COMMENTARY | On Thursday, June 23, President Obama touted his support of gay rights. He stopped short, however, of using the word "marriage," preferring instead the term "civil union."
He may be right to do so. Before we continue, it may be beneficial to take a step back.
Gay rights groups have historically appeared to have two goals. One of these goals appears to be societal acceptance of their "alternative" lifestyle. The other goal seems to be their desire to avail themselves of the same legal protections afforded heterosexual unions.
Many religious groups argue that marriage as a concept should not be extended to gay couples. Among their arguments is their belief that the concept of marriage is unique to heterosexual couples and is thereby beneficial to society.
Arguments on both sides concerning societal acceptance of the gay lifestyle, morality, religious doctrine, etc. will not be explored here. Instead, we want to focus on the legal aspects of the issue. We want to focus on the question of whether all American citizens should be able to expect equal treatment under the law.
Marriage in America has historically been considered to represent a union between a man and a woman. This relationship has long been recognized by society to confer certain legal rights (property ownership protections, special income and estate tax status, and insurance coverage protections to name a few). These legal rights are also extended to those who choose civil union as an alternative to the religious marriage ceremony. Some rights may also be extended to heterosexual couples who choose not to marry, instead holding themselves out to the public as a committed (common law) couple.
Americans are still divided as to whether gays should be entitled to equitable legal treatment as committed couples. Polls concerning the use of the term "marriage" continue to reflect our mixed attitudes, and perhaps our confusion concerning this issue.
The idea of using civil unions as a way to address legal inequities concerning committed gay couples actually finds support in our Constitution -- and without reference to the equal protection clause of the Fourteenth Amendment. As well, this use of civil unions helps protect religious organizations from unwanted government intrusion.
Employing civil unions to bridge the divide between the legal "haves" and "have nots" would seem plausible were it not for the notion of "separate but equal." If American history has taught us anything, it is that this concept is full of potential for unequal treatment of citizens under the guise of equality. The only way to eliminate this potential is to change our perspective regarding the "separate" nature of the concept.
If legal protections are to truly be uniformly offered to all committed couples, legal trappings must be severed from the concept of marriage. Severance recognizes marriage for what it truly is: a religious rite governed by each religion's set of beliefs and protected from government interference. Severance would require that legal rights be conferred by the performance of a civil union ceremony, to be applied equally to all committed couples joined as citizens of the United States. The American ideal of separation of church and state embodied by the First Amendment to the U.S. Constitution would seem to support such a separation of the marital concept's religious and legal aspects.
A complete rewrite of existing laws would not be necessary to accomplish this separation. New law would grandfather existing marriages and require that all future unions between committed couples, regardless of race, creed, or sexual orientation, be subject to civil ceremony in order to be afforded legal status and protections. The religious ceremony would then be recognized in its appropriate spiritual context, extraneous to the legal aspects, to be performed if the couple wishes and in accordance with their particular religion's requirements.
This suggestion is not without limitations; there are no simple solutions to complex issues. Even if the approach described above is chosen, many legal questions concerning certain adoptions and other matters will remain to be resolved. One would hope, however, that such an approach would help to clarify the debate and set the stage for a resolution of the remaining issues.
- civil union.
- separate but equal
- sexual orientation
- Fourteenth Amendment
- equal protection clause
- the First Amendment
- estate tax status
- the U.S. Constitution
- common law