Thursday, October 05, 2006

Render Unto Caesar .... 

This post reproduces a comment I left at Ann Althouse's blog in response to her post, "What is the rational basis for banning same-sex marriage?". I thought I had posted something very much like this some months ago, but I could not find it.

"Render unto Caesar ...."

As I see it there are two components to the idea of marriage as most of us think of it. One component has to do with legal effects and the other has to do with status in the community. The State clearly has an interest in the legal issues, such as rights of inheritance, alimony, child support, property rights and the like, but in my view it doesn't have much interest in the community component, i.e., how the couple is regarded within the circle of friends, neighbors, co-religionists and the like.

I therefore favor the idea that the State should get out of the business of "marriage" and regulate only that component of the relationship that it has an interest in. Under this theory, the State would issue certificates of domestic partnership (by whatever name, but not "marriage licenses") to couples who wish to formalize their relationship, irrespective of gender or sexual orientation. The mere issuance of the certificate would confer upon the couple all the legal rights and responsibilities that we currently associate with "marriage", irrespective of whether the couple participated in a ceremony. The issuance of such a certificate would be a bright-line test: with it, the couple's rights and responsibilities to each other would be defined, and in its absence the couple would have no more rights and responsibilities to each other than roommates. (Obviously, their rights and responsibilities regarding children would have to be regulated in any event, just as they are now when a couple is not "married.")

"Marriage" would be totally a matter for the couple's community. If a couple wanted some kind of ceremony solemnizing their relationship, then they could go to a church or whatever to have that ceremony, and within that community they could be certified as being "married." If a couple wanted a secular ceremony, I suppose a local governmental body could provide the service, but it would have no legal effect. In essence it would have no more legal significance than a birthday party, but like a birthday party, it could be an important event for those attending.

I suspect that most mainstream religions would not agree to perform a "marriage" in the absence of a certificate of domestic partnership, but whether they did or not, a "marriage" would have no legal effect under this theory in the absence of such a certificate.

Full disclosure: I am a pracicing Catholic and I believe that "marriage" is a relationship between one man and one woman, but I also recognize that many gays and lesbians wish to enter into formalized relationships that establish both legal rights and responsibilities and status as a committed couple within their communities. If they are hung up on the word, "marriage," then they should be free to find a clergyman or official who is willing to "marry" them, but I don't think that their sexual orientation ought to have anything to do with their legal rights and obligations.

I pretty much agree with your sentiment, though I doubt this will happen in my lifetime.
If this were to happen, I don't think the state should even pretend to have anything to do with marriage.
Let the Glee club do it, or Greenpeace or the DLC... (these were just random picks, no implied link, just whomever a person might like)
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