I was reading a
blog post praising the passage of proposition 8 (which, had I been able to vote in California, I would have opposed), which reminded me that I wanted to make a short comment about gay marriage - or more accurately about the state's position in marriage.
(UPDATED: You might want to take to look at this
"bloggingheads.tv" discussion on the issue)
The issue of whether the state should allow two adults of the same sex to marry has been a social hot topic for several years. Various state courts have taken up the question as to whether their individual constitutions require such a provision.
New Jersey's Supreme Court decision opted for a middle ground requiring that all of the benefits and obligations inherent in civil marriage must be extended to gay couples, but that the state need not call this "marriage." Instead, the state could call it a "civil union." When I asked then Attorney General Stuart Rabner what the legal difference was between "marriage" and "civil union" as a result of the court ruling, he replied "None." It is only a difference in name. Significantly, when Rabner issued his ruling that
public officials who performed weddings could not refuse to perform gay weddings (all or nothing was the essential ruling), he exempted religious officials from that edict, thereby signaling the difference between state-sponsored marriages and those performed by a religious institution.
That short conversation and subsequent thinking led me to the conclusion that the state should remove itself entirely from the business of regulating "marriage." The state's business should be in creating the ability to enter into legal domestic arrangements that would, for the purpose of the state, be called "civil unions." Marriage would become the sole prerogative of each church, which could bestow the sanctification of marriage as the church saw fit. Churches (used inclusively to refer to all religious institutions) would be able to determine without any state interference whether to sanctify a particular union or not. The state would determine entirely independently of any church whether a domestic arrangement rose to the level of a civil union. The two would likely be similar in most cases, but they would not longer be tied together.
What would be the result of such a change? It would change the nature of the debate. Once the religious issue is separated from the civil issue, we can focus on other questions. Is promoting civil union in the interest of the state? I believe that it is. Our community benefits by stable family units that have predictable and defined rights and responsibilities to each other and the community. If that is the case, then promoting stable gay families is no less beneficial than promoting stable straight families. There are those who would argue that a gay couple is less capable of raising children than straight couples. While the welfare of children is certainly a central concern of the state,
all evidence suggests that gay families are just as stable as heterosexual families. Other
evidence suggests that having gay friends leads the rest of us to be more tolerant and open of all people, clearly a goal that the state should promote.
Most importantly, however, is the very idea of fairness. As state after state has done away with discriminatory practices against individuals who are gay, so should it do away with discrimination in this important area. Recognizing that the religious sphere, which can, sometimes of necessity, be discriminatory, should be protected from the interests of the state (the very basis of the separation of church and state), the state should relinquish its claim to "marry" people and instead focus on civil unions that promote the interests of the state.