Here’s how I think it should work:
1. People who want to form a civil union do so in their neighborhood city hall or using a JP, like they do now. I think civil servants acting in their official capacities are the only agents who should have the authority to give these commitments the force of law.
2. Priests, pastors, rabbis, allahs, and similar religious functionaries are free to perform whatever religious rites and ceremonies they choose, and are free to restrict participation in whatever fashion they deem Godly, righteous, or moral. If that means left-handed blondes aren’t allowed to be married in that congregation, so be it.
3. The civil union described in (1) should the only relationship that has any legal standing. The results of item (2) should have comparable legal standing to the many other rites and ceremonies performed by our various religious institutions — Bar Mitzvah, Confirmation, Baptism, etc. — no less and no more.
4. Existing marriages should, of course, be grandfathered into the new arrangment.
5. My contemplated civil union should be a contract that any two people of legal age and capacity can enter, just like any other contract. There should be no restrictions, by law, based on gender, race, religious affiliation, or similar attributes.
6. I see no reason why the contemplated civil union needs to be restricted to two persons. I’ll leave that debate to another day, however.
david says
in Massachusetts, anyone can be given authority to perform a single marriage on a particular day. Would you allow clergy to participate in that, or would you bar them from it?
somervilletom says
I would treat the clergy as any other individual.
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p>Having been honored to perform this role myself, I would eliminate virtually all of the moralistic language currently associated with the documentation, however.
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p>I’m not sure I see a need for anybody to “perform” anything. I suppose it can be seen as analogous to swearing in a witness or public official, though.
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p>In my view, the result should be a simple legally-enforceable contract.
hrs-kevin says
We already have civil marriage distinct from religious marriage. Religious marriages already have no legal standing by themselves in this country. You can have the pope marry you during the Superbowl halftime show and it still won’t have any legal standing unless you get a civil marriage.
There is no reason to go through enormous contortions to give marriage a different name. I personally find it insulting that anyone would find the need to call my own civil marriage something different in order to avoid offending religious zealots.
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p>Regarding #1, the requirements for serving as a Justice of the Peace, are pretty low in this State. I see no point in excluding clergy.
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p>Regarding #6, our body of existing marriage law has been built up over centuries to deal with marriage as a two-way contract. Once you make men and women equal parties, the laws extend almost seamlessly to same-sex marriages. A three-or-more-party marriage contract would be entirely different from existing two-party marriages, and would require many new laws and legal precedents. Imagine the division or property issues involved in a three-way divorce! I don’t think we want to go there.
somervilletom says
I agree with you that we’ve already solved the problem here in MA by allowing same-sex marriage, at least we’ve gone most of the way there. I, too, have a civil marriage — I was married by Patrick Ward in Brookline City Hall.
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p>I don’t care what we call it, I’m talking about the legal instrument, how it is accomplished, and what its effects are.
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p>Some married couples in Massachusetts are not able to file federal income taxes jointly. That is simply wrong. I am suggesting an approach that provides a greatest-common-denominator that can be applied nationwide.
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p>
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p>I see no point in including clergy, on anything more than an ad-hoc basis.
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p>In my view, questions of “faith”, “fidelity”, reproduction, what religious beliefs children shall be indoctrinated in (if any), and so on are questions that should be firewalled, as much as possible, from the public domain.
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p>I see no value to society of investing such religious practices with the mantle of civic authority, and I see a great deal of harm.
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p>We do not allow clergy to give a common victualler’s license to a would-be restaurant owner, we don’t allow clergy to give drivers tests and approve the issuance of drivers licenses, and neither should we automatically give them the ability to perform unions/marriages.
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p>I think the clergy should be invited to bless or not bless any living arrangement they find acceptable or unacceptable. I think that blessing should, in general, have no relationship to any matter of law or property.
hrs-kevin says
The only issue is whether other state’s and the Federal government are going to recognize same-sex marriages. Making up a new category doesn’t solve anything without passing a Federal law, and most probably a Constitutional amendment, to force states to give such relationships, whatever they are called, the same rights as marriages in all cases.
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p>I think the big problem here is not about the word “marriage” but that there are still many people who do not wish gay couples to enjoy the same rights as heterosexual ones. Making up a new term for marriage doesn’t solve that problem.
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p>
somervilletom says
I don’t understand why you continue to write things like “Making up a new term for marriage doesn’t solve that problem” — is there something about “I don’t care what we call it” that isn’t clear?
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p>Perhaps an amendment is needed, but I’m not at all sure. The separation between church and state has been mandated by the Constitution since its adoption.
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p>The issue is the inappropriate co-mingling of religious and civil influences, not the name we use to describe the result. Call it what you will, but get religion out of the process.
hrs-kevin says
Why make up a new concept? We already have civil marriage. And it has already been extended to same sex couples in a number of states. We just need to finish the job.
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p>There is no religious issue as far as the law is concerned.
liveandletlive says
I think it would be great if the word “marriage” simply became obsolete in describing a lifelong union between two people. It conjures up visions of implied roles and predetermined futures. Remember the days of “love, honor and obey” and “I now pronounce you “man and wife”. I know these words are no longer used, however it hasn’t been that long ago that there isn’t still a touch of those impressions inherent in the concept of marriage today.
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p>A civil union inspires respect and equality between two parties. It would be a refreshing way to become a family and I can see it becoming quite popular. I think gender should be left entirely out of the law, and so should the word marriage.
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p>If we are going to be rewriting the law, why don’t we just start fresh completely and help to remove all of the negative implications that the word marriage carries with it.
liveandletlive says
you would be doing the women of this country a huge favor if you would allow the word marriage to become obsolete.
sabutai says
“I think it would be great if the word ‘marriage’ simply became obsolete in describing a lifelong union between two people.”
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p>From what I can tell, the word “marriage” describes a current union between two people, what with the astronomical divorce rate.
liveandletlive says
“til death do us part” or “as long as we both shall live”.
What is the new vow?…. “until we find each other intolerable”. Laugh, laugh, laugh……
We need to let the word marriage go, it really doesn’t mean much anymore. I like Civil Union better. It will be interesting what they come up with for Tax Status. Instead of “married filing jointly” it could be what? “Legally United filing jointly”? Perhaps?
sabutai says
Sometimes I wonder if making marriage a legal 10-year contract subject to automatic renewal, rather than a supposed lifetime commitment, could actually lower the rate of failed marriages in the long run.
christopher says
There are still enough people that want a religious ceremony that it makes sense to take care of both sides at once. As long as a secular option is available, that’s fine with me.
somervilletom says
The secular option is not even fully available here in MA, because the feds and a huge number of other states don’t recognize it for same-sex couples. It is the entanglement of secular and non-secular concerns that is problematic pretty much across the board.
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p>By separating the secular and non-secular aspects, from a legal perspective, we both emphasize and simultaneously moot the non-secular objections. Nobody proposes to block religious institutions from imposing whatever restrictions they like on their own believers. The point is that non-believers should have access to the full spectrum of civil and secular benefits (and costs).
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p>Whether we call it “marriage” or “union”, the full spectrum of benefits should be available to interfaith, interracial, and same-sex couples — in every state.
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p>The approach I propose adds NO extra burden, and therefore takes nothing away from those who want a religious ceremony. It would, however, add a great deal for those who are currently excluded.
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p>It is already necessary, here in MA, for a couple who want to marry to do the following:
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p>1. Apply for a marriage license at a municipal office.
2. Have the ceremony performed and witnessed (with necessary paperwork signed by the celebrant).
3. Return to the office that issued the license to “register” the completed paperwork.
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p>Currently, a priest, pastor, minister, rabbi, or similar member of the clergy is automatically empowered to do step (2). All I’m suggesting is that anybody be allowed to perform step (2), as in any other civil contract, without jumping through special hoops. My own preference, frankly, is to simply skip step (2) (from a legal perspective) and proffer the legal consequences automatically upon the completion of step (3).
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p>It doesn’t matter to me whether the resulting relationship is called a “union”, “marriage”, or anything else. My point is that, whatever its called, there should be no legally-binding implication, by virtue of their “office”, of anything a religious functionary does or doesn’t do.
christopher says
Of course there are still too many restrictions in the same-sex context, but I thought you were saying you don’t want clergy privilege to legalize any unions. I guess we’ll just agree to disagree here. Since most faiths don’t recognize same-sex marriages, then a JP is the only option. Of course, athiests have always had to find a JP, which as far as I know is readily available just about anywhere. I also disagree with skipping step 2. Many forms of contracts have to be witnessed, and to me there IS something a little more special about a marriage than just a bunch of paperwork.
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p>Also, your diary title references the establishment clause, which I don’t believe is relevant. As long as the state isn’t playing favorites then it is neither establishing religion nor prohibiting its free exercise.
somervilletom says
The primary objection to same-sex marriage is religious.
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p>The establishment clause is relevant because it is intended to protect non-believers (or believers who nevertheless want church and state to be separate) from the “morality” imposed by various religious bodies.
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p>By proffering the ability to conduct marriages on clergy — and in embedding their associated religious beliefs in secular law — the current approach implicitly elevates the religious beliefs of the clergy to the status of law, in violation of the establishment clause.
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p>The same argument was used implicitly, if not explicitly, to correctly strike down blue-laws and eliminate prayer in schools. The prohibitions on same-sex marriage belong in the same category.
christopher says
We can already make the argument that if your religious views don’t make room for SSM then YOUR faith doesn’t have to perform them. To force them to do so WOULD be a violation of the free exercise clause. We can also already make the argument that legally prohibiting something on religious grounds IS a violation of the establishment clause. As a member of the United Church of Christ, which favors marriage equality, I make this argument all the time.
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p>I fail to see how completely delinking marriage from religion is going to win any converts. The people who oppose it may well still argue that they cannot allow their state to engage in a practice so at odds with their religious beliefs. Think of abortion, for example. The procedure itself is in no way considered a religious act, but many still oppose it and advocate its prohibition on the grounds of personal religious belief.
mr-lynne says
… the misunderstanding is.
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p>”I fail to see how completely delinking marriage from religion…”
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p>Nobody is looking to rewrite a religious definition of marriage. All we’re saying is that there is a civil definition of marriage that should be a matter of civil law. Religious opinions on what ‘marriage’ means not only will hold, but the government would remain (as it should) powerless to make a religion redefine its sacraments. People and institutions are certainly free to hold their personal religious beliefs… they just aren’t free to have those beliefs define the civil institution.
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p>It’s a ‘civil’ delinking,… the ‘links’ of individual and religious institutions are not only theirs to make, but are protected, just not civilly instituted (which is the current state of affairs).
hrs-kevin says
Is there anywhere in the country where you cannot be married by a Justice of the Peace? I don’t think so.
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p>And who really cares if you have to jump through a couple of hoops when you get married?
somervilletom says
In most states, the JP is constrained by law against marrying a same-sex couple. That constraint is a religious one, enshrined in a supposedly secular process. So long as the JP is NOT constrained to impose those religious constraints, and is therefore required to marry anyone who is of age, then same-sex couples care a great deal.
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p>It is, presumably, far easier to find a JP who will formalize a same-sex marriage (especially when forbidden by law from discriminating on the basis of gender preference) than to find a Roman Catholic priest who will marry the same couple.
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p>I agree that no clergy person should ever be forced to conduct a same-sex marriage. I argue that no JP should ever be permitted to BLOCK a same-sex marriage.
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p>That is the point.
christopher says
…lift all bans on SSM. I suspect you’ll find little argument here on that one. The status quo regarding allowing religious officiation in no way contradicts that goal, especially when you consider denominations like the United Church of Christ and the Unitarian Universalist Association, which do solemnize such unions.
somervilletom says
remove any legal implications of any rite or ceremony performed by any religious functionary.
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p>I’m glad that UCC and UUA perform them. The Episcopal church was making great progress until it was hijacked by the rightwing, and made the mistake of attempting to accommodate their objections.
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p>I’m saying that whether a church does or does not perform a “marriage” ceremony should have zero bearing on any matter legal of substance. Give unto Caesar what belongs to Caesar and all that.
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p>Let the pious argue about whether, for example, a “blessing of a union” is or is not the same as a “marriage” — the Episcopal church spent years thrashing at the one (it was problematic for divorced and interfaith hetero couples long before it surfaced as a gay/lesbian question). The outcome of such discussions should, IMHO, have zero influence on, for example, the federal income tax filing status of the participants involved.
christopher says
I’m absolutely with you that churches should not force their doctrine on the rest of us as public policy. I DO believe that if a cleric performs the marriage that should be good enough for the law. Remember, a couple seeking a religious marriage DOES need to apply for a marriage license from the secular authorities now anyway. I think the current balance is fine.
somervilletom says
I think that the actions of a cleric should be irrelevant to whatever happens under the law. As PeterPorcupine wrote, we no longer recognize any legal implications of being baptized, confirmed, or any other Christian ritual.
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p>The approach I propose encompasses yours. No clergy would be prevented from doing anything they are able to do now. No couples would be blocked from anything available to them now. In the meantime, it protects the rest of society from the adverse impact of investing too much legal power in religious institutions.
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p>In short — I see no good reason to perpetuate the status quo (regarding the legal role of the clergy) and a great many good reasons to change it.
christopher says
I tend toward the philosophy of “if it ain’t broke…” and on this particular detail I don’t see that it’s “broke”. There’s no adverse impact on the rest of society because people who don’t want a clergy marriage (or their clergy won’t perform it) can always go find a JP. It’s the marriage laws themselves that need fixing, not the participation of clergy.
mr-lynne says
… in that active religious advocates for one side seem to think that they can own the term and it’s civil definition. The split would clarify what they have the ‘right’ to define.
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p>As I’ve said before… there is not problem with a religious officiant additionally being a civil officiant, so the fix wouldn’t actually change much. Perhaps officiants would require an extra step to register for the civil authority. Not a big deal for a downside and a pretty meaningful concession on the upside.
mr-lynne says
… is that based the quantity of people that want both that it’s ok as is? It should be noted that ‘taking care of both sides at once’ isn’t being taken off the table. The religious and civil officiant can be the same person (as they are now).
jconway says
I have been saying this for years that this is the most straightforward constitutional solution to the marriage question. We are simply taking away rights the states gave themselves that they should never have had in the first place. The history of defining marriage has always been to define it to exclude others. The first laws requiring a civil marriage to be legally codified in state law were in the midwest as an anti-Mormon measure, they were continued in the South as an anti-black and anti-miscegenation measure, and more recently as an anti-homosexual measure. The states, the people, nobody should have a right to define what marriage is.
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p>Marriage is and always has been a cultural and religious institution that should be defined solely by those cultures and religions. Now we see an attempt on the left to define marriage for the country in a way that some on the religious right see as infringing upon their definition of marriage, meanwhile they through the ballot box have now forced their religious definitions of marriage onto nearly a dozen state constitutions.
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p>The madness must stop and Toms solution is the most constitutional way to do it at the federal level. Also I say this as a religious person that I personally want the government out of marriage entirely, and that opinion in a wonderful way also helps out non-religious people since it means my church no longer has ANY kind of authority to define who can and cannot get civil rights.
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p>I have also yet to meet a single religious conservative who is opposed to this solution. Its the best way to get the broad majority of Americans behind equality since it takes religion out of the discussion entirely. Of course I will support SSM as the lesser of two evils since I would rather have gays and lesbians get equality sooner rather than wait for the more appropriate constitutional solution-but this is the best way to preserve the tradition of the secular state while also protecting the religious freedoms of the various religions that make it up-as the founders intended.
christopher says
A key reason that same-sex couples have been fighting so hard for marriage equality is so that they can have the same rights and privileges afforded by the GOVERNMENT as recognized for opposite-sex couples. If you take government out of marriage you’ve lost joint filing status, visitation rights, and a whole host of other things that are afforded to couples on the basis of their legal marriage.
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p>In the past I have half-heartedly suggested that if it’s nomenclature people object to then we should be consistent and call any union formalized by a JP a civil union and any formalized by a cleric a marriage regardless of the gender of the people involved, recognizing that legally the two terms are equal. Churches currently have NO AUTHORITY to define civil rights for others; they just think they do and the law needs to stand up to them. Those whose personal beliefs oppose this are still going to oppose it. I would take your history back a bit further. Marriage was religious because the priests were the literate ones in the community. It’s no accident that “clerk” and “cleric” come from the same root. Just because marriage has “always been defined to exclude others” in your words, does not mean that needs to continue.
somervilletom says
The civil/legal aspects of marriage are different from the religious aspects.
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p>By “civil/legal” aspects, I mean things like inheritance, tax status, property ownership, access to medical records, and so on. By “religious” aspects, I mean things like “blessed”, “sacrament”, “ordained by Allah”, and so on.
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p>I argue that there should be no religious participation in the civil/legal aspects whatsoever. I explicitly advocate removing all restrictions on SSM from these civil/legal aspects. I don’t care what we call the result — “union”, “marriage”, “covenant” — whatever floats the boat of a majority of voters.
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p>I argue that there should be, by parallel construction, no government participation in the religious aspects whatsoever. I explicitly advocate removing all claimed or threatened restrictions on SSM from these religious aspects. If a particular religious tradition refuses to perform the religious rite for a gay couple, I suggest that that couple explore alternative traditions.
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p>I’d like to add, as a personal note, that I am a heterosexual who has been married and divorced twice within the Episcopal church. When I chose to marry a third time (to a non-believer), my church (with which I had a 30 year relationship) insisted that my prospective wife and I request special permission from the Bishop and attend six weeks of marital “counseling”. When I said that my prospective wife and I already had long-standing relationships with credentialed therapists (my own happening to also be a DDiv and ordained UCC minister) and that my wife resented any suggestion that she required the permission of anyone except herself, my priest’s response was that we should decide whether we were “fish or fowl” — if we wanted a religious wedding, we did what the church demands. If we wanted a civil wedding, we were welcome to do so. I noted, in my response, that neither he nor the Bishop had any such reservations about receiving our substantial (5-figure) annual pledge. We were married in Brookline town hall, by Patrick Ward, and are no longer affiliated with the church in question.
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p>I share this to make the point that religious institutions have a long history of discrimination and bigotry. The Christian church has a long history of institutionalized misogyny that has only recently (in the past century) been softened — and even that with much wailing and gnashing of teeth.
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p>I passionately believe that the civil/legal aspects of whatever-we-want-to-call-it should be available to same-sex couples. I leave the debate over the religious aspects to those who have a horse in that race.
somervilletom says
For what it’s worth, the Episcopal church never did take a contemporaneous stand on the question of slavery — citing “unity” as its justification. It thus avoided the splits that drove apart a number of other Protestant bodies (such as, for instance, the “Southern Baptist” from the “American Baptist” traditions).
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p>The current schism in the Episcopal church (and, for that matter, the world-wide Anglican Communion) ostensibly over the question of ordaining gay and lesbian clergy/bishops is a stalking horse for those elements who have steadfastly rejected women’s ordination.
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p>The Episcopal church should have, in my opinion, offered pastoral assistance to those who struggled with their homophobia, misogyny, and xenophobia — and quietly and graciously directed those parishioners and clergy who insisted on hanging on to their bitterness to the exit of their choice. Leaving behind, of course, the millions of dollars in church-owned real-estate that drove much of the “concern”.
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p>The Episcopal church blew the major moral issue of the nineteenth century and they are blowing this one in the same way and for the same reasons.
christopher says
Your church said no, so you sought out a civil marriage, as you had every right to do. That option is already available as your experience has shown. We have the definition in hand. If the law of a state says, “Marriage is the exclusive relationship between one man and one woman,” all we have to do is amend the sentence to say, “Marriage is the exclusive relationship between two consenting adults.” There. Done. Next case! We don’t really need to start from scratch writing definitions. (My suggestion of JP=civil union/clergy=marriage was only half-hearted, remember, and only to make a point about consistency.)
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p>I’m sorry your church (especially one progressive enough to have a gay bishop) treated you that way. Maybe you should ask your therapist about his church:) You seem to think that your solution will nullify religious objections to SSM, but I disagree. Do you really think the Pat Robertsons and James Dobsons of the world will all of a sudden say SSM is just fine with them? I doubt it. As I believe I already mentioned, abortion is not a religious ritual, but many who object to the practice AND wish the government would enforce their objections as a matter of law base their arguments on religious belief.
mr-lynne says
… nullify religious objections either. I think it will blunt religious aspirations for defining civil law according to their religious precepts. It makes the ‘line they can’t cross’ more clear, blunting their perceived authority on the matter.
somervilletom says
I don’t think I’ve written, anywhere, that my proposed change “will nullify religious objections to SSM”. Instead, I think it will moot them, legally, for non-believers, as it should. I believe in the free exercise of religion; I believe that free exercise should be divorced (pun intended) from the workings of the state.
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p>You are correct that those who would ban abortions base their objections on religious beliefs, and I’m glad that the courts have so far recognized that fact in rejecting their attempts to impose those religiously-inspired beliefs on the rest of us. I’m glad to see us finally and belatedly doing the same with embryonic stem cell research — another case of the government egregiously injecting specific religious beliefs into matters of secular law (and funding).
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p>I fervently hope our government will eventually do the same for SSM. I like your suggested change to the legal definition of marriage.
christopher says
dhammer says
You’ve got it backwards, God didn’t let the state into the marriage business, civil society let god into the marriage business. Under your scenario my marriage, because it began as a solely civil affair (No Justice of the Peace for me, we went common law), gets taken away, but your marriage, because some guy stood up in front of the room with a colorful gown gets to be called marriage? No thanks!
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p>
Marriage has a much longer history as a civil institution than it does as a religious one. Ever since the Council of Trent the church has been sticking its nose in people’s business, your point on state’s using marriage laws to limit rights is dead on, but that’s exactly what Tom’s suggestion does, it limits the rights of the non-religious to get married.
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p>Just because you want words to have a different meaning, doesn’t mean they won’t. If you want to have some religious ceremony and call it marriage, you can, but that’s the state saying we’ll let God into the picture.
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p>
This is exactly why I think it’s a terrible idea. Under this scenario, my wife and I aren’t married, we’re simply in a civil union. But you and your spouse, because you had your ceremony in a church (but then went to a JP) are. I put my money on the fact that we’ll overturn those amendments before marriage loses its social meaning. It’s a tough row to hoe, but we’ve actually got momentum on our side.
somervilletom says
You wrote:
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p>If you and your wife got a marriage license and registered your marriage, then you are “married” under the current law and under my proposal. I’m a little confused because you’ve said “we went common law”. If you did that in Massachusetts, then you have neither a “civil union” nor a “marriage”, because (ref):
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p>My proposal would not change the legal impact of your situation.
dhammer says
It lessens my marriage because currently the word marriage conveys societal power of acceptance of my relationship. If churches are willing to change the name of marriage to some other word, I’ll consider your proposal, but until then, I think it excludes non-christians from “real” marriage.
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p>In the post I responded to, Jconway says:
So if the government is out of marriages, only the religious can truly get married. It accepts the definition of marriage as a christian sacrament performed by a religious institution and creates this other thing (which you can also call marriage) that the state is involved with. Currently, marriage is a civil institution in which there can be a religious component, lets keep it that way.
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p>I’m not looking for a compromise with the right. Marriage is and always has been a civil institution, the only reason the church was involved was because they were the civil institution for chunks of history. The right doesn’t value the relationship between gays and lesbians, they don’t want it called marriage, because they feel they own marriage. They don’t.
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p>You can call this new thing marriage, but it’s different and concedes that a bunch of bigots are the true owners of marriage. I’m not willing to give them that.
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p>And I’ll let you figure out if I’m not really married or if maybe there are places other than Massachusetts…
jhg says
Maybe the way to do it is to call legal marriage “civil marriage” and extra legal religious marriage “religious marriage”.
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p>Those of us with civil marriages can still be “married”. The ones who want religious ceremonies should also have to get a civil marriage for it to count.
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p>The cleanest way to do it would be to bar clergy from being allowed to conduct civil marriages, at least not while they were functioning in their clerical capacity. That way the two couldn’t be confused.
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p>This would put the burden on the religious folks to explain the purpose of their marriage ceremony. And the relevance of their religious views to anyone’s rights to get married.
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p>True, it’s more of a logical thought process then a useful political idea, but it sure makes sense to me.
peter-porcupine says
huh says
As BT already pointed out, your proposal would have been a lot more effective if it hadn’t come in a one paragraph addendum to a column filled with anti-gay snark.