As the Supreme Court hears arguments this week about both California Prop 8 and the federal Defense of Marriage Act, the debate over marriage has reached fever pitch. One problem with the debate is that the terms are being used differently by each side. Fortunately, by clarifying the terms of the debate we also clarify the outcome.
Many religious conservatives argue against marriage equality for gay couples because they view marriage as “a covenant between a man, woman, and God before God on His terms“. The problem with this, of course, is that a secular government cannot and should not enforce religious covenants. Attempting to do so is absurd on its face. Government doesn’t enforce communion rights, endorse the transubstantiation, or preside over confirmation ceremonies. When governments issue marriage certificates, or justices of the peace preside over marriage ceremonies, they are doing so as civil officials, not religious ones. God is sometimes invoked, but not as the consecration of the union, but as a part of the traditions of our still largely religious people.
The issue we are arguing over is civil marriage, not religious marriage. Religions can have their objections to performing certain marriages, and every state that has legalized gay marriage has enshrined protections for churches from performing marriages against their beliefs into their law. And what of the religions and churches who want to perform same-sex marriages? Without state recognition of equality, theirs is meaningless ceremony.
According to the 14th Amendment, the law and civil institutions must be applied equally to all citizens. It is irrelevant how long the “definition of marriage” has been “man and woman” if that definition is inherently discriminatory. If “marriage” must remain an institution that discriminates based on gender, it cannot be an institution of the state. If the social benefits of marriage are to remain, they must be extended to all citizens in the form of generic civil unions. The ceremony for that civil union could then be performed in a church to give the significance (to the participants only) of religious marriage.
The idea of civil unions for all and marriage for churches has gained significant traction, mostly on the libertarian right, and in the end it is the only permanent solution to the issue. The state must stop issuing “marriage” licenses if religious conservatives are so insistent on the semantic debate over the word. It would then be free to issue civil unions to any consenting adults who requested them. To be sure there would still be debate over what is best for society in that regard, but the basic right to associate, form contracts, and “marry” is indisputable and must be extended to all.