The simplicity and brevity of same-sex marriage bans like prop 8 leave a lot of room to look at alternatives. I can’t help but see something like this and think, Okay, I can work with that.
Only marriage between a man and a woman is valid and recognized in California.
–Text of Proposition 8
We’ve still got the equal protection clause, and all the reasoning that brought the CA Supreme Court to make its original ruling around marriage. We’ve still got the freedom of religion. This creates an apparent contradiction where a court might have to decide which clause supersedes the others, however, the answer that recognizes all of these clauses seems obvious to me:
If only marriage between a man and a woman is valid and recognized, then to ensure equal protection, the state must cease to provide rights and privileges to an institution that only allows some to participate – in other words, civil unions for all, marriage for none.
It’s a rather simple argument. Prop 8 and similar laws passed elsewhere never dictate that the state must provide special rights to those that are married or that those who are married must be given special treatment. This happened briefly in Oregon back in 2004:
But the [county] commissioners… simply made the only choice they could, they say. Had they granted licenses to gays, they would have violated a state statute defining marriage as the union of a man and a woman; had they continued to grant licenses to straight couples but refused to grant them to gays, they say, they would have been violating the State Constitution’s protection of equal rights. But if no one got licenses — at least until the state courts settle the issue, probably within a couple of months — no one could claim discrimination.
–NY Times arcile from 2004
Marriage is often discussed as a religious institution, so it seems to me that the government should never have been in the business of regulating a religious institution in the first place. When my church performs a marriage and your church performs another marriage, then the government provides a series of rights and privileges for your church’s marriages but not for my church’s marriages, that seems like it’s a violation of both the establishment clause and my free exercise of religion.
If the government recognized marriage as a religious institution (albeit, one between a man and a woman as dictated by these laws) that they have no power over, and shifts to providing only civil unions, then we would achieve marriage equality in a way that even the legalization of same-sex marriage could not.
In addition to everyone’s marriages suddenly having the same amount of associated rights (zero), getting rid of the separate and unequal institution ties queer and straight people’s rights together, and conservatives would have to choose to either grant rights to queers or deny rights to straights.
If millions of heterosexuals could no longer rely on special rights from marriage and had civil unions as their only option, then I predict every state in the union and the federal government would scramble to quickly pass legislation recognizing civil unions — something that even California and Massachusetts same-sex marriages do not currently get.
When I’ve proposed this idea before, I’ve been accused of having a “I’m taking my ball and going home” mentality. Other activists have complained that they want a state recognized marriage and aren’t willing to settle for civil unions or take rights away from others. What they usually fail to recognize, though, is that same-sex marriage fails to provide equal rights for all families as well. There are many families that are headed neither by opposite sex couples nor same sex couples, and will continue to be barred the rights associated with marriage even when same-sex couples can get married.
Living with my two partners Alethia and Ronan, my family doesn’t meet the “couple” standard. Personally, I see this approach as the best chance I have for getting the state to recognize my family and all the others like it. Not even marriage equality organizations are willing to fight for my family’s right to have our relationships recognized. Virtually no one supports the right of marriage between co-parenting siblings, a single mom and her parents, co-habitating best friends who don’t have a sexual relationship together, polyamorous triads, quads, and so on. But in some of these cases the argument for civil unions has had traction.
In the meantime, is there any real reason that our government shouldn’t abandon marriage as the religious institution that it is? And with laws like Prop 8 now enshrined in so many state constitutions, to do so seems like the fastest route to achieve marriage equality.
Thanks for this. I think it’s really important for more queer people to question the seemingly singular focus on achieving same-sex marriage, which is such a limited goal. Are you familiar with Stephanie Coontz? She’s a historian of family structures, and she made the argument (I think in her book The Way We Never Were but I’m not completely sure) that marriage is a failing institution, that we should instead organize similar legal institutions/agreements around people committing to raise a child together. That’s still not completely inclusive (lots of families don’t have or want to have children) but I think it’s a step in the right direction.
[...] Tobi posted this after I wrote this but it’s relevantL If Not Marriage for All How About Marriage for None? Possibly related posts: (automatically generated)1st ever Twin Cities Trans March a Success Marred [...]
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Fuck yes. I’ve thought pretty much the same thing for a while now.
My partner and I are in complete agreement with you on this one.
My husband and I have also thought about this, independantly of one onother, and started talking about it together in the past couple of weeks. We’re looking into the possibility of hiring a constitutional lawyer to draft some legislation. We’d like to get it on the ballot here in Oregon.
Krys,
If you do that I’d love to be involved. I just don’t know the procedures to start a project like that on my own. I’ve been nudging Basic Rights Oregon that they should be doing something like this, but they don’t seem interested.
I think my only problem with this is that marriage isn’t a religious institution. It’s a legal contract.
It’s been a tool the church has used in the past to influence the state, but it’s always been a tool variously used for political and economic means (inheritence, property rights, etc).
I’m not pro-marriage, but I feel as if the claim that marriage belongs to religion when it has been used to maintain governments is kinda dodgy.
Mostly it’s just a response to the right wing attachment to marriage as religious — I’m happy to oblige such a designation. Personally, I’d love to see some loosening of marriage as a tool of political and economic control, as described in Cedar’s recent post. So designating marriage as outside the authority of the government — whether based on an argument of the religious nature of it or the personal freedom to define your family as you wish — seems like a good way to go about doing that.
Additionally, it has always bothered me how much civil marriage really is set up as the regulation of a ceremony. Unlike other contracts, there’s no small print to read. What you sign does not go over the details of what it means to be legally married. What you’re actually getting is a license to perform a ceremony (and only if the specifications of your ceremony fit government standards). Then you have to perform a ceremony (a secular ceremony has been deemed an adaquate option), then all those involved in the ceremony sign a piece of paper saying that the ceremony was performed. Then a whole mess of separate laws that most folks probably haven’t even read dictate what privileges and responsibilities are afforded to those who have performed the ceremony within government specifications. Sure the state benefits by being given regulatory power over which ceremonies are okay and which are not and imposing a system of property rights that not everyone necessarily agreed to. But it still seems like regulation of religion is a big part of it.
The paperwork for a domestic partnership, at least in Oregon, is a lot more clearly and simply a contract that you sign. Unlike civil marriage, no ceremony is required.
I wrote two similar pieces the other day… you might enjoy them… might not… here they are:
http://trailerparkqueer.wordpress.com/2008/11/15/putting-my-queer-shoulder-to-the-wheel/
AND
http://trailerparkqueer.wordpress.com/2008/11/15/the-paradox-of-gay-marriage-rallies/
Either way, i’m in agreement about the marriage for nobody thing… it’s kind of ridiculous.
TPQ
Marriage, religious or not has romantic connotations. A civil union is just a contract. In fact, brother and sister should be allowed civil unions. I’m not condoning incest but a brother and sister who live together (nonsexually) and raise children together might find good use for the benefits currently given by marriage. Even 2 friends, even opposite-sex friends might benefit from the benefits given by marriage but not want to get married, because they’re not in love and don’t like the connotations of the word marriage. People who are in love and are raising children don’t logically deserve any special rights compared to people living together platonically raising children.
So civil unions should be provided for any 2 adults that want them. Marriage can continue as a personal term and something churches grant people.