Tuesday, March 26, 2013

A proposal to solve the "gay marriage" problem

The crux of the "marriage" question, both in the religious and civil realms, is over the provision of services or attachment of privileges to a status. It is not really about the status itself, because if there were no consequences of that status (e.g. access to services/privileges that would not otherwise be granted, or restriction for privileges, etc. that would otherwise be granted), the status would be irrelevant, and people could do whatever they wanted to and call it whatever they wanted to and it would make no difference.

The State currently provides privileges, etc., for having the status labelled "married". In addition, that status, as far as the State is concerned, is -granted- BY the State through 1) it's assigned agents (e.g. judges and military officers) or 2) agents it recognizes. It recognizes, currently, as agents, holders of several non-State offices, e.g. religious leaders, ships' captains, etc.

The first category of these (the judges), is active: the State actively confers the status.

The second is passive: the non-State institution confers the status, and the State recognizes it after the fact. The difference is that each non-State institution carries some restrictions to the extent to which the State will recognize their marriages. For example: a marriage performed by a ship's captain is only recognized (by the State) if the ceremony was completed "on the high seas" -- that is, in international waters.

If this civil context were all there is to it, then by all means let anyone who wants to call themselves married do so! Give everyone equal access to whatever privileges are available.

The government doesn't, shouldn't, and really can't (under the Constitution and common sense) care about the sexual practices of any legal adult.

My main concern, though, is that this much more diluted definition of "marriage" will then be forced to be recognized as "marriage" by those who, for religious reasons, would never otherwise do so, causing them to have to choose between their faith and the law.

I agree that religion should stay out of the State's business.

But the State needs to stays out of religion's business as well, which it is not showing any inclination to do. I hear almost every day about people trying to get the law to strike against religious institutions that do not grant the privileges and services attached to the "marriage" status to everyone, divorced from the particular faith and morals of that institution.

Given this propensity, I assert that any law created on this issue should explicitly exempt from civil and criminal liability, and without exception, any institution that grants marriage-restricted privileges and services differently than the State.

Just as religion cannot, should not, and must not attempt to force the Law to conform to it's particular status recognition code, so the Law cannot, should not, and must not attempt to force non-State institutions to recognize, as holding a particular status, arrangements that are beyond the scope of that institution's definition of said status.

For this reason, to reduce confusion, I propose the following solution:

  1. Adjust the current definition of "persons", for legal purposes, to exclude corporations.
  2. Remove the word "marriage" from the domain of the State entirely, replacing it in that context with the term "civil union" or something else.*
  3. Explicitly sever the connection between non-State institutional "marriage" and these civil unions, so that institutions are not civilly or criminally liable for disconnecting them.
  4. Explicitly legislate that the State MAY NOT recognize, as a de facto civil union, an arrangement made in a non-State institution (that is, to be recognized by the State, a contract must be executed, same as every other arrangement -- no special privileges for religious "marriage").
  5. Miscellaneous: to handle "ex post facto" rules, any people who are married already under current law will remain under the old paradigm until death, divorce, annulment, or voluntary acceptance of the new rules by executing a civil contract, after which they will be governed by the new paradigm.**

    As far as the State would be concerned, any domestic arrangement can be made by such a contract, subject to the limitations of current contract law, of course***. What is permitted in each arrangement will be dictated by the contract, under an "assumed allowed unless specifically excluded" paradigm (because the State doesn't care what you do in your own house), without, of course, overturning other laws that might apply, such as domestic violence laws, etc.

This proposal has the benefit of a) granting equal access under law to the State's marriage-attached benefits, privileges, and services; b) giving a clear limit (the limits already embedded in contract law) to allay the fears of the "slippery-slope" people, and c) making sure that the rights of religious groups are upheld as well.

This is just an outline, of course: the details would need to be worked out through the normal legislative process. And the outline itself may need a little tweaking.

Nevertheless, those caveats aside, I think this is a reasonable proposal that protects the rights of all. What do y'all think?


* This is only necessary to reduce the confusion caused by using the same term to refer to vastly different things that look similar on the surface. It also will help allay the concerns of religious people and institutions that the State may be going to force them, within their group, to recognize for religious purposes those whom they may not wish to recognize in that context.

** Given the divorce rate in this country, it shouldn't be long before that group is gone or completely irrelevant.

*** Or rather, under the slightly modified contract law proposed.