The simplicity and brevity of same-sex marriage bans like prop 8 leave a lot of room to look at alternatives. I can't help but see something like this and think, Okay, I can work with that.
Only marriage between a man and a woman is valid and recognized in California.
--Text of Proposition 8
We've still got the equal protection clause, and all the reasoning that brought the CA Supreme Court to make its original ruling around marriage. We've still got the freedom of religion. This creates an apparent contradiction where a court might have to decide which clause supersedes the others, however, the answer that recognizes all of these clauses seems obvious to me:
If only marriage between a man and a woman is valid and recognized, then to ensure equal protection, the state must cease to provide rights and privileges to an institution that only allows some to participate - in other words, civil unions for all, marriage for none.
It's a rather simple argument. Prop 8 and similar laws passed elsewhere never dictate that the state must provide special rights to those that are married or that those who are married must be given special treatment. This happened briefly in Oregon back in 2004:
But the [county] commissioners... simply made the only choice they could, they say. Had they granted licenses to gays, they would have violated a state statute defining marriage as the union of a man and a woman; had they continued to grant licenses to straight couples but refused to grant them to gays, they say, they would have been violating the State Constitution's protection of equal rights. But if no one got licenses -- at least until the state courts settle the issue, probably within a couple of months -- no one could claim discrimination.
--NY Times arcile from 2004
Marriage is often discussed as a religious institution, so it seems to me that the government should never have been in the business of regulating a religious institution in the first place. When my church performs a marriage and your church performs another marriage, then the government provides a series of rights and privileges for your church's marriages but not for my church's marriages, that seems like it's a violation of both the establishment clause and my free exercise of religion.
If the government recognized marriage as a religious institution (albeit, one between a man and a woman as dictated by these laws) that they have no power over, and shifts to providing only civil unions, then we would achieve marriage equality in a way that even the legalization of same-sex marriage could not.
In addition to everyone's marriages suddenly having the same amount of associated rights (zero), getting rid of the separate and unequal institution ties queer and straight people's rights together, and conservatives would have to choose to either grant rights to queers or deny rights to straights.
If millions of heterosexuals could no longer rely on special rights from marriage and had civil unions as their only option, then I predict every state in the union and the federal government would scramble to quickly pass legislation recognizing civil unions -- something that even California and Massachusetts same-sex marriages do not currently get.
When I've proposed this idea before, I've been accused of having a "I'm taking my ball and going home" mentality. Other activists have complained that they want a state recognized marriage and aren't willing to settle for civil unions or take rights away from others. What they usually fail to recognize, though, is that same-sex marriage fails to provide equal rights for all families as well. There are many families that are headed neither by opposite sex couples nor same sex couples, and will continue to be barred the rights associated with marriage even when same-sex couples can get married.
Living with my two partners Alethia and Ronan, my family doesn't meet the "couple" standard. Personally, I see this approach as the best chance I have for getting the state to recognize my family and all the others like it. Not even marriage equality organizations are willing to fight for my family's right to have our relationships recognized. Virtually no one supports the right of marriage between co-parenting siblings, a single mom and her parents, co-habitating best friends who don't have a sexual relationship together, polyamorous triads, quads, and so on. But in some of these cases the argument for civil unions has had traction.
In the meantime, is there any real reason that our government shouldn't abandon marriage as the religious institution that it is? And with laws like Prop 8 now enshrined in so many state constitutions, to do so seems like the fastest route to achieve marriage equality.