In an op ed in today’s Los Angeles Times, Douglas W. Kmiec argues that the simple way to resolve the Proposition 8 controversy is to cross out “marriage” and substitute “civil union” in California statutes. I held a similar view years ago, but I’ve changed my mind. And I have two reasons for arguing that same-sex marriage should be marriage, period, not “civil” anything.
Unless there is agreement at all federal levels that “civil union” and “marriage” mean exactly the same thing under the law, California by itself cannot resolve some of the more intractable issues of same-sex marriage. These include whether “civilly unioned” couples are entitled to the same federal benefits, tax filing status, etc., as their married co-citizens. It also doesn’t tell us whether other states may recognize civil unions in any way.
But my larger objection is this: The word “civil” in this context means “Of or relating to citizens and their interrelations with one another or with the state.” It also means “Of ordinary citizens or ordinary community life as distinguished from the military or the ecclesiastical.”
In other words, by creating a dichotomy between marriage and civil unions, we are saying that marriage is something recognized and authorized by more than just the state. Marriage has the weight of ecclesiastical authority on its side, whereas civil unions are merely a legal contrivance. I argue that this dichotomy does not reflect reality.
First, marriages are not always blessed by clergy — judges and ship’s captains can do the job as well. Further, not all religious institutions are opposed to same-sex marriage. Some — a minority, I admit, but some — are just fine with it. And I argue that not recognizing same-sex marriages performed in those traditions as marriage is a form of religious discrimination.
The usual argument from religious institutions is that recognizing same-sex marriage would force them to perform such marriages, in violation of their beliefs. I would support language in the law that permits any religious institution to refuse to marry a couple for any reason. I believe they have that right now. I’ve often heard of priests and ministers refusing to perform wedding ceremonies because the engaged couple were not both of the same faith, or because the engaged couple were already living together. But if it makes everyone feel better, then fine; let the law clearly state that a religious institution can refuse to perform or honor same-sex marriages without penalty of law.
However, my understanding is that a few religious institutions have been performing same-sex wedding ceremonies for a while, and same-sex couples are recognized within that organization as being “married” in every sense of the word. These institutions include Unitarian Universalist fellowships and at least some Buddhist sanghas. I know American Zen priests who have been performing same-sex marriages for many years. Episcopalians may be heading in that direction also, and it wouldn’t surprise me if some Episcopal priests have presided at same-sex wedding ceremonies, even if they aren’t yet officially sanctioned by the church.
Yet the law does not recognize these couples as being married. On the other hand, some religious institutions are demanding the law reflect their sectarian beliefs opposing same-sex marriage, which to me clearly runs afoul of the establishment clause of the First Amendment.
I say the only way for the law to avoid religious entanglement and be free of religious discrimination is to recognize same-sex marriages but make it clear that a religious institution can refuse to perform them. We don’t need to be “civil” about it.
Update: I confess to being very tired right now, and I discussed the Los Angeles Times article without reading it through to the end. So I missed this paragraph:
The federal action was brought on behalf of two gay couples who were denied marriage licenses after the ruling that upheld Proposition 8. If such an action were instead brought in state court, California would have an opportunity to bring equity to both sides. The attorney general, in defending the state’s interest, could ask for a court order enjoining the state from using the terminology of marriage altogether. Instead, the state would give everyone — gay or straight — a civil union license and allow churches, synagogues, temples and mosques to say who can and cannot “marry” within their individual traditions. Religious freedom, a bedrock constitutional value of like importance to equality, would also be a winner.
That has some internal logic to it, although I don’t think it would fly. It still doesn’t solve the issue of federal privileges and protections. And what does this say to atheists? Surely there are atheists who would like to call themselves “married” but who, as a matter of principle, would not take part in a religious ceremony.
It occurs to me also that there are many circumstances in which a couple might be married under the law but not in a church. I understand that Catholics who have not had a first marriage properly annulled by the Church cannot be married in the Church, for example.
All gay people want is the same legal rights and privledges given to straight couples.
Get it through your heads, conservatives – no one is MAKING, or going to make, a church perform a marriage it doesn’t want to. We’re the people who want seperation of church and state, remember?
I need some clarification here. How is a civil union legally different than marriage? When a heterosexual couple has a civil union – serviced performed by a Justice – aren’t they considered legally married with the same benefits as a heterosexual couple married by clergy? They consider themselves “married”. Why would it be any different for gay couples? If civil unions were legalized for gay couples, wouldn’t they also have all the same benefits as hetereosexual couples?
The controversy must be separated into 2 segments – the religious issue and the civil issue. The religious faction can entertain any view they wish, but the civil issue is a matter of civil rights. The overarching question is: are same sex couples denied their civil rights by being denied the right to marry? That question I leave unanswered for lack of space.
Most worrisome is the fact that many politicians decide the issue on the basis of their religious orientation. Such politicians (and there are many) are violating their responsibilities by refusing to recognize the separation of church and state.
How is a civil union legally different than marriage?
Ask the vast number of politicians who say they are for civil unions but against gay marriage. This is from “legal dataase”:
I’m saying that unless there is federal law that says civil unions have the same privileges and protections as marriage, then swapping the words “civil union” for “marriage” is not a solution.
And if it has the same privileges and protections as marriage, then let’s just call it marriage.
Why not just change all the statutes relating to the state contract of marriage be called civil unions whether they are hetero or homosexual. The question of an annulment of a civil marriage does not occur. NO civil marriage is sacramental. An annulment is a statement that a sacramental union was not in existence when the marriage was entered. There is a form that must be completed, but it is not an anullment
I understood your point, maha. It’s the terminology that confused me. I was unaware that civil weddings and civil unions are two different things.
I live in MN where a non-religious union is called a civil or court “wedding”. It bestows the same rights and benefits as marriage yet is apparently different from a “civil union”. All of these the terms seem to be used interchangeably here in MN (at least by laymen) although same sex relationships are not legally recogized here no matter what you call them. This had led to a common misconception that gays already have the right to civil unions in MN and this whole argument is about forcing churches to marry gay couples.
In my opinion, we should call them all civil unions regardless of the gender of the folks involved – going to the courthouse and signing the papers would create the union. If people then want to get “married”, they could arrange for a separate religious ceremony. This would effectively separate church and state. Although, as you stated, this would require federal action to ensure that all states recognize the legality of all civil unions.
I’m not sure where I fall here. On the one hand, I agree with everything Maha says about marriage not being equivalent to civil union; on the other hand, if straight people in the most populous state had to deal with the same crap gays do when it comes to having their marriages (er, “civil unions”) recognized in other states, people might stop saying the two are equivalent.
As a matter of pure theory, I think having the state stop using the word “marriage” would be great. I don’t see why every entity at every level has to have an opinion on my marriage. My wife and I say we’re married, and if we were members of a church, presumably the church would agree (or we’d go to some other church). The county, state, and federal governments all agree too. But we’d still be married if they all decided to stop having an opinion on the matter. We’re married because we stood under some flowers and held hands and said “I do” to each other 18 years ago, and that isn’t gonna change.
But the word “marriage” is encumbered with all these legal implications at every level of government. It would be nice if it weren’t, but getting from here to there is a lot harder than getting from here to legal same-sex marriage.
BadKitty, as I understand it, the “civil union” for same-sex couples would be something apart from marriage. The concept seems to me a dog biscuit that middle-of-the-road politicians (Obama included) are trying to throw to both sides. In locales where “civil unions” for gays have existed, gay couples had a separate status from legally-married heterosexual couples. It was irrelevant where the hetero couples got hitched; they had a “marriage,” but gays had a “civil union,” even if joined by a religious ceremony. The concept is “Jim Crow” for gays, an absolute nonstarter imo.
When I was getting my degree as a paralegal, I learned in Family Law class that the law– the government— views and for ages has viewed marriage as a contract, nothing more or less. It’s religion that views marriage as something sanctified. To erase the line between government and church by petitioning government to “defend the sanctity of marriage” is a blatant violation of the Establishment Clause of the First Amendment. Restricting the right to participate in an otherwise valid contract, purely on the basis of a participant’s gender, is a blatant violation of already existing civil rights law.
“Civil unions for all” wouldn’t be any better. It would either a) interfere with the right of religious institutions to perform the sacrament of marriage; or b) create a separate class for religious ceremonies (“marriage”) and non-religious ones (“civil something-or-other”). Again, both scenarios would violate the Establishment Clause.
Over on Huffington Post, the wonderful actress Patricia Clarkson (The Green Mile; Six Feet Under) has posted the text of a speech she gave on this topic. Here’s a sample:
Awesome.
joanr16… Good comment @1:22 pm. I took note of your comment on the DOMA thread where you said that Obama wasn’t being an honest broker ( separate but equal). I thought that pehaps he was just trying to sidestep the semantics of the term marriage in order to achieve equal rights for gays, but after researching DOMA I see that his sincerity and honesty don’t measure up to the spirit of his words. It’s obvious that until DOMA is knocked down all attempts to broker equal rights will just be meaningless bullshit.
My concern is that even if marriage is reduced to a simple contract in law can Congress still define the definition of marriage and spouse within a legal contract to circumvent constitutional issues and standing laws.
A long time ago, in a galaxy far, far away………
Well. about 30 years ago when we lived in Ca., we had some real nice Catholic neighbors. My beautiful young wife decided that she wanted to go back to the “Church” after being out of it for a number of years, and after her reckless decision to marry this hell bound infidel.
Part of her going back to the “Church” was receiving “Holy” communion, but in her conversations with the church pastor at her weekly catechism class, she was informed that she could not “get the cookie” unless she convinced me to get married in the “Church”. The pastor was a grizzled old veteran, no doubt battle hardened from his many fights wth the minions of hell and performing numerous exorcisms.
My beautiful young bride came to me in tears, pleading with me to obey the will of the ancient sage, but I had had enough of the old religion, having attended religious school since 2nd grade,and having been mercilessly assaulted by women dressed as penguins.
To make a long story short, I suggested that she seek counsel with the hip young priest at the Catholic church around the corner instead of Monsenior Archie Bunker. It worked like a charm. The young padre saved the soul of a beautiful damsel in distress (and got her 10% per week), she got “the cookie”, and I was allowed to remain a hell bound infidel.
35 years after our “union”, we are still together.
She no longer goes to Sunday morning aerobics.(her decision)
I’m still a hell bound infidel.