Tuesday, March 15, 2005

Render Unto Caesar ... 

Thanks to the ruling of a San Francisco Superior Court judge, this topic is once again in the headlines. I haven't blogged on the issue of same-sex marriage until now because I wanted to let the issue ferment in my own mind for a while. Now I finally think I can make a semi-reasoned post on the issue.

It seems to me that there are two societal aspects to the institution of marriage: the legal and the communal. The legal aspect is the one that the state has an interest in because the state doesn't want its courts clogged with litigation over, for example, who has rights in a deceased person's estate, or who has obligations of support, or who has family status for purposes of access to hospital patients. The state is interested in such things as an orderly property rights system and clear guidelines about obligations to support a cohabiting partner, but the state doesn't (or at least shouldn't) have any interest in whether a particular relationship has or has not been solemnified, whether in a religious setting or .

The communal aspect of marriage, on the other hand, has to do with how the relationship between cohabiting partners is regarded and respected by the community of persons to which the partners belong. This aspect is where the religious traditions of marriage reside, and it is of minimal, if any, concern to the state.

Taking a cue from the Gospel of Matthew, Chapter 22, I have concluded that on the issue of marriage, whether conventional or same-sex, society should “render unto Caesar that which is Caesar's.” That is, the notion of legal rights and obligations should be separated from the notion of “marriage” as a status in the community.

As I envision it, the state would issue a domestic partnership license to any two people who meet the state's requirements as to competency and whatever other criteria it may reasonably apply. Couples who have received such a license would have the status of “domestic partners,” which would confer on the partners all the legal rights, privileges and obligations that are currently associated with marriage. Having received such a certificate, those couples who wished to be “married” could either participate in a civil ceremony as a public expression of their domestic partnership or could go to a religious leader for a marriage ceremony that would fulfill whatever requirements that particular religion establishes to solemnify the couple's joining in matrimony. The status of domestic partnership would arise immediately upon issuance of the license and would not be affected in any way by any later marriage ceremony, or lack of one. In the case of same-sex marriages, if the domestic partners belong to or can find a religious group that would sanction such relationships, more power to them, but such sanction would have no effect on the legal rights and obligations of the domestic partners.

Dissolution of the domestic partnership would be accomplished in much the same way as a marriage is dissolved today. On the communal side, divorce or dissolution or annulment would be accomplished pursuant to the relevant religious laws, but would have no effect one way or the other on the legal rights of the parties – only the dissolution of domestic partnership could affect those rights and obligations.

I've read several opinions (sorry, no links) over many months to the effect that allowing same-sex “marriage” would be to step heavily onto a slippery slope that would ultimately result in multi-party marriage, marriage between close kin and the like. This is not necessarily so. I can see many practical reasons why the state would frown on multi-party domestic partnerships, because such arrangements would be much more complicated than simple business partnerships. For example, in multi-party domestic partnership would each partner be considered an equal parent to all of the children produced by the partnership, or would the biological parent(s) have greater rights and responsibilities with respect to their own children, than to the other children of the partnership? How would dissolutions work in a multi-party domestic partnership? If one member wanted out, would that member have rights or responsibilities with respect to alimony and child support for the other members of the partnership and their children? How would community property issues be resolved? There is already a large and complex body of law on these issues as they relate to traditional marriage. How much more litigation would be required to settle such issues in multi-party domestic partnerships?

The “Rendering to Caesar” approach has a number of advantages over trying to adapt the traditional institution of marriage to accommodate same-sex couples. One is that all couples are treated exactly the same by the state. Whether a traditional or same-sex couple, the legal rights and obligations of the parties to a domestic partnership are exactly the same, and the formation of the domestic partnership is achieved by exactly the same process. Another advantage is that this approach achieves total separation of church and state with respect to couples who wish to live together– Baptist, Catholic, Jewish, Muslim, Wiccan – they are all treated the same by the state. There is no obligation imposed by the state on any religious group to recognize any marriage and the legal rights and obligations of the domestic partners are unaffected by the presence or absence of a sanctioning religious group or ceremony, or civil ceremony. Finally, I think this approach avoids the slippery slope argument with respect to multi-party domestic partnerships because there are clear differences in the practical issues generated by multi-party domestic partnerships as opposed to two-party domestic partnerships, which give rise to legitimate state interests in prohibiting multi-party domestic partnerships.

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