March 9, 2004
The Establishment Clause Dodge (Yet Again)
Pleasant to get a ping from b!X this afternoon that directed me to one of his latest entries on the queer marriage issue as it's playing out in Oregon. The entry centered around an opinion released by the State of Oregon Legislative Counsel, which asserts that as far as Oregon's constitution is concerned, the state can't deny same-sex couples marriage licenses.
It goes one step further and points out that creating two categories of marriage (one we call "marriage" and reserve for straight people and one we call "civil unions" and provide as the only means by which same-sex couples can be "wed') is not a suitable alternative: "Providing same-sex couples with a separate civil contract, such as civil union, is not sufficient; separate is not equal."
The last third of b!X's post quotes the part that really made me perk up:
There may also be another alternative: Instead of giving opposite-sex couples a "marriage license" and same-sex couples a "civil union license," the Legislative Assembly could authorize clerks to issue "commitment licenses" (or whatever designation the Legislative Assembly chooses) to all couples. This system would leave "marriage" to religious organizations, with the state authorizing the issuance of the license and the religious organization performing the "marriage." Each religious organization could then decide for itself whether to perform "marriage" ceremonies for same-sex couples.
As b!X notes:
Making the distinction -- as, we're told France and Mexico have already done -- would not only be the more proper thing to do from a church/state separation point of view, it would serve to rid the debate of the distraction of what we'll call semantical overlap. It would also help reveal just who it is that truly is opposed to same-sex unions of any kind, regardless of whether they are at all touched by a "religious" term.)
It's good to see the state Legislative Counsel throwing this out for discussion. I'm not really into the declaration of one of Multnomah County's recent newlyweds, who said the county is merely "riding the tide of history," because faith in inevitable progress (which always seems to mean "things going your way") is just another way of tacking "and a pony" onto your program and waiting around to get your heart broken. Rather than banking on historical inevitability, we need to be framing this debate in a way that's fair and equitable, and in a way that helps the benighted souls who think their church doors are going to be forced open understand that this is a secular policy issue, not one that will impact their right to worship as they see fit.
I promise to harp on this as assorted policy bodies, lawyers, advocates, and politicians throw the idea around.
I like the Establishment Clause Dodge a lot myself, but I think in the end I might prefer to stick with "marriage" for everyone, just because I think that the ECD will let too many homophobes think they've dodged a bullet. What would happen to existing marriages and marriage licenses? Spouse and I were married by Elvis and are, respectively, a strong and a weak atheist, so ours is not a religious union in any sense -- but we still have a "marriage license". It's the likely grandfathering-in of those documents that maintains a sense of "separate but equal" with which I am uncomfortable.
But I'm just thinking out loud here, and I do like the idea of separating the civil and religious aspects of marriage.
Another thought -- what would we call the new civil contract and license? The term "civil union" seems a bit tainted now by the "separate but equal" idea.
Oh, and hey -- nice blog you got here.
Posted by: sennoma at March 10, 2004 8:16 AM
I'll admit it: I have no problem with homophobes thinking they've dodged a bullet. If their fears of government encroachment into their spiritual lives are part of what's driving their objections, then removing that impediment strikes me as useful.
Speaking from the catbird seat of a happily married straight person: It isn't about winning kulturkampf, it's about coming up with a reasonable solution that addresses the concerns of as many people as possible in our society while remaining just and equitable.
The changes we're seeing manifested at the civil level right now are already being seen in some churches, and that's a process that will surely accelerate over time. Rather than hastening the disruption that will cause, it seems best to obtain a reasonable peace in the secular world so these faith-centered disruptions stay where they belong: in the churches.
Re: Grandfathered marriages: Seems best to just say "Any recognized marriage prior to enacting these definitions remains in force and will continue to be recognized as such."
There's no way to go back and retroactively marry people the same way we couldn't, with womens' suffrage, go back and re-vote.
Finally if everyone's got the same civil recognition, it's not an issue of "separate but equal." At worst, it's a question of "equal but not able to get married in certain congregations where such a union would be considered a sin." That's got to be a matter those faith communities settle for themselves. We (meaning the secular world and secular authorities) have no place trying to use the law to get them to do anything else.
Posted by: mph at March 10, 2004 12:32 PM
As I said, I like the idea -- but I have more caviling if you can stand it. We already have civil contract + religious/other ceremony. The problem is that we call it by one name, "marriage", a word that has enormous emotional resonance. If a minority of states start to use two names, reserving "marriage" for the ceremony, the majority of "marriage" is still off-limits to gays.
There's a devil in the details, too: what will we call the civil contract? Will those who don't want a ceremony call themselves married, or "contracted" or "pair-bonded" or something? I don't think that question is as trivial as it may seem at first glance, because of the emotional weight of the term "marriage".
For these reasons, it seems a much slower process to create a formal recognition of the contract + ceremony nature of the bivalent institution we call marriage, than simply to let gays marry.
On the other hand, it doesn't seem too far-fetched to imagine that, if society adopts the ECD, we might see a period of strong separation of contract and ceremony, followed by a slow return to the use of a single term (maybe "marriage", maybe something else), only this time including gays as a simple matter of fact reflecting the gradual disappearance of prejudice. This scenario comes with the bonus of a body of case law accreting around the contract + ceremony approach, locking in one more separation between church and state.
I think I just talked myself around to your point of view. Emotionally, I would still prefer to continue to call the contract a "marriage license" and have the law say that there is no basis for denying it to gays. The ECD compromise does seem workable, though, and the prospect of another formal brick in the wall between church and state is mighty appealing. Also, you're right, it's about securing rights not poking homophobes in the eye. (By the way, kulturkampf? Ouch, dude. Ich bin kein Bismarck! But I phrased my point badly; I meant that the ECD seems potentially to leave prejudice some breathing room, whereas gay marriage seems like another nail in its coffin.)
For now, I think I'll fence-sit: that is, the goal is equal rights and I'll throw my weight behind whichever mechanism for establishing that goal seems likely to bear actual legal fruit.
Posted by: sennoma at March 11, 2004 1:56 PM
I feel pretty fence-sitty, too, in terms of program.
I mean, I'd like it if proactive legislative steps were taken to defuse the semantics involved, and I definitely like the idea of more church/state separation. I'm pretty wildly impatient with what I detect to be a desire to "win" vs. a desire to reach a reasonable compromise. But what's most important to me is that we continue to develop an understanding of society that's inclusive and liberatory. If we can do that without scaring the more reactionary elements out of their wits, I'd prefer that. It's a pretty divisive season, though, and there's certainly a sense that the other team has taken much less care with our sensibilities than I propose we take with theirs.
And yeah, there will be some interesting semantic acrobatics for a while before everyone gets around to saying "married" again, though it could be a more secular understanding of the institution will just have people falling back on the old "partner" chestnut. And I'm guessing that more reactionary communities will be putting scare quotes around "married" and "husband" and "wife" for a long while to come.
Posted by: mph at March 11, 2004 3:21 PM