What am I missing?

[hrj]

The whole Prop 8 thing starts again tomorrow at the CA supreme court. So I'll indulge in just one related head-scratcher before returning to silent fuming and angsting. There's this one alleged "compromise position" that I regularly see people suggesting, apparently based on premise that people who oppose same-sex marriage (hereinafter abbreviated as SSM) are more hung-up on the "marriage" part than the "same-sex" part. That position is some variant on "we should cede ownership rights over the word 'marriage' to religious institutions: the state should perform only civil unions and only religious institutions should be able to create 'marriages'."

Setting aside the long prior history of persecution by the anti-SSM folks who now claim that it's only the use of the word 'marriage' that bothers them. Setting aside the curious absence of any history of these same people objecting to pairs of atheists or non-church-goers using the word 'marriage' for their civilly-sanctioned unions ... as long as it's an opposite-sex pair. Setting aside the question of how the government could cede ownership of the definition of a word to the class "religious institutions" without violating the establishment clause. Setting aside all other questions, I have to wonder whether the folks suggesting this "compromise" are stupid or disingenuous.

Has it not occurred to them that there are religious institutions that have no problems with blessing and solemnizing the unions of same-sex couples? And therefore that this "compromise" would not in the least satisfy the anti-SSM people because there would still be large numbers of same-sex couples who would "own" the label "married"?

Has it not occurred to them that this "compromise" would remove ownership of the label "married" from vast numbers of opposite-sex couples in state-sanctioned unions who chose not to involve a religious institution in that union? And that these two effects in combination, rather than decreasing the number of people unhappy with the state of affairs, would vastly increase that number?

Or do they think that somehow the category "religious institutions" to whom they want to cede ownership of the word 'marriage' would automagically be interpretable as "those religious institutions who would never ever actually apply the word marriage to same-sex couples"?

Am I missing something?

Comments

[klwilliams.livejournal.com]

I've decided that the phrase "I just object to them using the word 'marriage'" is code for "I'm really just as bigoted as everyone else, but I'm hoping no one will notice". Like "Some of my best friends are black."

[corbaegirl.livejournal.com]

Nope, you're not. I sometimes bring this up just to make people think about how unfair the current state is. I really think that if anyone who wants to get married can't, then no one should be able to.

[etfb.livejournal.com]

Good points, but are they really talking about retroactive changes? I got married in my in-laws' back yard four and a half years ago, without benefit of clergy; if they changed the definition now, my marriage license would still say marriage and mean civil union. If we'd put it off until the day after any such name-change occurred, I'd quite happily claim to be married and refer to my spanky new piece of paper as a marriage license even if marriage was scribbled out by the registrar and civil union written in in crayon. If anyone protested because I was a bat marrying a human being, which is even worse than a guy marrying another guy, I'd just show them the piece of paper and say "civil union, see? no worries!" and then go back to calling it a marriage when they left the room.

But yeah, it's a stopgap, and Not Good Enough. But the "moderates" who support it are not as inexplicable as all that; just different.

[etfb.livejournal.com]

On second thoughts, I'd forgotten that Prop 8 was all about retroactive changes, so you're right.

But never mind; be optimistic! Remember this:

[blaurentnv.livejournal.com]

I'm not sure that they are merely stupid so much as naive or not capable of thinking several steps ahead. Having all of us who were married in a court house (actually, the county administrative offices, but same idea) suddenly become unmarried would put enough pressure on the system that the optimistic side of me thinks it would fix the problem.

That being said, the court isn't in a position to create that compromise. I believe there are at least two arguments before the court. The first (and soundest) is that it requires a 2/3 majority of the voters to approve the removal of rights from a group of people. The second (and weaker) is that the measure was improperly qualified for the ballot.

The California Supreme Court may contain close to half of the people in the state who have actually read the California Constitution (I have, but I'm not sure I know anyone else who has read the whole thing, and it's been several years since I read the whole thing). I can see them ruling this in at least 4 different ways - (1) prop 8 is the law of the State and allows any same sex marriages after it was passed, (2) prop 8 is the law and retroactively voids any same sex marriages, (3) prop 8 is not the law and (4) to toss the suit, leaving the question unanswered.

While the court deliberates, I think it is important to move forward on a ballot measure that firmly allows marriages between adults.

[scotica.livejournal.com]

Based on what I read of the ruling recognizing same sex marriages, I think there is a fifth possibility. The original ruling in almost so many words said "it doesn't have to be called marriage, but whatever it is called it must be called the same for opposite sex and same sex couples". So I think the court could decide "Okay, Prop. 8 means it can't be called 'marriage' -- civil unions for all!"

However, despite my preference for full separation of church and state and so civil unions for all from the state, due to other important legal ramifications, I'm hoping the court will rule that you can't take fundamental rights away from a minority, whether by simple majority or two-thirds or any other vote, and so Prop 8 is null and void and, well, unconstitutional. (Seriously, if 2/3s had voted to make it illegal for mixed race couples to marry, or for Chinese to marry at all, would that have made it okay? Can California pass an amendment tomorrow making it illegal for Hispanics, or Scientologists, or baseball players, to marry?)

[blaurentnv.livejournal.com]

Given the history of the California Constitution (for example, it made it illegal for Chinese to own property during its history), I believe that the examples you cite would qualify as a possible amendment to the California Constitution. I think it is just as absurd as prop. 8. I like the mixed race example - it wasn't long ago that many states did not allow mixed race marriages; if that hadn't changed, our current president's parents could not have married. Equal rights for any group has (historically) been a slow process - remember the "Equal Rights Amendment" never passed and equal pay for women just got enacted into law in this Congress.

Unfortunately, it seems we need to codify that any adults can marry and that race, religion, gender, felony convictions and/or anything else are not part of the consideration.

[mbumby.livejournal.com]

I agree on the "naive" label -- at least for the followers.

However I think that those naive folks are being purposefully tricked by a small number of people who came up with that mantra exactly for the purpose of tricking those folks.

I'm still burning with anger at the guy (whose name I've forgotten) who started our own campaign, saying "we are only ..." and "we would never ..." and convinced too blasted many folks, and the day after it passed -- carried, I feel (and hope) by many many folks who believed his lies he DID start to try to take away all the benefits provided by companies (like my employer) for SSDPs.

[brooksmoses]

There is, I gather, a lot of fear along the lines of, "If the state says that same-sex marriage is allowed, then my church will be forced to recognize it as a legitimate marriage." And enough misinformation floating around to make that a reasonable concern for someone who hasn't gotten an accurate view of it. (And perhaps a reasonable concern anyway; would it be allowable today for a church to not recognize an interracial marriage or to refuse to perform one?)

And a lot of the opposition is also, "Then I will be forced to recognize it as a legitimate marriage." If marriage is decided by churches, then there's nothing requiring me to recognize some other church's marriages in any sense of the word. I can easily dismiss them as, "well, their so-called church says they're married, but calling a pig a bird doesn't make it fly."

[scotica.livejournal.com]

People may fear this, but their fears are baseless. Churches right now routinely do not recognize any number of marriages --including marriages performed by other religions/denominations-- and this will continue to be true whether or not the state does the right thing with regard to SSM.

And, yes, I'm quite confident that it is allowable for a church not to recognize interracial marriage and/or refuse to perform one. In fact, I believe one of those right wing "Christian" universities in the South, and presumably its associated church, did exactly that not that long ago (and may, for all I know, still do so)

[scotica.livejournal.com]

As one of those people who would, if I could have my druthers, like the government to get out of the marriage business entirely, the idea is not that "marriage" would be ceded to religious institutions, but rather that it would not be regulated by the state, which would instead regulate "civil unions" (for _all_, OS or SS) -- and that there would be total separation of church and state with regard to civil unions. That is, if you wanted to be united for legal purposes, you would have to go to the state and have a (non-religious) civil union ceremony performed by a civil servant -- no church service would count and no clergy-person could preside.

Now, nothing in this would prevent one from having a non-religious marriage ceremony (in addition to the civil union ceremony), or same sex (and/or atheist, and/or anything else) couples from calling themselves married, and being socially recognized as married (indeed, whether or not they were also civilly united). The state doesn't have to be involved for there to be non-religious marriage.

But I want the churches to get out of the legal union business, and the only way I can see this happening is to get the state out of the "marriage" business.

In my case, this is not a compromise position, but rather my ideal. (Or nearly so -- I suppose the ultimate would be to have all that separation of church and state but have both the legal and non-legal ceremonies using the term "marriage", as is the case in places like Germany, but I can't even hold out the slimmest hope for that, given our current culture.) The next best thing would be for California to have equal legal marriage rights for both opposite sex and same sex couples, with churches still involved in performing the state function.

Now, all that being said, I am sure there are many who, when thinking of having civil unions for all, are imagining that then only religious institutions would do marriages. In fact, their naive assumption is one of the things that actually leads me to think there is slightly more than a snowballs chance in hell that we could actually persuade people to approve a civil unions for all law (or amendment, or whatever). Of course, certain churches would scream nearly as loudly about civil unions for all as they do now about same sex marriage --they _want_ churches to be involved in government-- which is why I am not holding my breath!

[madfilkentist]

I agree with pretty much everything scotica said. A civil union is simply a contractual relationship, and any two or more (yes, I said "or more") consenting adults should be able to enter into it. Any private organization, religious or not, can add its own stamp of approval and call it a marriage. There's no Establishment Clause issue.

For most of history, up to a few centuries ago, governments had very little to do with marriage. This wasn't because kings were afraid of the word "marriage," but because the notion of income tax benefits, special insurance considerations, etc., for married couples hadn't come up. Today, those considerations are the real reason for wanting to be married rather than just having a civil union. Get the government out of that business, and the issue no longer matters.

And frankly, hrj, this is the first I've heard anyone come up with the idea that getting the government out of the marriage business is a "compromise" position and that it's really a sneaky way to oppose same-sex marriage. Libertarians have, for the most part, supported same-sex marriage, although that, not civil unions, is what we consider the "compromise" position. Are we doing that just to smuggle in our secret opposition to same-sex marriage by co-opting the gays? That would be a bizarre and silly strategy.

[hrj.livejournal.com]

For most of history, up to a few centuries ago, governments had very little to do with marriage. This wasn't because kings were afraid of the word "marriage," but because the notion of income tax benefits, special insurance considerations, etc., for married couples hadn't come up.

As a historian, I will beg to differ with this characterization. Systems of law have nearly universally priviledged marriage relationships in some way -- whether or not those marriage relationships were religiously sanctioned. Medieval Welsh law is actually a great example of this because it explicitly dealt with a larger class of marriage relationships than were sanctioned by the Christian church at that time. (The law code identified IIRC nine different types of marriage, with about half of them being ones that might also have been solemnized by a priest.) Under this law code, married couples enjoyed a wide variety of legal rights and responsibilities with regard to each other that were clearly distinct from those with regard to other socially-related individuals, covering topics such as support, inheritance, appropriate inter-personal behavior, and so forth.

[scotica.livejournal.com]

Like hrj, I also differ. Marriage has long been of interest to civil government, and in fact in the Christian West marriage wasn't of much interest to the Church until well into the medieval era, and only in the last part of the Middle Ages did the Church really become the nearly universal arbiter of what was and what was not legal marriage (and even then civil regulation of the consequences --such as inheritence, etc.-- still varied from kingdom to kingdom).

[hrj.livejournal.com]

The problem is that currently "marriage" is the ordinary, everyday, unmarked label for state-sanctioned legal unions, including those for which no religious institution was involved. I find it highly unlikely that that usage of the word is going to change. Therefore any suggestion to "get the state out of the marriage business" is talking about "taking marriage away" from some set of people that currently have it. Either that or it's meaningless.

[scotica.livejournal.com]

A recent post in cvirtue's LJ reminded me I wanted to reply to this. (Yes, I am still catching up with keeping up...)

I agree that "marriage" is the ordinary, everyday, unmarked label for state-sanctioned legal unions, and I agree that it is highly unlikely that that usage of the word is going to change.

But I don't think getting the state out of the "marriage" business is going to take marriage away from anyone who currently has it, precisely because that usage --calling legally united people "married"-- is likely to remain unchanged.

So, John & Mary Catholic have a civil union ceremony at city hall, then have a marriage ceremony in church. Robert & David Episcopal have a civil union ceremony at city hall, then have a marriage ceremony in church. Elizabeth & Jennifer Atheist have a civil union ceremony at city hall, then invite all their friends to a big party to watch them exchange marriage promises in their back garden. Mark & Susan Atheist have a civil union ceremony at city hall, and that's it.

All four couples would have the same legal rights, responsibilities, and protections. And, for all four couples, I would expect their friends, family, and most everyone else to consider and refer to them as "married", with few exceptions -- and those exceptions would be people who would not consider or call them "married" even if the state-sanctioned legal union was called "marriage" (e.g., certain Catholics would not recognize as marriage either of the same sex or atheist unions even if the legal term was "marriage", just as today they don't recognize as valid marriages the legal unions of divorced persons, atheists, etc.).

But there would no longer be people performing state-sanctioned legal functions by virtue of being religiously ordained, etc, nor people changing their civil legal status by means of a religious ceremony. I don't think that is meaningless.

And, as mentioned in another comment, my highest ideal would simply to have this separation of church and state while retaining the term "marriage" for the state-sanctioned legal union --as in Germany and some other countries-- but I think it more likely (albeit still not very likely) to be achieved by changing the term used to "civil union".

[j-i-m-r.livejournal.com]

Nope, nail, head, you got it.

I still think it should be *marriage* for all and *religious unions* for those with a narrower definiton.

[naadhira.livejournal.com]

Oh, I *like* that. It would allow me to clearly state that I'm still "religiously united" with my first husband (as far as the Catholic Church is concerned), but I'm *married* to lokis_child.

I'm watching from up here in Oregon with the hopes that brains will prevail.

[cryptocosm.livejournal.com]

'Marriage' as it now exists in this country is the best proof there is of the need for a strong First Amendment - because the Gordian knot of entanglement between church and state over the matter utterly fails to provide any separation, and the arguments over the definition of 'marriage' are a direct and necessary result of that lack of separation. Small wonder that some would look to the Alexandrian 'solution'.

I suspect the hope is that those who entered into civil marriages rather than having religious ceremonies are only concerned with the legal implications, and would be happy with any name so long as the legal status remained unchanged. The religious ceremonies would become an entirely separate matter; individual churches would be free to marry or not marry whoever they chose. And yes, there's probably an element of vindictiveness for some in the realization that some individual churches would choose to sanction same-sex marriages, as others might choose to sanction polyamorous ones, etc., with all becoming just as 'legal' as any.

For this to have any hope of working, it would need to be total and universal - not just within California, but at least nationwide. Laws would need to be purged ruthlessly of any mention of 'marriage' to ensure that the religious institution neither be regulated nor given any civil consequence. Legal precedent would need to be picked over to determine what could be modified and what merely scrapped. Provision would need to be made for determining the future status of existing relationships - with the potential for contentious litigation if couples disagreed about what they wanted their status to become. The mess would be hideous - and I'm sure the churches now claiming to be 'defending' marriage would be squawking throughout about how their rights were being infringed.

Somehow, I don't see that happening. And I think that a half-assed attempt at it would only make things worse, especially if it were only California doing it.

On the other hand - either the State is going to sever any and all connection between religious marriage and civil marriage, or the State is going to be in the position of picking and choosing which religious marriages will be recognized and given legal benefits, and which will be regulated and/or given legal detriment. There is no middle ground. To pretend otherwise is to reduce 'separation of church and state' to empty words devoid of meaning.

Sigh. It would make things so much easier if the churches had the courage of their convictions - "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's" seems about as powerful an instruction for the separation of church and state as anything the drafters of the First Amendment ever came up with. A religion that needs the state to enforce its principles is a religion that has failed.

[aastg.livejournal.com]

No, you haven't missed anything (but you knew that).

There are a large number of people in this state who are completely and viscerally unable to accept the idea of two people of the same sex being married, and they refuse to be forced, as they see it, to accept it by the State Supreme Court. IMO, that's all that it is, and I don't say that to trivialize the problem, only to point out how huge it really is. I just smacked head-on into this issue recently, and that's what I came away with.

I still expect that this change will come, whatever the fingers-in-ears-la-la-la Prop 8 proponents do or say.