Why Not Equal Civil Unions for EVERYONE—With Churches Deciding Which Ones to Bless?

As the sun rose on California this morning, it was clear from the Los Angeles Times’ county-by-county map of election results that with 95% of the vote counted, Proposition 8—the state constitution revision which “Eliminates Right of Same-Sex Couples to Marry”—had passed statewide by a margin of 52% out of 10 million votes. Click here for the updated map.

‘No’ votes prevailed in 16 of California’s 58 counties: 12 along the Pacific Coast from Salinas to Eureka, Napa and Yolo Counties just inland from Sonoma, and Alpine and Mono counties along the southern Nevada border.

But by that hour, 100% of the vote had been counted in 15 of those counties, and there were not enough uncounted in the sixteenth (Monterey County) to overcome the statewide ‘Yes.’ Nor were there enough votes left in Riverside County, which includes gay-friendly Palm Springs, to overcome the 64% yes-vote margin there. Los Angeles County may have been the closest in the state: with 100% of the votes counted, Proposition 8 won there by less than 1%: yes 1,317,125 (50.4%); no 1,296,319 (49.6%).

Even if Proposition 8 had failed, California would be one of only three states that permit gay marriage (with Massachusetts and Connecticut). Such marriages would remain unrecognized at the federal level, and married gay couples still would not enjoy any of the 1,000-plus legal rights that federal law confers on U.S. married couples.

Moreover, gay people married in California would continue to face opposition from well-meaning people like Stafford Betty, a professor of religious studies at California State University in Bakersfield. Writing in the October 31 edition of the National Catholic Reporter, Betty said his friends include committed gay couples whom he loves and admires, “But we are different in one important respect. When a man and a woman marry, they can have children in the way nature planned. And most do. When gays or lesbians unite, they cannot. They can adopt, and lesbians can get pregnant with the help of a sperm bank. But most do not choose to bring up children. For these reasons I would say that a heterosexual union is one kind of thing, and a homosexual union is another. Therefore, I would prefer different names for them.”

One can quibble with Betty’s logic. But the fact remains that voters in most states find it persuasive, and they aren’t likely to be persuaded otherwise in the foreseeable future.

What should that tell us? It says that trying to get gay unions included in the legal definition of marriage is barking up the wrong tree. Even when the effort moves forward in a specific state, conservatives usually succeed in reversing it and in blocking any progress toward equal federal rights. Trying to make civil marriage the goal, as an expansion of civil-union rights, seems doomed to fail. But with a little imagination, the tables can be turned.

What would be wrong with pushing, instead, for civil unions with equal rights as the legal norm for everyone? Marriage ceremonies performed by clergy could still be available for those who value them. But, for heterosexuals or homosexuals, the durable coupling registered with the state would be a civil union. Church weddings would be a religious add-on to civil unions, conferring whatever significance the church desires, but no superiority in the eyes of the law.

This reform would get the state out of the marriage business altogether. The state’s role would be to acknowledge publicly that a couple has agreed to live together, mingling their income, their assets, their liabilities and their lives. All couples so recognized would have identical rights under state and federal law. Whether a given civil union would also be regarded as matrimonial would be between the couple and their religious community of choice.

Historically, the church got into the civil marriage business to assist Constantine with the civil administration of his empire. The main service the church provided was record keeping. But eventually the churches got into the position of defining what marriage is from a legal standpoint. That may have had value in an age when most nations had an established religion. But once separation of church and state was formalized by the U.S. Constitution, it became impossible for any one religion’s understanding of marriage to remain the legal norm.

That, of course, has not stopped the religious right from trying. But the way to stop them from denying gay couples equal rights is not to fight for inclusion in the right's particular definition of legal marriage. Rather, it is time to challenge their right to define legal marriage at all.

The churches certainly have the right to decide what constitutes matrimony or religious marriage for their members. What they do not have the right to do is define legal marriage in a way that rewards some couples and punishes others.

Let’s work to make civil unions the form of domestic partnership which the state guarantees for all durable couples who seek public recognition. Let the churches fight within themselves and among themselves about God’s requirements for marriage. But let’s remind them that, under the First Amendment, they may not dictate such requirements to the nation or it states.