Great idea, in theory...

Mark Kleiman is his usual sharp self today, but I'm having a bit of a problem with his take on gay marriage. In his other writing he's usually very good about paying attention not only to what's theoretically desirable but also what's politically practical. But on this question, I think he's off.

As I understand his take on it, the preferred solution would be something similar to what the UK does. If you want to get married, you go to the appropriate governmental office, establish that you meet the relevant legal requirements, take your legally binding oaths, do the paperwork, etc., and at that point you establish the legal basis of the relationship. This establishes all of the legal rights, privileges, obligations, responsibilities, etc. If you wish, you can then go to any religious institution that will recognize your union, and perform whatever religious ceremony you please, or none at all if that's what you prefer. The legal part (in the government office) has no particular religious significance, and the religious part (in the church, synagogue, mosque, sacred circle, whatever) has no particular legal significance.

Kleiman proposes civil unions for everyone (the legal part), with marriage (the religious part) for those who wish it.

And I agree, that model has a lot to recommend it. We could do far worse. It would certainly be better than what we have now.

But I see no way to even begin bringing it about. The word "marriage" is far too loaded. Telling millions of straight couples that they're actually civil-unioned, and only religious institutions can provide "marriage," is a non-starter. Furthermore, the adoption laws, tax laws, insurance laws, inheritance laws, etc., etc., etc., don't say "civil unioned." They all say "married." That's why the word is so important--because that's how the legal basis is defined. We've already seen in New Jersey that saying "civil unions have the same legal rights as marriage" doesn't work--insurers are saying they follow the federal laws, which say "married," not "civil unions." Changing one law--governing who can legally marry--is more do-able than changing all of the other laws from "married" to 'married or domestically-partnered' or whatever the new phrase would be.

Yes, this may lead to a hodgepodge of state laws, until a Supreme Court decision, just as interracial marriages were OK in some states but not others until Loving v. Virginia. Messy, but the political process often is. Marriage is usually regarded as a state matter, with the feds only stepping in on equal-protection grounds. (My preferred solution for dealing with it at the federal level: The feds recognize any marriage that the person's state of residence recognizes. Yes, it has some imperfections and problems, but again, it's a step in the right direction.)

As for the argument that this is somehow telling the Catholic Church that their understanding of one of their sacraments is incorrect: Not at all. I can't get married in the Catholic Church. Nor in an Orthodox synagogue, nor in a Shi'a mosque. But none of those institutions can prevent me from going down to the courthouse and having a civil marriage performed by a judge. The Church may not consider me to have met their sacrament; but they cannot infringe my legal rights, either. We already tell the Catholic Church that they are free to refuse the sacrament of marriage to the divorced, for example. But we do not allow the Church to prohibit anyone else from performing such marriages, either. And as long as the laws are written in terms of "marriage," then nothing else will do. Does Mr Kleiman see a political-feasible way to at least start nudging things toward his desired state of affairs?

As for whether Obama wants to deny gays the rights to marry: I don't claim to know what he wants or doesn't want. But he certainly hasn't taken any actions suggesting he wants gays to be able to marry, either. In the context of his campaign rhetoric about being a "fierce advocate" for gay rights, I think his lack of action is telling. He may want gays to be able to marry, but he doesn't seem to be willing to say much of anything, let alone expend any political capital, on the issue. So far the extent of his "fierce advocacy" has been a cocktail party for gay activists and fundraisers. Which is, as far as I know, one cocktail party more than G. W. Bush held, so I suppose that's something.