Published 4/2/2006

With mid-term elections approaching, politicians are once again returning to one of their favorite themes: protecting the sanctity of marriage. When same-sex marriage is raised, citizens quickly forget about rampant corruption in Congress, towering budget deficits, or even the Iraq war. Not surprisingly, therefore, a constitutional amendment has been cited as a legislative priority by both President Bush and Republican leadership. The message is clear: What politics and religion have joined, let no one pull apart.
The fact is that the same-sex marriage fight is one that advocates on both sides would hate to end. Money is pouring in, membership rolls are expanding, and advocates have an issue that borders on obsession for many Americans.

Since 2004, almost two dozen states have passed constitutional amendments banning same-sex marriage, and additional proposed amendments are planned for this year in Congress and various states. At the same time, gay rights advocates are pursuing their own legislative efforts and numerous court challenges to establish constitutional protections for the right of same-sex couples to marry.

Before we enter yet another election season of spasmodic referendums and debates over same-sex marriage, one question is worth considering: What if we could end this controversy once and for all?

The real problem with same-sex marriage is not the qualifier but the noun. Religious advocates believe that marriage is a term loaded with moral and religious meaning. Gay advocates want to marry for much the same reason: as a social recognition of their equivalent moral standing. It might be the only political war fought over the proprietary use of a single noun. There is a simple solution: Stop using the word “marriage” in government licensing laws in favor of the more relevant term “civil union.”

Where it all began

This battle began centuries ago, when the government was aligned with a particular faith in a struggle for sectarian dominance. In England in the 18th century, the Church of England was given exclusive control over legitimate marriages. Thus, unless you were married by the Church, your marriage was illegitimate — and so were any children that were produced in that marriage.

Even when marriage “reform” was legislated in the Declaration of Rights in 1776, the government still limited its recognition of marriages to couples married by Anglican ministers. In colonies such as Virginia, the government continued this preference for Anglican marriages (requiring special licenses for ministers of other religions).

This parochial use of marriage recognition continues in many countries. Indeed, courts in Israel recognize only Jewish marriages performed in Orthodox Jewish ceremonies.

In the USA, most states make it a crime to marry couples without government licenses, making even purely religious “marriages” a potential crime. Thus, in New York, Unitarian Universalist ministers Kay Greenleaf and Dawn Sangrey were criminally charged for officiating at weddings for same-sex couples who could not get marriage licenses. Even when Jason West married couples as mayor of New Paltz, N.Y., he was also charged criminally. Thus, the government will prevent a religion or civic group from performing a marriage, even if the marriage would have no legal effect without a marriage license.

If the role of government in maintaining “legitimate” forms of marriage doesn’t make you uncomfortable, it should. In most other areas, the government steadfastly avoids this type of religious squabble, separating governmental functions from religious faiths. Marriage, however, has always been a conspicuous door placed in the wall of the separation between church and state.

The government’s distinction between legitimate and illegitimate marriages takes sides in a controversy that has raged since the formation of the first religions. Many religious groups, which include tens of thousands of Americans, believe in plural marriage or polygamy as a human right and divinely ordained.

Other groups insist on endogamy (marriage within a defined group), while others insist on exogamy (marriage outside of a defined group). While many fundamentalists believe that marriage can only be a union of a man or a woman, other Christians reject this interpretation and embrace same-sex marriage.

The reason that marriage licenses are so valued by advocates is precisely the reason it should be expunged from public documents: It conveys a religious or moral meaning. Conversely, the state interest in marriage concerns its legal meaning. It is the agreement itself, not its inherent religious meaning, that compels the registry of marriages by the government. Once married, the legal rights and obligations of the couple change in areas ranging from taxes to inheritance to personal injury to testimonial privileges.

The government’s policing role over legitimate marriages also produces curious contradictions. While the government criminalizes the marriage of same-sex couples without official licenses (denied to them as a matter of policy), it does not police religious practices governing divorces.

For example, Orthodox Jews believe that a woman remains married regardless of any civil divorce until her former husband gives her a “get,” or voluntary termination of the marriage. Some women have been left “married” for decades by former husbands refusing to recognize the termination of their marriage. Even so, the government still recognizes that they are indeed divorced because we view a registered divorce as ending their civic obligations to each other.

The civil answer

The same approach should apply to marriages, leaving the moral validity of a marriage to religious organizations. For state purposes, couples would simply sign a civil union agreement that confirms their legal obligations to each other and any progeny. Whether they are married in religious ceremonies would be left entirely to them and their faith. The government’s interest and role would be confined to enforcing the civil contract, as it would any other civil agreement.

Consenting adults should be able to assume the obligations of a civil union regardless of how their neighbors view their morality. As in other areas, adults should be able to follow the dictates of their own faith so long as they do not endanger or harm others, particularly minors.

Whether damnation awaits monogamists or polygamists or same-sex couples is a matter between citizens and their respective faiths. The government should address that aspect of marriage that concerns its insular needs: confirming the legal obligations of consenting adults. As for our politicians, there are levees to be rebuilt, corruption to end and wars to win.

Of course, this solution would deprive both sides of the debate of a controversy that has been a political and financial windfall. Nonetheless, the public certification of the moral relationships is not the call of government; it is the call of the faithful. It is time we move beyond moral licensing by the government and return marriage to its proper realm: in the churches, temples, mosques, and the hearts of every citizen.