June 29, 2003
Gay Unions revisited

In the wake of the Supreme Court decision in Lawrence vs. Texas, which struck down the sodomy laws of Texas and twelve other states, there has been an increased interest in the concept of gay marriage or gay civil unions.

A gay man ran across my first post on this subject (from March 2002) and we exchanged a few messages. I thought I'd share them, because they are interesting, and allowed me to expand and extend my thoughts on the issue. You may want to refer to the original post if you are unfamiliar with my position on the subject (short version: I'm in favor).

there only two major problems with what you propose:
1) It defies the Constitutional segregation between church and state. What you propose would marry the two in legal terms, which would never hold up to Constitutional challenge.
2) Equal is equal. Period. I have the same beating heart & the same breathing lungs as ANYONE else in this nation. Same goes for the taxes I pay and the number of votes I'm allowed to cast on election day. Therefore, I expect nothing less than that which everyone else enjoys.
Equal is equal. Period.

I replied:

I don't understand your first point. My idea clearly separates the two terms, and provides a way of expressing the relationship without using the term "marriage". It is akin to domestic partnership ordinances nationwide that allow partners visitation rights, access to health care, and other benefits afforded to spouses of heterosexuals. That part is not unconstitutional.

The second point is a bit more problematic. Under Brown vs Board of Education, "separate but equal" is inherently unequal, which would serve to invalidate gay-only unions. By expanding it to cover all non-clerical unions, gay or straight, it might pass muster in that fashion. Progressive faiths, such as the Unitarians, would have no problem with performing gay unions, but there is no way one can force conservative religions such as the Mormons, Catholics, Southern Baptists or Pentecostals to marry gays. Such coercion would violate the separation of church and state, and would be therefore be unconstitutional. That is why I proposed the division in the terms; they have the same legal weight, without the baggage. I think some of those who oppose "gay marriage" would be amenable to "civil unions".

His response:

I guess my questioning to you (in point #1) had to do with your calling out & requiring religious leadership as a governmental definition of "marriage."
The point I *think* you were trying to make is that clergy/religious institutions should not be forced to perform same-sex unions ... is that it, more or less?
My problem (or rather, the problem I see in terms of the Constitution) is when you began to get into government-defined "marriages" which may or may not involve clergy.
Not sure I'm making sense here, but I think the point (that I THINK you're making) is moot, as the government does not currently require that ANY religious institution perform marriages. It is silent on the matter, therefore, I can imagine no legal grounds where you and I, say, could take our local Baptist church to court for refusing to perform our marriage ceremony.
I believe the government recognizes marriage in legal terms only - regardless if the agreement happens within a church, before a judge, or in Vegas. I guess I just can't imagine a circumstance where legalized same-sex marriages would ever *force* a church or religious leader to acknowledge the same recognition.

He quickly followed up:

After 30 seconds' reflection, I guess it is imaginable for someone to try and make such a challenge as described above, on the "grounds" that HEY- My church provides for STRAIGHT marriages, my boyfriend and I want equal rights!
Such an action could certainly be initiated (and probably would be), and it might even get somewhere within the low-level court system of an ultra-liberal state. But it likely wouldn't get very far, as it is as unconstitutional as Texans' attempt to outlaw gay sex. The courts have been very clear on the rights of private institutions (e.g. the Boy Scouts) to practice "exclusionary behavior," and it is even MORE clear cut when it comes to the rights of churches to practice their religion as they damn well please.

I replied:

You understood me correctly. You even picked up my concern that somebody would try to force the issue, and that like the Boy Scouts case, it would require a Supreme Court decision to finalize it. I am not particularly religious, but I really dislike the anti-proselytism of some atheists; their hatred of religion is not unlike Fred Phelps' hatred of gays, and just as distasteful.

The reason I suggest a distinction is because it is only because of government policy that marriages performed by clergy are recognized; after all, a Justice of the Peace is a governmental employee, while a priest, minister, or rabbi ordinarily is not. That is the easiest way to justify a distinction between the two flavors—marriage is performed by a religious leader of some sort, while a civil union is secular in nature.

For those gays who want a religious ceremony (assuming that their religion permits it), they can have a church ceremony of their own after doing the civil union thing. My best friend and his first wife went to a JotP (so that she did not have to deploy to Iraq in 1991; her squadron was sending only single people over there), and then they did the church wedding a few months later, which satisfied both sets of parents.

(Edited 30 June 2003 for style. No major changes to content.)

posted on June 29, 2003 11:47 PM


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