Harold in the San Francisco Chronicle: "Separation of Church And State: Let Religion Define Matrimony"
This opinion piece ran in the San Francisco Chronicle on Wednesday, August 6, 2003.
Why all the outcry about gay marriage? Why does the issue of gay marriage matter so much to people?
The timing is not surprising. Vermont's civil union law is still young, Canada is on the cusp of legalizing gay marriage, several states are now considering some kind of legal recognition for gay couples, and the U.S. Supreme Court decision striking down anti-sodomy laws is only weeks old.
But what is puzzling is the virulence and fervor of the opposition. After all, the idea of other civil protections for gays and lesbians is far less controversial. The central aims of gay rights organizations have been and remain protection against discrimination in housing and in the workplace, and stricter laws against anti-gay violence, but the opposition to these movements is comparatively quiet.
The difference, of course, has to do with the kind of institution marriage is. And this is a very confusing matter. Marriage is at once economic, religious and political. It is a complex conflation of two individuals' property and debts into one; a confirmation of faith (in whatever religion) and a spiritual union; and a legal designation that confers an enormous variety of rights and responsibilities, from citizenship to immunity from testifying against one's spouse.
Or it may be less than all this -- many marriages are civil, for example, and sometimes economic unions are limited by prenuptial arrangements.
It runs counter to any reasonable notion of civil freedoms to deny gays the same political and economic rights as everyone else. But religion is a different matter. Here the right of religious institutions to make their own decisions in defining their own rituals and practices is paramount. Given that marriage is a tangled web of these different types of institutions, what should we do?
We could, of course, do as Bush and the Vatican suggest, and claim that marriage is a religions institution first and foremost, and ban gays from the institution permanently, as many (though not all) major religions do.
But as long as marriage retains its importance as a civil economic and political institution, to do so would be to perpetuate great injustice. We cannot exclude gays and lesbians from enjoying the enormous variety of rights and privileges that we extend to heterosexuals. So we could grant gays the right to marry, while carefully trying to disentangle the civil aspects from the religious. This has been the solution in the Netherlands.
Another solution is to create a new legal designation ("civil union") that is the economic and political equivalent of marriage, but which has no religious connotations. This has been Vermont's solution.
The problem with these last two solutions is that the disentangling is hard.
Marriage is one of the most important ceremonies in many major religions, and many people can no more see marriage as purely civil than they could a bris or a baptism.
Rather than trying to clean the religion out of marriage so as to make it suitable for state business, the state should wash its hands of marriage altogether. Governments should not grant marriage licenses, or otherwise keep record of their citizens' private doings. The state's proper interest in any two people's choice to make a life together is quite limited. States should grant civil union licenses to adults, gay or straight, who request them, in order to protect both members if the union dissolves, and in order to facilitate other legal procedures, such as inheritance and citizenship, that are already regulated by the state.
There is no good reason, ultimately, for states to be involved in the business of marriage. The question of marriage should be left up to individuals and their churches to decide. The state, however, cannot overlook its responsibilities to protect the basic economic and political rights of its citizens.
James Harold is an assistant professor of philosophy at Mount Holyoke College in Massachusetts.