Blogs > Liberty and Power > Privatizing Gay Marriage

Jun 10, 2006 6:13 pm

Privatizing Gay Marriage

I am a bit behind in my newspaper reading, so I was particularly surprised by an article published in Thursday's New York Daily News. Written by Rabbi Michael Lerner,"The Right Way to Fight for Gay Marriage" argues that all unions should be privatized. Lerner, who is chair of the Network of Spiritual Progressives, writes:

... marriage ought to be taken out of the state's hands entirely. Let people be wed in the private realm with no official legal sanction. Then, religious communities that oppose gay marriage will not sanction them, and those like mine that sanction the practice will conduct it. Rather than issuing marriage certificates or divorces, the state would simply enforce civil unions as contracts between consenting adults and enforce laws imposing obligations on people who bring children into the world.
This approach is far more likely to be a winning strategy for those who wish to beat back the assault on gay rights.

I suppose what is most surprising to me is that a genuinely libertarian argument for privatizing marriage made it to the Op Ed of one of the most highly circulated daily newspapers in America.

Cross-posted to Notablog.

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Jonathan Dresner - 6/13/2006

I just don't see why calling this "civil marriage" is such a sticking point.

You're preaching to the choir here.

Millions of people are already in civil marriages

Yeah, but the ones who wanted religious marriages got them: signing the civil form was not the culmination of the wedding I participated in; it was just the paperwork. (It's one of the ironies of life that our Jewish wedding contract, the ketubah did not need the signature of the rabbi, just the witness signatures of "three observant Jews" attesting to our intent, whereas the civil form could not be approved by anyone except the rabbi. So, in a sense, the state forced us to involve a religious leader in our ceremony...)

Jason T. Kuznicki - 6/12/2006

I agree entirely that civil unions for all, which cover only the governmental and contractual aspects of marriage and family life, would be an equitable solution.

I just don't see why calling this "civil marriage" is such a sticking point. Or why calling this "civil unions" means that the state is suddenly "out of the marriage business." It would still be doing exactly the same things it did before, only using different words for them. To call this a change in policy has a whiff of Orwell about it, if I may say so.

To give a parallel example, the state makes public officials take an oath of office, but this in no way interferes with oaths taken in religious contexts (vows of poverty, silence, et cetera). They're two different things, just as religious and civil marriage are two different things. We do not worry that an oath of obedience in religious life somehow denigrates the oath of office for a judge, nor vice versa. The same should be true of religious and civil marriages.

(There is, however, one practical argument <em>against</em> giving civil unions to all: Millions of people are already in civil marriages, and many of them will take offense if their marriage is "demoted." This is why I say promote everyone -- and demote no one.)

Ralph E. Luker - 6/11/2006

Jason, The advantage of getting the state out of the marriage business altogether is that it removes all religious justification for opposition to gay unions. That is, the state can recognize all civil unions as such and religious understandings of what a marriage is don't need to come into play at all. The state is responsible for civil unions; religious communities are responsible for marriages. Under those conditions, why would anyone who chooses not to participate in a religious community ever want to be married? Everything that non-religious people might want in terms of public recognition of a relationship is conveyed by a civil union. Those religious communities that are willing to allow gay couples to marry are free to do so. Those religious communities that are unwilling to allow gay couples to marry are free to do so. But all couples are eligible for civil unions.

Jason T. Kuznicki - 6/11/2006

To play devil's advocate, why is it that a "civil marriage" is not libertarian -- but a "civil union" is? I do think that there is a state interest in marriage, albeit a far smaller one than exists today. Yet I don't see a terminological problem in calling it marriage at all. As regards the civil side of things, a marriage is a contract. As regards the spiritual and familial side, it's not much of the government's business at all, except insofar as it arbitrates when the contract is invoked.

That said, I do think that civil unions for all, and marriage only though churches and families, would be a fully equitable solution.

Aeon J. Skoble - 6/11/2006

This is the sort of problem that arises from the blurring of civil and religious rituals. Inasmuch as marriage is understood as a legal matter, atheists can get married, but then so should gays. If marriage is understood as a religious ritual, then it would be a matter for each sect whether gays could do it, but atheists surely couldn't. Clergy often insist that the parties be at least baptized, even if not very observant. An atheist who had a religious wedding would have to be somewhat insincere (about the proceedings, not his or her intended).

Chris Matthew Sciabarra - 6/11/2006

Ralph, one follow-up question about the institution of marriage. I'd be interested in your thoughts on this, since we agree on much here:

While religious communities have indeed defined who is and is not eligible to be "married," what about those who are a-religious or atheists? If marriage is to be defined only by religious communities, rather than the state(and clearly, different religious communities define it differently, ranging from the monogamous to the polygamous, and from the heterosexual to the homosexual), would it be possible, within those definitional strictures, for atheists to "marry"?

I don't mean this as some kind of flippant question; I'm sincerely interested, especially since I know so many atheists who are married! Clearly, atheists could have "civil unions," but can they be "married" if marriage is seen as a strict function of religious definition (however broad)?

Chris Matthew Sciabarra - 6/11/2006

Hey, Ralph, excellent post. I agree completely!

Ralph E. Luker - 6/11/2006

Chris, I'm far from being a libertarian, but the rabbi's argument is one I've been making for several years, now. I do think that there is a state-interest in civil unions. They promote civil order and provide some framework for the nurture of society's children. But marriage ought to be a separate thing entirely: whether it's considered a sacrament or not (religious traditions differ on that), it is rightly understood as a function of our religious communities. They, not the state, should decide who is eligible to be married and under what circumstances. The state also should be responsible for recognizing the dissolution of civil unions; only religious communities should determine the conditions and possibility of a dissolution of marriage. Currently, clergy act jointly on behalf of state and church (or religious communities) in performing marriages. But the distinction that you, the rabbi, and I want can be achieved only by a refusal of the clergy to act as an agent of the state in performing marriages or by the state disbarring the clergy from so acting.