Warning: This one's gonna get long.
Here we go again.
I attended a rally opposing the proposed constitutional amendment in Massachusetts to ban same-sex marriage. It was fantastic. There is one thing I'd like to bring from the rally into the discussions here about all this marriage stuff. In particular, I'm responding to kid oakland's highly problematic diary entry dealing with his analysis of Kerry's approach. (I'm not trying to pick on kid oakland here. His analysis serves more as a starting point for what I want to discuss than anything else. While his defense of Kerry's statement is, I think, off-base, some of the other sentiments he expresses have been expressed by others here at dKos.) That will come a bit later, though.
First of all, though, I'd like to relay some comments from today's rally, as they are highly applicable to the debate. The rally, sponsored by the
MassEquality drew an large crowd (I'm not sure how many people were there, but heard someone say 1,000). Among the speakers were Representative Byron Rushing (D-Boston), Senator Dianne Wilkerson (D-Boston), and the Reverand Professor Peter Gomes. It was the comments of the President of the Unitarian Universalist Association (sorry, can't remember his name) that are relevant here though.
I'm paraphrasing, but he raised an issue that's sort of been circulating here, albeit in sometimes confusing ways. The issue is that when we are discussing marriage, we are not discussing a singular thing. We need to distinguish between civil marriage and sacramental marriage.
Many people see no distinction. Thus, President Bush can speak of the "sacredness" of marriage, conflating the two things in the process. Let me make this clear: marriage is not a religious institution; sacramental marriage is. Additionally, the state has absolutely no role in sacramental marriage. None.
Civil marriage is the legal contract between spouses and the state. It is the package of rights and responsibilities that come with being married. It is not sacred; it is legal.
These two are conflated in most people's minds. They are simply married. However, they are separate. People can have the sacrament of marriage without any the legal papers. They can have a wedding ceremony with whatever clergy member they want present to declare them "married" in the eyes of their religious group.
However, sacramental marriage carries with it none of the rights, benefits, or obligations associated with civil marriage. If you do not have a civil marriage, you are not married in the eyes of the state or any other institution that takes its definition from the state (businesses, etc.).
Finally, since it keeps coming up here, let's toss in the category of civil unions. Currently, in the United States, civil unions exist in only one place-Vermont. No other state has such a legal arrangement. In Vermont, these arrangements carry with them the state benefits and obligations associated with civil marriage, but because they are not marriage, any rights associated with the Federal Government are left behind. Additionally, since they are a separate category recognized only in Vermont, the benefits and obligations that citizens of Vermont have in these arrangements do not transfer across state boundaries. In addition, civil unions are only available to same-sex couples, who are excluded from civil marriage.
Now, let's take a look at kid oakland's analysis of Kerry's statement yesterday:
it appears John Kerry would consider a Constitutional amendment that met these criteria. ie. One that left the definition of "marriage" on the church half of the church/state divide and provided for a "state" definition of marriage, or "civil union", open to all of us, with equal rights and protections, in all 50 States.
This analysis is wrong. It flows from a refusal to distinguish civil marriage from sacramental marriage. The idea inherent in it is that there is simply marriage. In Kerry's approach, marriage would remain a state recognized relationship open exclusively to opposite-sex couples. He would then allow for the creation of the third relatioinship form of civil unions. Let's look at Kerry's words to confirm this:
Well, it depends entirely on the language of whether it permits civil union and partnership or not. I'm for civil union, I'm for partnership rights. I think what ought to condition this debate is not the term "marriage" as much as the rights that people are afforded. Obviously, under the Constitution of the United States you need equal protection under the law. And I think equal protection means the rights that go with it. I think the word "marriage" kind of gets in the way of the whole debate, to be honest with you. Because marriage to many people is obviously what is sanctified by a church - it's sacramental - or by a synagogue or by a mosque or by whatever religious connotation it has. And clearly there is a separation of church and state here.
Kerry misses, however, the placement of the church/state divide. It's in the two types of marriage. The church state divide exists between civil marriage and sacramental marriage. The point is not that, as kid oakland states, "Kerry leaves marriage on the church side." Kerry leaves marriage heterosexual. That's the issue we should be dealing with.
The creation of a separate category of civil unions to deal with the church/state divide also misplaces the distinction. It's not between the rights and the term, it's between which type of marriage we're dealing with. The creation of this new category creates a separate legal institution. Here we have civil marriages for heterosexuals and civil unions for us queers. That's where the problem of separate but equal comes into play. We can argue whether a new legal relationship is equal. The Supreme Judicial Court, however, has weighed in on this issue. In their advisory opinion to the Senate, the Justices wrote:
Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or "preserve" what we stated in Goodridge were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources. Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal. (citations omitted)
That's what we're dealing with here in Massachusetts. The SJC has ruled that the creation of the civil unions creates a situation where couples are segregated into different institutions based on the sexual make up (opposite or same) of the couples. That's separate. The state cannot treat it's citizens differently--separate them, segregate them--if there is no rational basis for doing so. There is no rational basis for distinguishing between couples based on their gender composition. Not children (rearing or producing), which seem to be a common argument. The Court found no rational basis for this separate treatment existed. Therefore, they ruled that the Commonwealth could not exclude same-sex couples from marriage, and that civil unions would engage in this same separation.
The distinction between civil and sacramental marriage has another important aspect to it. Religious bodies are now, and will continue to be, free to grant sacramental marriage to anyone they bloody well please. They're also free to refuse to grant it. Again, the SJC Justices in their advisory opinion:
n Goodridge, the court acknowledged, as we do here, that "[m]any people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors." The court stated then, and we reaffirm, that the State may not interfere with these convictions, or with the decision of any religion to refuse to perform religious marriages of same-sex couples. These matters of belief and conviction are properly outside the reach of judicial review or government interference. But neither may the government, under the guise of protecting "traditional" values, even if they be the traditional values of the majority, enshrine in law an invidious discrimination that our Constitution, "as a charter of governance for every person properly within its reach," forbids.(citations omitted)
The inclusion of same-sex couples in civil marriage will not affect sacramental marriage in any way.
Now, kid oakland (and many, many others here) have argued that we should re-construct these institutions another way. Leave marriage to the Church (Kerry does not endorse this) and make all state sanctioned relationships civil unions. Hey, at least this is a consistent position. If that were the actuall problematic space of church/state division in this debate, this could be an acceptable solution. However, because of the conflation of civil and sacramental marriages into one thing in popular culture, this is an incredibly unlikely scenario. Most married couples, even if they keep the sacramental status, are going to be unlikely to accept a "demotion" of their relationship to a civil union. I'm using the word "demotion" because I've seen married folks on these boards use exactly that term to describe how they view it. It also tells us that there is a popular cultural conception of these relationships as "second-class."
Civil unions and civil marriages are not the same thing. This isn't merely semantics. Civil unions and civil marriages are separate institutions. As are civil marriage and sacramental marriage. It is this final distinction we must keep in mind as the space of church/space divides in these debates.
My apologies (really sincere this time--no, I mean it) for the length of this. I just felt like it needed a full treatment and that the civil/sacramental was being too clouded in the debates on these boards.
I need to get ready for bed now.