The solution to the marriage equality controversy that has caused so much cultural strife and political bloodshed - a wedge issue that even threatened the crown of Miss California - is actually quite simple. The entire problem comes down to sloppy linguistics leading to insoluble legal difficulties. The term "marriage" is really shorthand for two very different concepts, that in time, have merged. Splitting these concepts apart should make everyone happy! And if this works, I'll see if I can come up with something for peace in the middle east. Follow me past the jump to read more...
First of all, a married couple is recognized by the state as having entered into a legal contract which involves a number of obligations and special rights. The state has an interest in regulating this status, because of all of the ways that a spouse can put a claim on things like survivor benefits, inheritance, joint tax filing, support, insurance payouts, citizenship status, etc... It is certainly reasonable for the state to set its own standards for what constitutes a spouse, so that no one can game the system (for example, a marriage of convenience to circumvent the immigration system). Also, the courts need to know who is actually entitled to alimony when one of these contracts outlasts the desires of one or both participants.
From the couple's point of view, this contract also has an appeal. Now, obviously, many heterosexual couples form lifelong relationships and raise families without a legal marriage contract. However, judging from the popularity of the institution, one must assume that many appreciate the security of a legal contract that is not easily dissolved, should one of them find a more attractive partner after a few years. And, as mentioned above, there are many rights that can only be secured by marriage.
But as any priest, rabbi or caterer will tell you, marriage is much more than a legal contract. It is, for most participants, a solemn ceremony within their own clan, which not only binds the bride and groom in the eyes of the state, but in the eyes of God and the community. Sure, some people just go to the courthouse and sign the papers, but the majority want the whole nine yards. In this country - more often than not - that means a religious ceremony.
Unfortunately, for some reason, our laws (and the English language) have tied a legal contract to a religious ceremony, and THAT is the source of all the trouble. We don't have a minister preside over a real estate closing. There is no such thing as a state sanctioned Bar Mitzvah. But for some reason, our laws just lump the legal contract together with the religious ceremony as a single entity and call it marriage.
So the solution is simple.
If you want to enter into a legal contract with another individual to pledge mutual support, co-parenting, and a lifetime of fidelity in exchange for spousal rights, that's great. Such a contract is in the interests of the state, the community and the children born of such unions. And like all legal contracts, there must be no constitutional civil rights violations in which a certain class of people are excluded. To address the obvious straw man argument - defining such a contract as being between two people is not stepping on to a slippery slope. The constitution recognizes the rights of all people as being identical, but it is not discriminatory to write a law that says that the contract can't involve one person, or three people, or one person and one golden retriever.
The name for such a contract is a civil union. And no, I am not talking about a "separate but equal" type of union. The half-measure civil union solution proposed by many conservatives and progressives (including President Obama) is certainly SBE as long as there are some benefits the law gives to married couples, but not to those in civil unions.
What I am proposing is a civil union that is the universal and only standard for determining all of the rights and responsibilities that we now assign to marriage. Gay or straight, if you want survivor benefits, or to visit your partner in the hospital after regular visiting hours are over, sign on the dotted line for a civil union.
Marriage? That's a different thing entirely. Even today, there is no universal standard for being married. Most of the marriages that I know will never be legitimate in they eyes of the Roman Catholic Church, the Lubovicher Rebbe or the elders of the Church of the Latter Day Saints. And they shouldn't be - marriage should be a personal commitment, consecrated as the individuals see fit. It should be like love - in the eyes of the beholder. No one ever has to say "well, I'm in love with her in New Hampshire, but not in Utah".
As in most matters of the heart, people are welcome to involve their own personal spiritual advisors in this step. And no such advisor or religious leader should ever be forced to sanctify a marriage of which they don't approve. If a Grand Dragon of the Klan feels that the miscegenation laws should never have been repealed, then he should not be forced to perform a mixed race marriage (can they marry people? I don't know, too lazy to Google it). But he also has no say in whether or not two such people are legal spouses in the eyes of the law.
So if a gay couple wants to call themselves married, why shouldn't they? Once the legal aspects have been dealt with separately, marriage is simply a state of mind. There is no California proposition to prevent gay people from claiming to be in love (there isn't, right?). So why should there be one to prevent them from claiming to be married? By rights, marriage should be a personal feeling that is publicly expressed to the world, and no judge or legislator should have any say in the matter. Straight and gay people should all have the same right to call themselves married if they feel that they are, by their own standards, by the standards of their religions and by the standards of their communities.
But no state benefits until you sign the contract!