The fight for same-sex marriage has been lambasted by the right as the greatest threat to the institution of marriage since divorce. “It will destroy marriage as we know it,” shout the voices of fear and hate.
Guess what? Those voices are potentially right. But achieving marriage equality for gays, lesbians and bisexual Americans in committed same-sex relationships is not what will destroy marriage as we know it. If LGBTs and our allies lose the battle to strike down unjust laws such as California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the loss would almost certainly end all government involvement in marriage – period.
Ask yourself, would any modern jurist dare to rule that creating a Jim-Crowe-for-gays regime is the best way to resolve the national argument about marriage equality? Can any reasonable person imagine the court setting itself up for the level of outrage that would follow a decision establishing a 21st century separate-but-equal America?
This issue is not as arcane as the campaign finance laws that were at the center of the highly unpopular “Citizens United” decision. The very phrase “separate-but-equal” conjures images and feelings that no one sitting on the bench is willing to have associated with her or his name – not even Antonin Scalia.
Therefore, the only plausible decision besides ruling in favor of equality that the court could hand down would be to remove government from the marriage equation altogether. It wouldn’t be hard to justify the extrication of civil laws from what is fundamentally a religious ceremony – a wedding, and a religion-based institution – the institution of marriage.
In fact, what could very well come out of the Supreme Court is a sweeping replacement of the words “marriage,” “marry” and “married” throughout the legal framework of marriage, with terms such as “civil union,” “legally commit,” and “lawfully partnered.”
The conversion of statutes regulating marriage that would follow such a decision would be massive. It would cover nearly every aspect of society, including business, government and personal activities.
However long the transition away from government-sanctioned marriages toward legally recognized civil unions for straights and LGBTs alike would take, it would be a simple, straightforward process. After all, we’re basically talking about swapping out a handful of words and phrases, while adding same-sex couples as recognized parties entitled to the same provisions, protections and privileges under law that were formerly available only to straight married couples.
If the court dodges its obligation to allow same-sex marriage by dropping the word “marriage” for all committed couples who want government acknowledgment of their relationships, it will drop all couples into a singular civil-unions basket – straight or gay. I guess then, we all would live and love equally, but not separately, ever after.
Of course, the justices could simply do the right thing and abolish discrimination against same-sex couples once and for all. That way, the institution of marriage could continue to flourish. The only difference would be that more couples would be legally married.
You write that it won’t be hard to extricate a religious ceremony (wedding) and tradition (marriage) from civil law.
That’s untrue. There are already 1,138 marriage-related rights and responsibilities codified into civil law at the federal level, and thousands more at the state level.
Rightly or wrongly, marital status has become, over the centuries, embedded into the nation’s laws. No sizable group of voters or lawmakers is moving to change that.
Yes, the Supreme Court probably should do it, but no, they probably won’t. So, as uncomfortable as it will be for them, their easiest choice is to rule in favor of marriage equality for all (which affects only those who don’t yet have equality), as opposed to ruling to redefine marriage (which affects everyone, and terrifies conservatives).
We essentially agree. I may be naive, and though I was once a law reporter, by no means do I have an education in the law. Yet, it seemed to me when I wrote the piece that by simply changing the name of the institution (while keeping all of the associated rights and responsibilities in tact) from marriage to civil unions would be less difficult that going for the “separate-but-equal” choice of keeping the word “marriage” as the name for the institution vis a vis hetero couples, while also mandating states afford equal rights to same-sex couples under the institutional label “civil union.” A constitutional or other lawyer might inform me that even extricating just the word “marriage” would be impossible. Thanks for commenting and for reading. (-Ed.)
Sorry to inform you, but ALL legal marriages in the US are civil marriages, overseen by each state. To have a legal marriage the couple must have a state license to get married, and a state marriage certificate as proof the marriage actually took place. There is no religious involvement required in any of the states to have a legal civil marriage. Extending this right to same sex couples is not difficult. Overcoming prejudice and misinformation can be harder. Same sex couples should be granted the right to the same civil marriage that opposite sex couples enjoy without question. There is no legal reason to deny this right any longer.