Post-Script re: Indiana and Gay Marriage

A friend of mine had an interesting experience today, one that struck me as relevant to the debate about gay marriage.  A good friend of his is engaged to be married to a woman who is currently living here in the United States, but it is not an American citizen.  Her visa is about to expire, and so the couple (and my friend) went to the courthouse so that they could get a civil marriage.  This way, she could stay in the country so that they could plan their real (in this particular case, Jewish) wedding, scheduled for a year from now.

He made the comment that attending this event at the courthouse was a very ambiguous experience.  The woman's immigration lawyer evidently had made it very clear that the parties present had to do everything possible to make it look like a "real wedding"--take pictures, have vows, etc.  But everyone recognized that the "real" wedding wasn't going to happen for another year.  So, according to my friend, it had this strangely surreal quality--it was a wedding, but it was not a wedding.  He wondered if this pseudo-wedding, which they had no choice but to do, will detract from their real wedding in a year.

Which got me thinking--why should the government insist on any sort of ceremonial or symbolic actions associated with getting married?  Or, perhaps more to the point, why does the government insist on its involvement in those ceremonial and symbolic actions?  Why make this couple come to the courthouse and have a judge or civil official witness a public taking of vows?  Why not just have them fill out some kind of form, maybe with witnesses, and deliver that to the appropriate registry clerk?

My point is not to denigrate the importance of public recognition of a marriage.  I think that is a good thing, and it is important.  And I think there is no question that the government needs to be involved with the administration of the rights and benefits associated with marriage.  But why is it necessary, or desirable, to conflate the two?

Think about it this way.  If you want to get married in the United States, the baseline rule is that you need a governmental official to participate in the public acknowledgement of the union of a couple, with an appropriate clergyperson acting as an awkward stand-in for the governmental official.  What is the point of that rule?  If you are a religiously-oriented couple, you will want an appropriate clergyperson at your wedding for reasons that have nothing whatsoever to do with the quasi-governmental role that is placed on that clergyperson (except insofar as you need the clergyperson to make sure that you also get the legal benefits of marriage).  And if you are not religiously-oriented, why do you need some governmental official to be awkwardly inserted into your wedding?  Why not have the wedding witnessed by friends, family-members, Elvis, or whomever the couple chooses to employ?  

Or perhaps the couple wants no public acknowledgement of the union at all.  Maybe they are hardcore Randians who believe that sentimentality distracts from the objective elements of their economic partnership, or they think marriage is stupid but they want the tax benefits.  Or, like in my friend's experience, the couple wants, but can't get now, the religious elements.  Why should the government make any of these people go through even the most minimalist ceremony?

Or, here's a personal example.  I've been served, twice, as a wedding officiant.  In both cases, I had to obtain "ordination" from some internet church in order to do be the officiant, since I was not a governmental official.  In both cases, while I was very moved to be asked to officiate, I was uncomfortable about the "pretending to be a clergyperson" thing.  I did it anyway, but there's no reason I (and the people getting married) needed to jump through that weird hoop.  It seems purposeless.

All of this suggests that perhaps we should reconsider some version of "civil unions for everyone."  This notion, that government should "get out of the marriage business," got a bad rap from gay marriage advocates, for reasons that I understand.  Many of the civil union regimes proposed and/or adopted in the early 00s were basically stripped down versions of marriage, ones that lacked certain rights.  Allowing straight folks to access "full loaf" of marriage and limiting gay couples to "half a loaf" of civil unions is demeaning to LGBT people and consigns them to a second class status, I agree.  But the easy solution there is to place all legal unions on equal footing.

There is also the argument that civil unions lack the official social and governmental recognition that marriages have.  Fine, but that gets back to my original question--why is the government interested in this sort of formal recognition in the first place?  I agree that once you offer it to some people, you need to offer it to everyone, but I'm not sure it makes sense to offer it to anyone.  Let's allow people to set up their own weddings in any manner they want, free of the awkward and unnecessary mandatory intrusion of governmental officials into the process.

The final argument, it seems to me, is that LGBT people want to claim the moral and (if I may) spiritual associations that are linked to the word "marriage," and want some sort of official acknowledgement by society that their marriages are the same as those of straight folks.  I completely understand the emotional power of this idea.  Which is why, perhaps counter-intuitively, I think this proposal is only viable after the Supreme Court has recognized the fundamental constitutional equality of same sex and opposite sex relationships.  Perhaps then, when the issue is resolved in some definitive way, the proposal can be uncoupled to some degree from the fight for LGBT equality, and can be viewed on its own merits.  Along similar lines, rather than retroactively converting all existing marriages to civil unions, which does have a "I'll burn down this house rather than let you have it" quality, there could be some sort of transition period from the civil marriage regime to the civil unions regime, during which civil marriages and civil unions would both be recognized as equal under the law.

Such a proposal, it must also be said, would do much to lower the temperature of this current debate regarding whether "religious freedom" is impacted by LGBT unions.  So long as clergypersons have this strange quasi-governmental function as officiants of the civil component of marriage, the question of denying access to marriage for same-sex couples has civil legal consequences.  Once you remove that quasi-governmental function, the fact that a Catholic priest might refuse to perform the Sacrament of Matrimony for a same sex couple is no different from a Catholic bishop refusing to ordain a female candidate.  Whatever one thinks of the rule against women priests, no one seriously believes that a woman has a legal claim to be ordained in the Catholic Church, and such a claim would be laughed out of court.  

That's not good enough for the people that think that individual believers have the right to opt-out of civil laws on religious freedom grounds.  But for other, more moderate people, this kind of proposal might be enough to reassure them that religious institutions are not going to be punished for opposing gay marriage on theological grounds.  It might be a legitimate place of compromise.  For one thing, it would wipe out almost all of Douthat's Parade of Horribles at the end of his piece from Monday. 

Just a thought.