SUMMARY
Should same-gender couples be allowed to get married? Alternatively, should government establish a new institution of "civil union" whereby same-gender couples could register to receive the same benefits as married couples? Would either outcome destroy the institution of marriage? Is it a violation of civil rights to prohibit marriage to same-gender couples?
This essay proposes a simple solution to these controversies, based on the generally accepted principle of separation of church and state. Marriage is a religious sacrament bringing souls together in the presence of God. Civil union is a legal partnership certified and enforced by government whereby people acquire rights and responsibilities for the benefit of themselves and society. Marriage and civil union are two completely separate concepts. Most people will choose to have both. But it is perfectly possible for a relationship to be either a marriage or a civil union without also being the other type.
Our laws should be changed so that government no longer licenses or certifies marriages, while marriage no longer conveys governmentally enforceable rights and obligations unless the partners also choose to have a civil union. Each religious institution should be free to choose for itself whether to allow the sacrament of marriage for same-gender spouses, regardless of government laws. Civil union is a business partnership -- a legal partnership certified and enforced by government whereby people acquire rights and responsibilities for the benefit of themselves and society. It is a matter of civil rights that government must allow business partnerships, including civil unions, for same-gender partners with the same rights and obligations pertaining to opposite-gender partners. Government should establish laws through the political process regarding permissible biological and property relationships among the partners in a civil union, including the question whether more than two people can be partners. Whether more than two people are allowed in a marriage, and how many of each gender, should be freely decided by each religious institution without government interference -- because marriage is purely a spiritual relationship that does not convey any governmentally-enforceable rights or obligations.
LIST OF TOPICS IN ORDER OF APPEARANCE (scroll down)
(1) INTRODUCTION TO THE ISSUES
(2) SEPARATION OF CHURCH AND STATE
(3) MARRIAGE IS TO RELIGION WHAT CIVIL UNION IS TO GOVERNMENT
(4) CIVIL UNIONS COVER ALL GOVERNMENTALLY ENFORCEABLE PROPERTY OR BUSINESS RELATIONSHIPS BETWEEN TRADITIONAL HETEROSEXUAL COUPLES, GAY AND LESBIAN COUPLES, AND ALSO PERHAPS AMONG MULTIPLE PARTNERS (IF GOVERNMENT CHOOSES TO ALLOW MULTIPLE PARTNERS).
(5) THE ISSUE OF PERSONAL REVULSION OR RELIGIOUS ABOMINATION REGARDING SEXUAL ACTIVITY BETWEEN SAME-GENDER PARTNERS
(6) MARRIAGE, RELIGIOUS INSTITUTIONS, GENDER, AND PLURALITY
(7) TRANSITIONING TO A NEW LEGAL SYSTEM OF MARRIAGE AND CIVIL UNION
(8) CHILDREN, PARENTS, SOCIETY, AND TAXES
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(1) INTRODUCTION TO THE ISSUES
The immediate purpose of this essay is to propose a clear and compelling solution to the intense public debate over same-sex marriage. This is a very complex issue, which can only be resolved by careful analysis of the spiritual, societal, and legal purposes of marriage. The separation of church and state is a very important principle which will help resolve the issue.
Let's think clearly about marriage and civil union. What are the benefits to individuals and to society? How are the spiritual benefits and responsibilities intertwined with the legal benefits and responsibilities, both for individuals and for society?
Why should two adults get married? What good does it do for two individuals, and for society, if they either get married or create some kind of government-recognized contractual relationship? What connection is there between the spiritual and the governmental aspects of people's family relationships?
Any adults who wish to do so can live together in the same household. They might be of opposite genders, or the same gender. They may choose to engage in sexual relations, or not. They might produce children biologically, or adopt children, or choose to remain without children. They may choose to get married in a religious ceremony, or get "married" in a civil ceremony by a government official; or they might create some other contractual relationship for specific purposes such as joint ownership of property, a pledge of mutual assistance in time of need, or inheritance. They might choose to live together without marriage and without any government-sanctioned civil union or any other kind of written contractual relationship; with or without sexual relations, and with or without children. What are the benefits of getting married, for the individuals involved and for society? What are the benefits of forming some non-religious civil union or contractual relationship, for the individuals involved and for society?
(2) SEPARATION OF CHURCH AND STATE
Both church and state agree that there should be a separation between church and state.
"Render unto Caesar the things which are Caesar's, and unto God the things that are God's" (Matthew 22:21). Since that command comes from Jesus, whom Christians regard as God incarnated, Christians might also add ironically: What God has set apart, let no man join together.
The United States follows the same principle expressed in different words. The first clause of the first amendment to the Constitution says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Both God and our Constitution tell us we should not mix government and religion. Other nations might have theocratic governments, such as the Islamic Republic of Iran. But one of the main reasons people came to America was to escape religious persecution carried out by governments. Our nation was founded and expanded by people from many different nations and religions, who worked together cooperatively by setting aside the religious differences that could have made them mortal enemies back in their countries of origin.
It is essential that we must not have laws founded in the theology of any particular religion and hostile to other religions. The fact that a particular religion says God considers a certain behavior to be an abomination (sodomy, for example), must not be used as a reason for enacting a law to prohibit that behavior or to deny people their civil rights merely because they privately engage in behavior considered abominable by a religion or by social custom in particular subcultures.
The benefits and obligations conferred by marriage should be entirely spiritual and are presided over by God and by religious officials. If people want material benefits from government on account of their relationship with each other, or if they want government to enforce promises they have made to each other, then they should establish a civil union.
(3) MARRIAGE IS TO RELIGION WHAT CIVIL UNION IS TO GOVERNMENT
Marriage is a sacred sacrament under the auspices of religion. Government has no right to interfere by specifying requirements or restrictions. Government should not be issuing licenses or certifying marriages. Sexual expression can be an important element of spirituality; therefore a religion has every right to allow or refuse marriage to same-gender partners. Must marriage be restricted to two people of opposite gender? Indeed, must marriage be restricted to only two people? Such questions should be entirely for the religious institution or the participants to decide, without interference from government laws.
A civil union should be a binding partnership agreement, certified and enforced by government, in which the partners agree to support each other in ways established by laws adopted by elected legislators or voter referendum. Civil union partners should be bound by law to provide for each others' support. Government is thereby relieved of providing support in case one partner suffers adversity. Therefore government might (or might not) decide to grant tax breaks or other subsidies to civil union partners. However, if a partner chooses to dissolve the civil union, then government might require the withdrawing partner to pay back the total of all tax breaks that partner has received because of the union, since there will no longer be the legally enforceable pledge of mutual support whose permanence was anticipated as the reason for granting the tax breaks.
(4) CIVIL UNIONS COVER ALL GOVERNMENTALLY ENFORCEABLE PROPERTY OR BUSINESS RELATIONSHIPS BETWEEN TRADITIONAL HETEROSEXUAL COUPLES, GAY AND LESBIAN COUPLES, AND ALSO PERHAPS AMONG MULTIPLE PARTNERS (IF GOVERNMENT CHOOSES TO ALLOW MULTIPLE PARTNERS).
Civil unions are legally certified business partnerships. It is a matter of civil rights that government must allow business partnerships -- including civil unions -- for same-gender partners with the same rights and obligations pertaining to opposite-gender partners. Government should not inquire into the presence, absence, or nature of sexual relations between partners in a civil union; rather, the role of government is to certify the existence of a civil union and to enforce the contractual relationship between the partners. Government should establish laws through the political process regarding permissible biological and property relationships among the partners in a civil union, including the question whether more than two people can be partners.
Examples of civil unions should certainly include: traditional married couple; gay or lesbian couple; widow and her adult child. If government allows the concept of civil union to extend to multiple partners, then examples might include adult members of an extended family; members of a co-op or commune. Civil unions might generally be thought of as domestic partnerships, except that there might be some cases where two or more nuclear families live separately but desire the mutual protection afforded by a civil union (for example, perhaps the husband of one nuclear family is the brother of the husband or wife of another nuclear family living in a different house).
It is a matter for the political process to decide whether government may restrict civil union to only two partners, and what if any restrictions are imposed on such factors as age difference or biological relationship between the partners. For example, laws might prohibit civil unions between parents and their children in order to protect the laws governing taxation of personal trusts and inheritances.
Marriage and civil union are two completely separate things. Marriage is a spiritual relationship. But only partners in a civil union should have legal rights and obligations to each other which the government enforces through the courts.
Civil unions are expected to be permanent and to carry significant rights and obligations between partners. Therefore prospective partners should be given a permit for civil union only after they pass an examination proving that they understand those rights and obligations. A handbook should be published by authority of the Legislature after advice from the Bar Association, comparable to the landlord-tenant handbook currently in use. After passing the exam and getting the permit, prospective partners should then be given their certificate of civil union only after jointly signing an affidavit swearing that they will fulfill those obligations and respect the rights of their partners.
(5) THE ISSUE OF PERSONAL REVULSION OR RELIGIOUS ABOMINATION REGARDING SEXUAL ACTIVITY BETWEEN SAME-GENDER PARTNERS
It is a fundamental matter of civil rights that government must not restrict civil unions to two people of opposite gender, for many reasons including: we cannot know whether sex is part of the relationship in any particular civil union; sexual relationship is a matter of personal choice; and government should not inquire into delicate private affairs and might be prohibited from inquiring if the Constitution includes a right to privacy.
But suppose "we know what they are doing and it's wrong."
The fact that some religions declare sodomy to be an abomination should not empower that religious prohibition to be enacted as law; because that would violate the separation of church and state. The God of Abraham might punish a nation which allows sodomy by destroying entire towns (like Sodom And Gomorrah), the Pope may condemn it, Saudi Arabia under Muslim sharia law may punish it by beheading or stoning to death; but in America the law must tolerate it because we do not allow the establishment of religion as governmental authority.
The fact that I have gut-twisting revulsion when I imagine what two men do to each other in bed should not give me the right to pass a law prohibiting other men from doing it, or denying them the right to have a civil union merely because I assume their relationship is sexual. To those who feel homosexuality is abhorrent and should not be enabled by government certification I ask which is worse: Would you prefer to have predatory men prowling for multiple serial partnerships, or would it be better to have men in long-term committed relationships and pledged by law to take care of each other?
(6) MARRIAGE, RELIGIOUS INSTITUTIONS, GENDER, AND PLURALITY
Marriage is a sacramental joining of souls with the blessing of God. A marriage might take place in a church, home, or forrest. It might be presided over by a priest, minister, rabbi, imam -- or by nobody except the people who are marrying each other.
People who feel a profound spiritual connection to each other might wish to join their souls in the presence of God, and might choose to have their joining blessed by the ceremonies of a church or religion.
Partners in a civil union might or might not want to have their relationship blessed by any religion. Each religion should be free to set its own requirements for marriage without regard to the laws governing civil unions.
There is no inherent reason why a marriage must be between two people of opposite gender. If the theology of a particular religious institution or the spiritual beliefs of the two people allow a marriage between people of the same gender, then other institutions or government should have no right to prohibit it within the confines of the religion that authorizes it. Government has no right to interfere in any religious belief about the sacred sacrament of marriage.
There is also no inherent reason why a marriage must be limited to only two people. If the theology of a particular religious institution or the spiritual beliefs of the people involved allow a marriage between three or more people of whatever genders, then the marriage should go forward without interference from other religions or from government. The Mormon Church formerly allowed polygamy, but when Utah was under consideration for statehood the federal government interfered and the Mormon leadership was fortunate to have a divine revelation that polygamy should be disallowed. Perhaps if government now adopts a model of civil union that allows multiple partners, the Mormon leadership might have a new revelation that would validate the spiritual legitimacy of what is reportedly a widespread practice in Utah. A church should be free to adopt its own rules for marriage without interference from government; and in any case a church should be able to allow or prohibit plural marriages regardless whether the government prohibits or allows multiple partners in a civil union.
A church should have the right to prohibit marriage to a same-gender couple even if government allows a civil union between them; likewise a church should have the right to bless a marriage among three or more adults of the same or different genders even if government prohibits a civil union among them. A religion or its clergy may choose to recognize a civil union as being a marriage, or may choose to require a civil union as a precondition to marriage, or may completely ignore the topic of civil union. That's because civil union belongs to Caesar, while marriage belongs to God.
(7) TRANSITIONING TO A NEW LEGAL SYSTEM OF MARRIAGE AND CIVIL UNION
Following enactment of civil unions legislation, the people entering into a marriage might or might not choose to form a civil union under government law; and the partners entering into a civil union might or might not choose to be married, depending on their spiritual inclinations and the willingness of a religious institution to bless their relationship. It should not be assumed that spouses in a marriage are also partners in a civil union. Government should never automatically acknowledge any new marriage as being also a civil union. Under no circumstances should government authorize agents of a religion (priest, minister, rabbi, imam) to perform or certify civil unions.
An already-existing marriage certified by law before the enactment of civil unions legislation poses a dilemma for the legal system. Of course its status as a marriage within its religious institution is unchanged. Perhaps, as a matter of convenience, already-existing marriages should additionally be acknowledged as civil unions unless at least one spouse files written objection. However, if the laws governing civil unions are strengthened to make the legal obligations of partners more onerous and more permanent than is presently the case for spouses in a marriage, then some sort of affirmative opt-in should be required before imposing civil union status upon already-existing marriage. Perhaps such an opt-in could be handled through any of the tax forms wherein married couples have traditionally received advantages on account of being married. For example: check the box if you wish to continue receiving this tax break, and by checking this box you also are choosing to have your marriage given the additional status of civil union with all the rights and obligations established by law.
What would be the benefits and obligations of being married under the new system? Whatever the spouses and the religious institution say. Marriage would be entirely a matter of spirituality and religion, with no obligations or benefits legally enforceable by government.
What should be the legal benefits and obligations of being a partner in a civil union? Presumably they should include all the benefits and obligations presently pertaining to marriage. Most people have no idea what those are. The Legislative Research Bureau should compile a list with citations to the laws. That list, plus newly enacted benefits and obligations to strengthen the significance and permanence of civil unions, should be the core of the handbook suggested previously as a requirement for getting a permit for civil union. People get married today for sentimental reasons, or religious reasons, with no clear idea of the benefits and obligations they are incurring. Some people write prenuptial agreements to circumvent the usual laws, especially when one spouse has far greater wealth than the other or has major obligations to a spouse or children from a previous marriage or to business partners. Legislation establishing civil unions should clarify which rights and obligations are mandatory, and which ones can be waived or enhanced through prenuptial agreements.
Civil unions should be harder to enter and harder to dissolve than present-day marriages. If civil union is strong enough, each partner can feel assured of support in case of adversity, and society can feel assured of stability.
There will be a need for state law to conform to or at least to accommodate the federal definition of "marriage." Legislators should investigate how other states, which have adopted civil unions legislation, have dealt with the issue of conformance and accommodation of federal law.
Here are a few ideas for conformance language (which attorneys would probably need to improve to deal with technical issues):
"For purposes of interpreting and applying federal law, and solely for that purpose, "Civil union" in the State of Hawaii shall have the same meaning, rights, benefits, and responsibilities as "marriage.""
And in addition, perhaps
"Any marriage performed in the State of Hawaii after the effective date of this legislation shall be treated as a purely private religious sacrament and shall not be treated as a marriage under federal law, unless and until the partners in the marriage apply for and receive a certificate of "civil union" according to the definition of "civil union" in state law."
And in addition, perhaps
"For purposes of interpreting and applying federal law, and solely for that purpose, any marriage performed in the State of Hawaii before the effective date of this legislation shall continue to be treated as a marriage under federal law."
(8) CHILDREN, PARENTS, SOCIETY, AND TAXES
Children belong to their biological parents, and/or to the guardians or adoptive parents who feed them and give them housing. Children also belong to the society in which they live.
Children are a resource for society in the same way as air, water, and land. A society will die if it produces no children. A society will wither and languish if its children grow up ignorant and unskilled. Education is the reproductive organ of a society, and children are seeds of its future. That's why we require schooling, and do not allow adults to use children solely as domestic servants, factory workers, or pets. Society has a right and obligation to intervene to protect children living in homes where the adults abuse or neglect them.
Most children are precious to their biological and/or adoptive parents, as illustrated by the fact that parents voluntarily choose to make babies, or to adopt children. Parents going through divorce often fight hard and spend large sums of money to obtain sole or joint custody of the children. So perhaps society has no need to encourage parenthood by providing tax breaks to parents. Most couples in traditional marriages love each other and will take care of each other in times of adversity. So perhaps there is no need for society to encourage civil unions by providing tax breaks to the partners. But society certainly has a right to give such tax breaks for child-rearing or for being a partner in a civil union. Society also has a right to demand repayment of accumulated tax breaks from a partner who withdraws from a civil union, since there will no longer be the legally enforceable pledge of mutual support whose permanence was anticipated as the reason for granting the tax breaks.
From time to time the legislature might change the laws regarding tax breaks or other subsidies for having a civil union or for having children, depending on whether there are enough civil unions to maintain social stability and whether there are enough children to ensure the future survival of the society.
(c) Copyright September 22, 2009
Kenneth R. Conklin, Ph.D.
All rights reserved
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Send comments or questions to:
Ken_Conklin@yahoo.com
** A note about Dr. Conklin's other writings:
Dr. Conklin's Ph.D. is in Philosophy with a focus on epistemology, education, and ethics. He occasionally ventures outside his now-usual topic of Hawaiian sovereignty to think carefully about other controversial topics and especially civil rights issues.
For essays since 2004 on topics other than Hawaiian sovereignty, see
https://www.angelfire.com/hi5/bigfiles3/ConklinOtherTopics.html
For some of his scholarly articles published in refereed academic journals before 1990 see
https://www.angelfire.com/planet/conklinpubsbeforehaw
For a collection of more than 800 webpages by Ken Conklin about Hawaiian sovereignty, see
https://www.angelfire.com/hi2/hawaiiansovereignty/
