This past week has scored two major victories for same-sex marriage. Last Friday the Iowa Supreme Court legalized same-sex marriage and then just this past Tuesday the Vermont Legislature overrode Republican Gov. Jim Douglas's veto of a bill allowing gay couples to marry, making Vermont the first state to legalize marriage through legislation rather than through the judicial system. Furthermore, as the New York Times has reported, there are currently at least nine other states that are considering such legislation. These developments must be celebrated for anyone who values equal rights; however, this extension of equal rights might come at the expense of the separation of church and state. The next logical step that guarantees equality as well as protects the First Amendment is the abolishment of civil marriage and its replacement with civil unions for both heterosexual and homosexual relationships.
By displacing marriage with civil unions, only those aspects that concern the state will be recognized legally, while those aspects that do not, will be completely privatized. The abolition of civil marriage does not mean the complete privatization of these relationships. Those who advocate for the complete privatization of marriage fail to understand the public nature of private decisions. As the character of private relationships invariably affects society at large, the state has the right to ensure that stable families flourish. The state, therefore, reserves the right to legislate the boundaries of these unions when they address public concerns, such as outlawing polygamy if deemed detrimental to children or women.
While civil unions might end up providing exactly the same legal rights and privileges as civil marriages do today, the new language allows us to reconsider which aspects of marriage should be considered public and which private. This change is not just a question of mere semantics; the language we use affects how we understand the public and private dimensions of marriage. The major, positive effect displacing civil marriages with civil unions will have is that it will privatize the spiritual and religious dimensions of marriage.
The spiritual and religious dimensions of marriage include such factors as love, commitment and other distinctly religious or cultural concerns that fall outside the domain of the state. The Constitution, most notably in the First Amendment, affirms the pluralism of moralities, religious and secular, that exist within the polity.
With regards to marriage, theistic and non-theistic ideologies and practices are private concerns that should not be susceptible to state regulation. The term "marriage," however, does not only convey the public dimensions of the relationship but also the private ones. For many, marriage is by definition imbued with love, commitment and religious or spiritual identification, concerns that the government has no place to meddle with.
Practically speaking, the privatization of marriage would mean that couples who wished to marry would first seek a civil union from the state and then would consecrate this union in whatever manner they wish, if at all. It would be up to each church, synagogue, mosque or temple whether to recognize a couple's union as a marriage.
Some critics assert that removing the spiritual and religious dimensions of marriage from law would debase the institution; that replacing marriage with civil unions removes the fundamental aspects of what is referred to as a "sacred institution." While it is not the business of the state to make sure whether the institution of marriage is preserved or not, it is my contention that the privatization of marriage would actually strengthen the institution of marriage for those couples who choose to consecrate their union. By separating the civil and religious dimensions of marriage, private, extralegal aspects of marriage become voluntary. Private marriage would elevate the institution by separating it from unions done for convenience or financial considerations. The symbolic importance of marriage does not derive primarily from the legal benefits garnered by the state, but rather through the avowal of a couple's lifelong commitment to one another.
Lastly, if marriage is privatized then much of the culture-war debates would become moot. Whether homosexuality is "natural" or a "choice" becomes irrelevant if private citizens and institutions are empowered to define marriage however they wish. So, just as we must rejoice in the developments this past week that affirmed equal rights, we must not lose sight of a larger and fundamentally more equitable solution to marriage.
