyone to partake, just as Churches are now quite free to preach abstinence and fidelity as virtues.
Keep in mind that I’m suggesting this reform for all marriage in the United States—not only for gay marriage. Marriage should have a legal definition that can apply equally to every adult in this nation, quite apart from the ways in which our religious organizations define marriage. The State, it seems to me, has the obligation to ensure this equality among its citizens, to make sure that privileges, rights, and responsibilities of marriage are equally available to all, all the while safeguarding the individual, corporate, and collective right of the People to freedom of religious expression as well. The State must refuse to say to gay and lesbian couples, “You may not,” while also refusing to say to religious organizations, “You must.”
Only by wholly separating the legal aspects of marriage (the province of the State) from the spiritual aspects (the province of the Church), and not allowing the two to overlap, can equality for all in the eyes of the law and a balance of all freedoms we are guaranteed be achieved.
The skirmishes in the courtroom and at the ballot box on this issue could continue forever. Each side may, indeed, claim small victories in those clashes. But in every case, without comprehensive reform of all marriage, of the very definition of marriage, no matter which side claims each of these small victories, freedom and equality lose.
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