Tobi Hill-Meyer

If Not Marriage for All, How About Marriage for None?

Filed By Tobi Hill-Meyer | November 11, 2008 11:00 AM | comments

Filed in: Marriage Equality, The Movement
Tags: marriage equality, New Jersey, polyamory, Prop. 8, relationship recognition

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.


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The religious right have really succeeded in confusing this point. Asking for civil marriage for LGBT people is NOT an infringement on the right of individual churches or religions to decide whether their ministers will perform their own nuptial ceremonies for LGBT people.

The fact is, civil marriages are not (and never were) a religious institution. They are performed by anyone representing civil government, like a mayor or magistrate or judge. They can be performed at city hall, or by justices of peace at their offices...or anywhere non-religious that the couple chooses, as long as some deputized by civil government is officiating.

Civil ceremonies typically contain no religious wording. People who are married in civil ceremonies are just as "married" as people who have a ceremony in church.

So allowing civil marriage for LGBT people in, say, Georgia, doesn't mean that Southern Baptists would be required to perform their own nuptial ceremonies for a gay couple. Southern Baptists would be within their rights to refuse to perform these ceremonies. But a gay couple could go to city hall in Atlanta and get married.

If they chose, that gay couple could also have a nuptial ceremony in some local church that IS gay-friendly, like the Unitarians. But the church ceremony is not what makes the marriage legal. It's the marriage license granted by the civil government, i.e. the state in which the marriage takes place.

Ditto allowing civil same-sex marriage in, say, Massachusetts -- it would not compel the local Catholic Churches to perform nuptial masses for LGBT couples. Ditto civil marriage in Utah -- a gay couple could get married in city hall in Salt Lake City, and the sky wouldn't fall on the Mormon Church.

But the religious right have insisted that that the conservative religions WOULD be compelled to perform these nuptials. This is part of the huge lie that they've told voters.

I'm not claiming that civil marriage for LGBTQ people is violating conservatives' religious rights. It is the concept of civil marriage itself that is a violation of the separation of church and state. The religous roots are clear when you get married, a ceremony is required. Even if a secular ceremony is an allowable substitute, it's still clearly tied to ceremony as opposed to domestic partnerships being more clearly just a legal contract.

There are thousands of different ceremonies, rituals, and religious standards for sanctifying romantic relationships. If the government is going to be legitimating those ceremonies, they must choose which standards to adopt, and that creates, in a minor way, an establishment of religion.

My religion allows for polyamorous marriages, queer marriages, etc, but the government has deemed that only monogamous heterosexual marriages are legitimate. That's clear preferential treatment of one religious ceremony over another.

I'm suggesting that we move our strategy away from the word "marriage". The main problem I see with the status quo is not the lack of the word marriage, but the two separate institutions of civil unions and civil marriage being for different populations. If we can't get the queers into civil marriage, lets get the straight folk into civil unions. If we tie our fates together in one instituion of civil relationship recognition, then there will no longer be a mechanism of preferential treatment and privileges, at least between straights and queers.

Tobi,
Good article. I can't wait to see the "separate but equal" people come out of the woodwork. That term, byt the way, was created for segregation of schools and shouldn't be used by gay people. We should not co-op the Civil Rights Movement, but just learn from it.

"Separate" is a vague term and hard to define when it is tried to be used in the context of same-sex marriage. "Equal" is a mathematical term and has a very finite and exact meaning. There is no gray area with the word "equal."

Please pass the pipe, MonicaHelms. I think I need a hit of whatever it is you are smoking in order to understand whatever the hell it was you just said.

I totally understand that we should not be co-opting the language of the Civil Rights Movement, but I was under the impression that "separate but equal" was also a legal standard, which was of course, rejected during the Civil Rights Movement. Nonetheless, I had thought that "separate and unequal" was a part of the legal argument that the California Supreme Court used in the marriage case, showing that having a separate institution of civil marriage and civil unions was a failed attempt to fit into a rejected standard.

Okay, let me us an analogy, if people are up for it. Asking for marriage to some is like asking for an Oreo cookie. The "separate but equal" people not only want an Oreo cookie, but they insist it comes from the same bag as the straight people are getting their Oreo cookie. (They insist on being considered hetero-normal.)

But, all Oreo cookies look alike, have the same texture, smell the same, and taste the same, no matter which bag they come from. You can't tell the difference because they are "equal." Maybe it's time to stop whining about which bag your Oreo cookie comes from and enjoy the taste. Insisting you want your Oreo cooking from the same bag as straight people have is why we got all of these amendments in the first place. You didn't practice what you preached, "incrementalism."

Oh, and clean those black crumbs from your teeth.

What do gay people do?

Let’s see?!?! They stitch you up when you go to the emergency room, they delivery your babies, they fly airplanes and drive police cars. Gay people teach your children in school. Gay people are elected officials and lawyers. I’m sure there are gay people working in the grocery store you shop at. There are gay clergy, gay dancers, gay artists, gay dog trainers, gay golfers… Is it clear to you that there are gay men or women holding important jobs in your community?!?! So if we can do everything, equally well if not sometimes better (watch the olympics) then WHY on earth can’t we get a marriage license ? This is completely baffling to me after being a gay man in California my whole life. If we respect peoples various religions, then why not respect the religions that will marry gay people. I am an American and I want my religious freedom. What YEAR is this folks??? If you want to belong to a church that fills it’s followers with fear and hate, that is a choice. But what if your church doesn’t promote hate and fear? What if your church says, YOUR GOOD, we love all people?!?! Then what? It takes a lot of reserve and humility to stay calm when you’ve been pushed DOWN so hard. Patiently we wait… but trust me we’re going to get there. Breathe.

PS. One more important FACT: Gay people did not invent DIVORCE. You did that all on your own. You can’t even try to blame divorce on gay people because divorce is between a MAN and a WOMAN . So stop calling us a threat! We don’t want a thing to do with you. We want to be with our own, in LOVE.

Did I ask what gay people do? Does this comment have anything to do with my piece? I'm a little confused here, because you're directing your comment to a homophobic straight person who wants to deny queers the right to marriage and that is not me in a dozen different ways. I would have thought that my track record, or my bio, would at least prevent the regulars from such an assumption, but it seems that if I mention religious freedom everyone assumes that I'm homophobic.

My argument is precisely that progressive churches should have the religious freedom to have their ceremonies recognized -- or better yet, the government should get out of the business of recognizing or rejecting religious ceremonies. Read this again, with my additional clarifications:

When my church performs a [polyamorous queer] marriage and your church performs another [monogamous, straight or queer] 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.

I am in no way asking for the falsely-called-right to not perform marriages my religion deems unworthy, I'm asking for the right that relationships my religion sanctifies -- whether through marriage or other comparable ceremonies -- be afforded the same relationship recognition rights as afforded in civil marriage.

The question is: Do you believe straights will give up "marriage" for "civil unions" any time around this century?

It's not a matter of asking politely. Do you think religious conservatives are going to "allow" queers to get married any time this century? I think the chances are about as likely. Except that I'm not advocates anyone, straight or otherwise, give up marriage, but rather that we give up civil marriage. I've heard from a lot of radical homophobes who actually would prefer that, by the way, because they are so busy trying to defend a word from queer inclusion. They might even get on board with a disolution of civil marriage and getting the government out of the business of "marriage."

But in the end we don't ask for marriage equality, we demand it. And when a court rules that denying marriage equality is a violation of equal protection, then prop 8 passes, the only option left is to create a non-"marriage" institution for all people.

And how do you suggest we address centuries of culture and vocabulary to accommodate this substitute?

What will be the equivalent of "Will you marry me?", "I'm married", "he's my husband", "she's my wife"?

How do you suggest we alter all existing legal codes, military codes, and social codes to exclude marriage? It just seems like a Sisyphean task to me.

We're talking about changing all of those laws anyway, right? All the codes that say it's between a man and a woman. Or what about the sexist assumptions in our old laws that assume a person is male and has a wife? Or what about the old laws that say people of color can't own property? There are still laws on the books in my state that say that last one.

The issue is that a court decision or a new law can make something the law of the land, and all those old codes and laws become out of date. They won't get updated overnight, but they won't be enforceable either.

As for language in personal use? Go ahead and say you're married, I only care about the legal reality of who gets rights. I mean, I know so many queer folks who say that they get married even though they do not have a civil marriage. Getting rid of civil marriage altogether won't stop anyone from saying that they are married, and why should it?

Why should they say they're "married", then? It must mean something.

Well, like I said, people already hold meaning for the word marriage other than being civilly married. Outside of a civil sense, marriage means being in a relationship that is given a sense of longevity, often for life, often after a ceremony, ritual, religious or not. If someone is in a relationship they considered married, they can say that they are married. And I wouldn't stop anyone from doing so just because they have a civil union instead of a civil marriage.

Remove the word marriage from law is the goal.

When campaigning for it, use the language of religion, for marriage has a sanctity, and, as the will of the people has made it so clear, it is a moral and religious institution set forth from God.

Well, then let marriage be from god. Protect it from anyone ever redefining it in law again.

ensure it stays that way in the best way how.

Separate the church from state.

Remove the word marriage from law.

don't give them a choice of a different word. Just remove the word itself from law. position it as a protection from not just the gays but the polygamists and the others.

Let them decide what to call it after its gone.

The enemy's supporters -- the every day folk who voted yes -- will vote yes on it as well, since they have heard this time and time again.

Protect the institution by taking it out of the reach of the courts now and forever.

In short you use their arguments against them, and now they will have to argue something new, something they cannot fight, for you are not taking their "rights" away.

You are not changing the laws themselves into something else.

You are just protecting a word that has deep religious significance from being obliterated by unfeeling courts.

Personally, I'm not attached to the word "marriage" and don't care what we call what we're asking for -- civil marriage or civil unions -- as long we got the complete package of rights, privileges, benefits and perks that everybody else gets.

But here's the problem with the discussion, as I see it. Many people (including LGBT people) continue to talk about civil marriage (or civil whatever-you-want-to-call-it) as having sanctity too.

As long as we do this, we are feeding right into the myth that the religious right has created around it. When they say "marriage," they mean not only the nuptial ceremony in church but also the secular government-based contract between two people, which they also claim as their territory.

As long as this myth persists -- that the civil contract is also somehow sacred -- the religious right are never going to let us have any sort of legal union, no matter what we call it.

It's not the ownership of the word itself they're fighting for. It's the ownership of the very concept, and their perceived right to own our lives along with it.

I am a straight, married woman, and I am not normally political, but I am devastated by the passing of Prop 8, and so ashamed and surprised that the majority of voters here seem to be living in some past century. I love this idea. I have actually been promoting this idea to everyone I know since Prop 8 came up. I would be completely fine with a civil union from the state for anyone, gay, straight, whatever. A marriage could then be between the individual couple and their religious institution if they have one, and if they choose to take that step. If marriage really is "sacred" why should the state have the right to perform one for any couple? I think civil unions for all and marriages for none (at least performed by the state) is a logical and sensible answer. Even my hardcore Republican mother is okay with that idea (and she voted Yes on 8, much to my chagrin, because she didn't like the word "marriage" being "redefined").

I believe in France it's civil marriages for everyone, then if you want to have a ceremony at church, fine, if you don't, also fine. You're still married.

I really don't care what it's called, as long as it has ALL federal and state rights conferred. I'd also be fine with no special rights at all for marriage, but I don't see our puritanical nation going for that anytime soon.