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Sorting Out the Same-Sex Marriage Debate

By Brian | June 8, 2006 | Share on Facebook

Well, it’s election time again and the conservative, Republican President has low approval ratings, so it must be time to talk about same-sex marriage again. Before we begin, let me establish two facts:

1) I don’t believe for a second that we’re discussing this in an attempt to change anything about the laws governing marriage or the U.S. Constitution. This is a political ploy intended to make the conservative base feel better about President Bush, who campaigned on this position in both 2000 and 2004. Since it really won’t affect public policy much and I disagree with his position, I’m more than happy to just hang around until the issue goes away.

2) I, personally, would be thrilled to see same-sex couples granted the full rights and privileges of marriage as it exists today in the United States. My thoughts below are more about what I think is the best practical approach to helping those who are disadvantaged by today’s laws. I do not presume to speak for these folks, and fully recognize their right to tell me to mind my own business and go away.

OK, now that we’ve covered that, here is what I perceive to be the problem: There are many different definitions of marriage in the United States today, and allowing same-sex couples the right to marry under one definition has significant implications under another. People for whom a given definition is prominent, therefore, see the objections of another group (who are using a different definition) as wrong-headed, bigoted, or hateful. In order to have a rational debate that might actually resolve some of the inequalities in the current law, it’s important to clearly delineate these groups and their definitions.

Clear as mud, right? Let me try some specifics. When my wife and I got married, I believe we did three things simultaneously:

1) We made a sacred vow to love each other for the rest of our lives, and to live our lives as partners in everything we do.

To some people, this concept, in and of itself, defines marriage. Note that it doesn’t require government or religious sanction. All it requires is two people who share a common definition of the word “sacred.” People in this group often say things like “Do we really need the piece of paper?” In doing so, they voluntarily opt out of the various benefits and protections afforded to married couples under state and federal law.

2) We participated in a Jewish ritual that has remained basically unchanged for thousands of years.

In the Jewish religion, this ritual actually involves the signing of two binding contracts. The Ketubah, written in the original Aramaic, which spells out the rights and responsibilities of a Jewish husband and a Jewish wife, and the Get, which is a sort-of Jewish pre-nuptual agreement, in which the husband promises to give the wife the religious equivalent of a divorce if the marriage should end (without it, according to Jewish law, the woman would be unable to remarry).

To some people, being married in the “Eyes of God” is of paramount importance. A Justice of the Peace wedding, to these folks, would not constitute a “real marriage,” despite its financial and legal implications for the couple.

3) We signed a binding contract with the State of New York and the federal government of the United States.

This document, called a Marriage License, entitled us to a Marriage Certificate. That certificate guarantees us various benefits and protections under U.S. law. It governs, among other things, the way in which we would inherit each other’s money and maintain custody of our children upon one of our deaths, our right to share health insurance, the way we pay our taxes, our ability to jointly own property (e.g., a home), and many other important domestic issues.

To some people, a legal marriage is of the utmost importance. In fact, many people dispense with any sort of religious ritual and get married in a courthouse by a Justice of the Peace (a government official).

I’m sure there are many other definitions of marriage, but let’s just examine these three for a minute.

Regarding #1, those who oppose same-sex marriage have long since lost the battle. Gay men and women have been living together as spouses for decades, and there is nothing anyone else in the world can do to stop them. This is such a universal truth that it is rarely argued in the debate over same-sex marriage.

Regarding #2, most of the world’s major religions define marriage as a union between a man and a woman. This has been true for millennia, and quite frankly, I can’t imagine it changing now. I also suspect, although I don’t presume to speak for anyone but myself, that most same-sex couples have strong disagreements with the major religions on homosexuality in general, and as such, don’t much care to have their marriage defined or blessed by a particular church/temple/mosque/etc.

Regarding #3, the laws in 49 of the 50 states (Massachusetts being the exception) provide these benefits and protections only to man/woman marriages, and deny them to same-sex couples that have the same kind of relationship. The effects of this situation can range from inconvenient (the need to explicitly adopt your spouse’s children) to tragic (the inability to inherit a spouse’s estate or collect his/her life insurance claim after an unexpected death, if proper documentation isn’t established beforehand).

When the political debate over this issue is conducted, it is my strong belief that the proponents of same-sex marriage argue for equal recognition under the law (definition #3), and the opponents argue that expanding the definition of marriage would violate God’s law (definition #2). The relatively low polling numbers for same-sex marriage and the relatively high numbers for gay rights suggest that many who oppose same-sex marriage on religious grounds would be happy to grant same-sex couples the benefits and protections that the law provides man/woman married couples.

One solution to this conundrum has been to create a new category under the law called “Civil Unions,” which could be granted the same rights and privileges as married couples, but leave the concept of marriage consistent with the prevailing religious views. Unfortunately, the term “civil union” has become synonymous with those that oppose same-sex marriage, and has come to be seen as the “not-really-a-marriage marriage,” calling up images of the “separate but equal” arguments that preceded the Brown vs Board of Education case in 1954. This turn of events, in my opinion, has cost many same-sex couples a legal avenue to secure the benefits and protections that they so desperately need and deserve.

So what’s left? Another option that has been kicked around in the blogosphere (and maybe elsewhere) is to eliminate the term “marriage” from U.S. law, and make it the exclusive purview of religion. In a sense, this amounts to converting all marriages to civil unions (in a legal sense). Couples could profess their undying love for each other by themselves (#1), get married in a church/temple/mosque (#2) and create a Civil Union in the eyes of the government (#3) to secure the above-mentioned rights. This, in my opinion, is a promising solution, but it does not come without it’s detractors. Those who are married in a civil ceremony, for instance. They consider their relationship a “marriage” today, and probably would not take kindly to being told they are not married, simply because they did not go through a religious ritual recognized as a marriage. There are also people who did go through a religious ceremony, but still see this plan as a lessening of their marriage in the eyes of the government, and therefore oppose it.

At the end of the day, the religious concept of marriage (#2) and the legal concept of marriage (#3) are two separate concepts. However, people view the laws of the land as a reflection of what our society accepts as permissible. Some religious people see a variance between the #3 definition and the #2 definition as a rejection of their religious principles by American society, and therefore oppose it.

This posture, coupled with the negative, “separate but equal” reaction to using a different legal term, creates a semantic paradox. And while it is semantic in nature, it is causing real financial and legal pain for thousands of couples across the country, and so it must be resolved.

I believe the solution lies in stressing the distinction between #2 and #3 above, and working in good faith to make both groups happy. This would involve either agreeing to separate terminology (with appropriate guarantees of equal protection) or agreeing to use the same term to refer to the different concepts, with broad understanding that a change in one does not imply a change to the other.

The current status of this debate – that of political football – erodes the likelihood of either scenario playing itself out and, as such, hurts Americans in very real and immediate ways.

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