When a Jewish boy turns 13, he heads to a temple for a deeply meaningful rite of passage, his bar mitzvah. When a Catholic girl reaches about the same age, she stands in front of the local bishop, who touches her forehead with holy oil as she is confirmed into a 2,000-year-old faith tradition. But missing altogether in each of those cases — and in countless others of equal religious importance — is any role at all for government. There is no baptism certificate issued by the local courthouse, and no federal tax benefits attached to the confessional booth, the into-the-water-and-out born-again ceremony or any of the other sacraments that believers hold sacred.
Only marriage gets that treatment, and it’s a tradition that some legal scholars have been arguing should be abandoned. Two law professors from Pepperdine University issued a call to re-examine the role the government plays in marriage in a paper published March 2 in the San Francisco Chronicle. The authors — one of who voted for and one against Prop 8, which successfully ended gay marriage in California — say the best way out of the intractable legal wars over gay marriage is to take marriage out of the hands of the government altogether.
Instead, give gay and straight couples alike the same license — a certificate confirming them as a family, and call it a “civil union” — anything, really, other than “marriage.” For those for whom the word marriage is important, the next stop after the courthouse could be the church, where they could bless their union with all the religious ceremony they could want. The Church itself would lose nothing of its role in sanctioning the kinds of unions that it finds in keeping with its tenets. And for non-believers or those for whom the word marriage is less important, the civil union license issued by the state would be all they needed to unlock the benefits reserved in most states, and in federal law, for “married” couples.
“While new terminology for all may at first seem awkward — mostly in greeting-card shops — [it] dovetails with the court’s important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow,” wrote professors Douglas W. Kmiec and Shelley Ross Saxer. Kmiec voted for Prop 8 because of the teachings of his Catholic Church and his notion of religious liberty, but has since said he believes the Court should not allow one group of Californians to marry while denying the privilege to others.
Their idea got a big boost three days later, during the March 5 oral arguments before the California Supreme Court, which is expected to issue a ruling soon in the case brought by gay couples and others who argue the constitutional amendment passed by voters last fall is invalid. Justice Ming Chin asked attorneys for each side whether the idea would solve the legal issues connected to gay marriage — issues that at their core revolve around the question of whether some couples could marry but not others violates constitutional guarantees of equal protection under the law.
Both sets of lawyers agreed that the idea would resolve the equal protection issue. Take the state out of the marriage business, and then both kinds of couples — straight and gay — would be treated the same. Even Ken Starr, the Pepperdine law dean and former Whitewater independent counsel who argued in favor of Prop 8, agreed that the idea would solve the legal issues, though he said it was a solution that lies outside the legal authority of the court. An attorney for the other side, Michael Maroko, didn’t expressly endorse the idea, but he told Chin, “If you’re in the marriage business, do it equally. And if you’re not going to do it equally, get out of the business.”
The two Pepperdine professors are arguing that the Court use that line of thinking in crafting its decision in the case before it, short-circuiting the need for a new referendum. Their proposal is aimed at helping speed a resolution on the issue in other states — where gay marriage is heating up in Iowa, Connecticut, Vermont and elsewhere — and on the federal level. All sides on the debate expect the issues bubbling up out of the state courts and legislatures to eventually gain traction in federal courts, too, ultimately leading to a case before the Supreme Court or efforts to amend the U.S. Constitution, or both.
But as Solomonic as the compromise seems, giving up the word “marriage” may be impossible. For many couples who have already joined in matrimony, the idea of the state no longer calling them “married” may seem as if something important has been taken away — even if it’s hard to define just what it is that’s been lost. And for many others — the folks who feel most strongly about marriage, and who most passionately supported the expensive campaign to defeat gay marriage — the issue of nomenclature is only the beginning. They aren’t just against gay marriage, they are against gay couples — and especially against government sanctioning those relationships, no matter what they are called.
And as Justice Chin considers whether he can craft a compromise with his fellow justices that would both uphold Prop 8 — and therefore the right of the people to amend the state constitution — and assert the right of gay people to be treated equally, he may find that the folks who cling hardest to the word “marriage” are the gay couples themselves. After all, what was the most sweeping part of the May 2008 decision Ming and his colleagues issued granting gays the right to marry It was the idea that the word “marriage” itself is so strong that denying it to gay couples violates the most sacred rights enshrined in the state constitution, the right for all people to be treated with dignity and fairness. Just 10 months later, gay couples — whether they are among the 18,000 who married in the state before Prop 8 stopped the ceremonies or not — are loath to lose a word for which so many fought so hard and so long to have apply to themselves.
But the Pepperdine idea does put into a play a new way of thinking — and whether it’s part of the court’s decision in the Prop 8 case, or whether it makes it way into a new referendum, the idea of getting governments out of the marriage business offers a creative way to thinking about a problem that is otherwise likely to be around for a long, long time.
See a story about the U.S. Supreme Court’s gay rights legacy.
What happens when you’re on the gay rights’ enemies list.
Is California’s Supreme Court shifting on gay marriage
