In the debate about gay marriage rights, the silent thousand pound gorilla in the room is the religious element. For five hundred years the religious institution of marriage has caused governments serious headaches.
England was once a Catholic country, united in its beliefs and ruled by the Catholic Tudors. Then Henry VIII sought separation from his wife of many years, Catherine of Aragon, who provided him with daughters but no son to take the throne. Henry could not convince the Pope to annul his marriage vows, however. So in 1530 he banished the Papacy and created the Church of England with himself as its head. There remain in Britain today both Anglicans – the official state religion – and Roman Catholics (along with other religions). In parts of Ireland, where Henry VIII was born, the relations between them are barely better today than they were at the inception.
In Israel Jews are married by an Orthodox Rabbi and non-Jews by clerics of other religions. The marriage of a Jew and a non-Jew was unavailable, a problem typically solved by travel to Cyprus for the wedding. On the couple’s return to Israel, the marriage is recognized by the government. Israel now offers civil union without a religious ceremony. But the complexity of this mixed system of government and religion persists.
Civil marriage exists throughout the United States, and no religious element needs to be included in the marriage process. Yet we continue to use the freighted term marriage throughout, starting with the “marriage license.” And words have power.
Let us separate church and state! Instead of arguing about whether the state should offer marriage to gays, let us have states offer only civil union, whether it is available for both hetero and gay couples or not. The sacrament of marriage would come only from its original sources, rabbis, priests, ministers and other clerics, who carry out a religious ceremony. Continuing with the system as it functions today, the celebrant of a religious marriage could be authorized to include the grant of a civil union. A civil union bestowed by a public official acting for the state would not include the term “marriage” at all.
Who should qualify for a civil union, and how constitutional due process or equal protection apply, would remain to be discussed and debated. Government generates many abstract concepts that legislatures and courts interpret: the income tax, immigration and naturalization, “entitlements” and the social “safety net,” and many others. These concepts are challenged, debated and decided without engaging religious fervor.
A debate on the appropriate breadth of civil union without the silent gorilla would invite more meaningful discussion. At once the debate about gay marriage would refocus where it should be: in defining the scope of civil union, what are the state’s interests and what are the participants’ interests. There would be plenty to argue about, but we would have banished the gorilla from the discussion!
Consider as well the ancillary issues that come up today: has a baker the “religious freedom” to deny an order for a wedding cake from a gay couple? Can a reception hall, a public accommodation, refuse on religious grounds to hold the celebration of nuptials of a gay couple? The list is endless as fertile minds find new ways to protect their conception of marriage. These issues could be avoided, or at least simplified, if the state and religion do not mix. And that would benefit all concerned.