The separation of marriage and civil union

February 9th, 2010

In the US, and to a lesser extent in some other countries, the debate about ‘Gay Marriage’ is slow boil topic, currently mostly eclipsed by the debates over health care and the economy but occasionally still erupting into a volcano of mud slinging and hate mongering. I would like to propose a solution.

The solution is based on the observation that marriage is a religious institution that, for historical reasons, has been co-opted into the fabric of secular law. This is, of course, a holdover from the days when there was little or no distinction between the religion and secular laws —and this can be applied equally to almost all societies and religions, the idea of marriage, the way we think of it today, seems to exist in all societies. In most of the “west” what we think of as marriage is a direct result of the Abrahamic cultures ideas codified into religious belief and later into law.

This is of a particular problem in America. Partially due to the strange fact that, alone among the “developed world”, America is becoming more religious. The acceptance of homosexuals in Western Europe seems to be more than in the US. Perhaps due to it’s seemingly more and increasingly secular nature. (I need a small army of sociologists and statisticians to verify all of my claims and ‘facts’ of course… But it’s my website so IMHO is gospel.)

The point of all this is to establish that what we call marriage, is a religious institution that, for historical reasons, has had legal status attached to it. Once we acknowledge this then we should realize that we have an issue in the US: because marriage is a religious institution, and the laws about it stem from a particular religious background, they are a violation of the constitutional principle of separation of Church and State.

To fix this I would abolish all reference to “marriage” in federal, state and local law and replace it with “Civil Union” or some new term with less baggage. A Civil Union would be defined as a legal status formed by mutual agreement between two adults to the exclusion of all other adults granting certain entitlements. The nature of these entitlements would basically be the same legal entitlements that exist for “married couples” today—things related to taxes, inheritance, health care, etc. Marriage would then revert to the exclusive authority of the religious institutions to grant and deny as they see fit—but without legal consequences.

This then would allow two men or two women to enter enter a civil union of equal standing to the civil union of any man and woman. If any couple, man and woman or man and man or women and women wanted to be ‘married’ it would be an issue for their religious community and not an issue of legality. (Interestingly not only would this allow a guy couple to have a civil union equal in all legal ways to the civil union or a hetero couple but it would allow the FLDS to practice polygamy of marriage, but they would only be entitled to a single civil union. Could an older polygamist marry a 12 year old girl? That would be up to the religious authorities, but sex with minors laws would still apply and civil unions should have a minimum age requirements, like 18 or something.)

So, that’s the idea. Marriage is a religious institution so it should be removed from the legal world in the US as it violates the principle of separation of Church and State. Replace the legal side of it with a civil union that does not discriminate based on sex. Plenty here for the lawyer to thrash out and argue over, but I think it’s a good solution to the issue.

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