Δαφνη Ευτυχια Αρθουρος

(About 3/4 of a day behind on my friends list, so maybe somebody else has said this by now, but...)

More thoughts about same-sex marriage, civil unions, religious objections, and so forth, led down this path: (Many of you will have heard me say most of this background before, so you can skip down to the section labelled "My Suggestion")

A large part of the problem folks have is with the word "marriage", especially since it's a religiously loaded term. I've heard people present arguments against recognition of same-sex unions on religious grounds, saying that marriage is a religious institution, and I've heard other people saying that marriage is a civil contract, implying (but usually not stating) that religion has nothing to do with it. The thing is, as I've pointed out before, neither of those is accurate.

There are two things we call by the name "marriage": religious marriage, which very much is a church-thing, and civil marriage, which is a state-thing, except that it often happens at the same time as the church one. (By "happens" I mean "is established". The wedding happens on a day, the marriage happens for (one hopes) a very long time.) The fact that a legal wedding occurs on the same day as, and as part of, a church wedding, and that in most places clergy can perform legal weddings, makes it difficult for many people to separate the two ideas that share a noun.

(But two things demonstrate that they are different. First, the fact that clergy are not required for a legal wedding -- a justice of the peace can create a legally binding marriage -- and second, that at least in some states the blessing of clergy is not sufficient to create a legal marriage -- a marriage license has to have been granted first. When I've married people, my performing the ceremony makes them married in all the ways important to them personally and to their community, but it's not a legal marriage until I sign the license that the state issued. In fact, I had to marry one couple twice because they'd screwed up and not gotten the license in time, so they celebrate their anniversary on the day I performed the ceremony, but as far as the state is concerned they didn't get married until a week or so later when I signed the license. Clearly two things took place, not one. And one of those was religious and the other legal.)

Because civil marriage does exist and is really the important thing in a discussion on rights (a church can decide for itself who it will or will not marry; the state must not discriminate absent a damned good reason, and all the legal issues are tied to the civil aspect), I've maintained for some time that there are two fair and just paths the State can take: either extend civil marriage equally, without gender-discrimination; or get the heck out of the marriage business altogether, leave "marriage" to the churches, and make every couple who wants the benefits and protections currently afforded by civil marriage do it the hard way with ordinary legal contracts. But a new spin on both of these ideas has come to mind.

"Civil unions" were put forth as a compromise, an attempt in some places to give same-sex couples some, but not all, of the benefits of marriage. An attempt in other places to give all of the benefits on a local level without presuming to have any effect on larger jurisdictions. And an attempt in a few places to create a parallel institution to marriage but without the "hot button" name. The problems are that the first does not address the intrinsic unfairness except halfheartedly, the second doesn't solve the problem beyond "partners of city employees can get health insurance" (one corner of the problem), and the third usually involves having hets and gays play by slightly different rules (creating a new inequality) and still falls prey to the problems of the second because other jurisdictions (including the Feds) will duck because the name isn't "marriage". As that judge in Massachussetts pointed out, separate is seldom if ever equal.

My Suggestion

So how about this: We change the name of civil marriage -- all civil marriage -- to "civil union" so that people can remember the difference between the legal thing and the religious thing?

We extend civil unions to same-sex and opposite-sex couples equally, and we transfer all of the current benefits and side effects and legal status of marriage to this same-institution-under-a-new-name, thus preserving the construct so many people already rely on while ending the discrimination that currently denies those benefits to same-sex couples, and we have the state ignore anything called "marriage", leaving that word to the church institutions. Thus the religious objections to ending the discrimination go away, without creating a "separate and trying to be nearly equal but failing" situation. The separation of Church and State becomes clearer, ending the confusion caused by two distinct institutions that share a name and an anniversary.

Admittedly it'd probably be simpler just to end the discrimination while retaining the name "marriage", as seems to be the direction we're headed gradually and with much wringing of hands and ugly words, but I wonder whether this way might be quicker, bringing the two sides closer to agreement, speeding up the process and sidestepping much of the ugliness and the period of confusion as different states recognize different things ...

... and maybe even make it so neither side has to feel it has "lost". Gays and lesbians get their rights and equal protection under the law, and religious conservatives now better able to see the distinction between the religious and legal institutions get to keep "marriage" as a religious term and preserve the sanctity of that holy institution as they see fit, without feeling that they "lost the battle of changing the definition". Without a "loser" side, perhaps we can avoid having a pool of deeply resentful population attempting to push the pendulum back the other way, or feeling oppressed.

Looking further ahead

Of course, since some churches will perform same-sex marriages (in fact some already do, it's just that those unions aren't recognized by the State), the term "marriage" will eventually come to refer equally to same-sex and opposite-sex couples, but it'll be a natural social and linguistic evolution rather than a decided-by-law sudden change. Two hundred years from now the results will be the same. The difference I see with my proposal concerns only the next fifty years.

So do I have something (even partially) here, or does all of this mean I got up to early and should go back to bed?