November 20, 2008
It is ironic that after the passage of Proposition 8, the "California Marriage Protection Act," on November 4, its opponents singled out the Mormon Church as the first target of their anger. In 1846, the Mormons were forced out of Illinois by an act of the state legislature for practicing an alternative to traditional marriage, polygamy. Decades later, they were coerced both by the federal courts and by military force into repudiating this core religious belief in order to win statehood for Utah, their refuge. This fall, the church spent $20 million to influence voters to impose a single official definition of marriage on all citizens.
Wouldn't you think that both Mormons and gay-marriage advocates would recall their respective histories of persecution and exclusion at the hands of government?
What is telling about the Proposition 8 campaign and its aftermath is the resemblance to religious wars. The framers of the U.S. Constitution remembered the devastation caused by state- supported religion in Europe and wrote religious liberty into its First Amendment. Of course, this did not eliminate the restriction and even persecution of religious groups by legislatures and courts, as Mormon history readily attests, but it laid down a principle of equality and tolerance that is refining judicial decisions to this day.
The same could be true of the marriage wars. Were a state to disestablish marriage, recognizing it as a fundamental right but refusing to endorse any particular form of it, it could defuse the battles that have grown more fierce and costly with each round.
In deliberating the case for same-sex marriage last year, the California State Supreme Court considered just such a step. It asked state Attorney General Jerry Brown whether under California law, the legislature could "change the name of the legal relationship of ‘marriage' to some other name, assuming the legislation preserved all of the rights and obligations now associated with marriage" — that is, a name that could equally apply to all conjugal contracts regardless of gender. Brown responded yes, because "the words ‘marry' and ‘marriage' have no essential constitutional significance under the California Constitution."
In a brief submitted to the court on August 31, 2007, he spelled out the state's argument: "The State does not deny the significance of marriage as a social and spiritual idea; after all, marriage existed long before the State of California ever recognized it in a statute. The state does not create a marriage: From antiquity, Western society has recognized that a marriage is created by the witnessed interpersonal commitment of the two persons themselves. The state can only give a marriage standing in the law. The only institution at issue in these proceedings is the state-sanctioned regime to which the label ‘marriage' has been attached in statute."
Thus, "so long as the Legislature ensures that all rights and benefits enjoyed by married couples under the law are also available to domestic partners — including, most importantly, the right to self-declaration and public legitimation of one's life- partnership," it could "employ a ‘neutral' term to describe state-sanctioned life-partnerships regardless of the couple's sex."
Though courts both state and federal have established a fundamental right to marry, the attorney general continued, "the focus was on the relationship of the couple, not the verbiage used on state legal forms." Further, the arguments of both parties to the case that a neutral legal term would diminish the honored place of marriage in society "are not arguments of a constitutional status."
The reason both parties agreed (in opposite ways) on this point of "honor" is that both were seeking state approval of their own particular definitions of marriage. As Brown noted, "the meaning of marriage comes from the understanding that it has been given in our society." But at this point in our social history there is no universally agreed-upon meaning of the term — even within some religious groups.
With this information, the court could have taken the bold step of disestablishing marriage, letting the many and various societal groups embrace their own definitions and restricting state involvement to the administration and adjudication of a universal family contract available to all couples regardless of gender or even implied sexual activity, including dependent or interdependent blood-relatives and friends who also deserve the rights and benefits presently reserved to the married and to domestic partners.
Such a move would have turned the question of the meaning of marriage back to the social and religious communities from which the institution arose and to whom it properly belongs. Rather than detract from the honored status of marriage, it would have allowed all societal groups to honor it in their own way. It would have mooted the well-taken point that denying the term "marriage" to gay couples makes them "second-class citizens" by making all couples simply citizens, equally. Further, it would have put the capstone on the right to privacy by denying state approval to particular sexual life-styles and focusing its attention on the family unit, no matter how it is constituted — something that California family law in fact does anyway.
Instead, the court bought the honored-place argument, the one the attorney general said had no constitutional status. After 120 pages of opinion, it came down to that.
Whether or not a neutral stance would have quelled the marriage wars is hard to determine — there would have been much residual frustration on both sides for neither getting their way — but at least it would have pointed them toward an authentic recognition of the diversity in our society and encouraged everyone to respect it.