Civil Unions Or Marriage?

The New Jersey legislature wasted no time in choosing civil unions for the legal recognition of same-sex relationships in response to the state's high court ruling that New Jersey's equal protection clause requires a recognition of same-sex relationships on the same par as opposite-sex relationships. The court gave the legislature discretion to label the legal relationship as it pleased, as long as it achieved equality.

Many gay activists complained that the civil union statute is not equivalent because it does not label the relationship a "marriage." Nonetheless, the civil union statute does afford same-sex couples the same rights and privileges as married, straight couples, such as adoption rights, inheritance and hospital visitation rights. Vermont and Connecticut both recognize civil unions; only Massachusetts recognizes gay marriages. California law recognizes domestic partner agreements, which is similar to civil union laws.

The appropriate legal recognition of relationships between either same-sex or opposite-sex couples is a civil union because it does not carry with it the religious connotation associated with marriage. As Georgetown law professor Jonathan Turley has argued, "It is the agreement itself, not its inherent religious meaning, that compels the registry of marriages by the government. "Once married, the legal rights and obligations of the couple change in areas ranging from taxes to inheritance to personal injury to testimonial privileges."

Turley has made the point that our current marriage laws are contradictory. State governments have criminalized same-sex marriages without official licenses as a matter of policy, while not policing religious practices governing divorces. The "moral validity of a marriage" should be left to each religious group to decide according to Turley. Government's role, he urges, should be limited to enforcing the civil contract.

A bill introduced by Sen. Brent Steele (R-Bedford) for the upcoming session points to government's absurd role in solemnizing marriages. SB 19 would give Indiana's Governor, Lt. Governor and members of the General Assembly power to solemnize marriages between opposite-sex couples. Indiana's Defense of Marriage Act limits marriage between one man and one woman. Indiana law currently delineates 10 classes of persons who may solemnize marriages, including the following civil servants: judges; mayors; city clerks; and circuit court clerks. It also specifically grants religious authorities the power to solemnize marriages, including: a clergy of a religious organization (i.e., minister of the gospel, priest, bishop, archbishop or rabbi); the Friends of the Church; German Baptists; Bahai faith; Church of Jesus Christ of Latter Day Saints; and an imam.

Indiana, like most other states, statutorily limits marriage to opposite-sex couples based largely on religious tradition. Yet, Indiana law permits civil servants of no religious affiliation, to solemnize a marriage between a couple with the same force and effect of a religious wedding. All married couples are required to obtain a marriage license from the county clerk, which is a function of civil, not religious law. Indiana law also permits any married couple to dissolve their marriage, without proving fault, regardless of whether the marriage occured as part of a religious ceremony or whether the dissolution is officially recognized by the couple's religion.

It seems to me that Sen. Steele is actually bolstering Turley's argument to treat all marriages as civil unions and not religious institutions by adding to the list of civil servants who may solemnize the opposite-sex couple's union. Let's just admit what it really is--a civil contract between two consenting adults. If it's really a marriage in the religious tradition as proponents of gay marriage bans argue, then the marriage is incapable of division by anyone other than God. I suspect that's a choice with which few proponents of gay marriage bans would be willing to live. Even the Grand Dragon of Moral Righteousness, Eric Miller, has been divorced once.