In honor of the recent California marriage decision, I think it is a fitting time to re-visit this particular debate.
This California opinion[PDF] was particularly interesting as this case took place in a state relatively accepting of equal rights. California law, for instance, already afforded essentially the same legal rights and benefits of marriage to same-sex couples that it granted to opposite-sex couples. (Although same-sex couples still were not eligible for any federal benefits of marriage. Thanks DOMA!). What was unusual and contested about the legal setup was that California law referred to same-sex unions as "domestic partnerships" while referring to opposite-sex unions as "marriage." In other words, it was taken as a given under California law that same-sex couples deserve the exact same legal rights and benefits of marriage that opposite-sex couples enjoy. The general issue at hand, therefore, was whether it was constitutionally-permissible for the state to confer, based on sexual orientation, separate-and-unequal labels for what amounts to the same legal arrangement. The court answered in the negative. Same-sex unions are are as deserving of the label "marriage" as opposite-sex unions are. The reasoning is that calling gay unions "domestic partnerships" is odd, discriminatory, and reinforces the notion that gay people are second-class citizens in light of the fact that the state is treating them like it treats married couples.
Contrary to the beliefs of some "marriage defenders," this decision is rather unremarkable. If a state is granting two groups of people the exact same benefits yet for magical reasons calls the conferral of these benefits two separate names, there is nothing particularly "spurious" or "tortured" about striking that practice down. Of course, anyone who actually reads the case is able to discern as much, which is why it's necessary for anti-gay propagandists to cue the ignorant whining about "elite activist judges" overturning the "will of the people"(tm) in 5-4-3... In fact, I find it quite telling that a rather large number of anti-gay blogs and websites immediately denounced this "activist" and "immoral" decision while simultaneously admitting that they had not yet read the decision.
Take note, however. The semantic argument regarding what we label certain relationships is, unfortunately and unnecessarily, the crux of many a "gay marriage" debate.
For instance, back in 2003 when "marriage defenders" were vaguely insisting that "marriage is between a man and a woman because only a man and a woman can get married," the Massachusetts Supreme Judicial Court articulated an important distinction between civil marriage and religious marriage. "Simply put," they said, "the government creates civil marriage.... [It is] a wholly secular institution" in which a religious ceremony is not a prerequisite to obtaining a marriage license. Further, the marriage license is what signifies a state's recognition of marriage. For "the [state- and federally-conferred] benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death." (I talk about some of these benefits here).
A religious institution's recognition of a marriage is distinct from a state's recognition of one. Oftentimes, in the US, couples who marry also engage in some sort of religious or spiritual ceremony recognizing their relationship before their god, family, and/or society. But, and this is the key part, that ceremony by itself does not grant the legal and economic benefits, protections, and rights that coincide with having a marriage license even if that couple considers themselves married.
As I alluded to above, so-called marriage defenders often support their claim that gay people should not be allowed to marry by arguing as though one single definition of marriage exists. Circularly, they "argue," only a man and a woman can marry because marriage can only exist between a man and a woman. From here, they argue that this man-woman definition of marriage is universal and timeless- and conveniently, this definition is the definition that accords with their own personal beliefs on the matter.
The American Family Association, for instance, states that "marriage, like life itself, was not created by government." That is a position that many "marriage defenders" agree with. What they fail to grasp is that what the definition of marriage is is exactly the issue about which we are arguing. In other words, don't tell me what you believe marriage is, tell me why it should be that way. It's nice, you see, that you firmly believe marriage has magically sprung up from some non-wordly source, but our reality is that our government confers benefits on something that it also calls "marriage." You can have your magical-definitely-not-created marriage, but when our shared state gets involved and starts doling out benefits, rights, and protections it must do so in a fair and equal way. And when it excludes people from the protections of a legal scheme, it must justify as to why it does so. Explanations like "marriage was not created by government" are not sufficient.
For, just as "marriage defenders" can argue ad nauseam that The Definition of Marriage Is One Man/One Woman, I could just as easily argue ad nauseam that The definition is some variation of the Two People Who Love Each Other definition. At the end of the day, where does that get us? I'm no more likely to accept the Marriage Defenders' definition than they are likely to accept mine.
Of course, many "marriage defenders," with their inability to concede any point, rarely let a debate take this turn. Rather, they continue insisting that "elite" judges shouldn't overturn The Will of the People (tm), by which they really mean, of course, that a gay-sex-is-icky majority should be allowed to tyrannize minorities. And when they're not making this argument, they continue with their question-begging "argument": The Goodridge articulation of civil versus religious marriage is wrong because we all know that the state doesn't create marriage. And how do they know this? Because studies show that marriage defenders are right about everything, of course!
A recent news event that nicely illustrates the distinction between civil and religious marriage, is the polygamy that occurred at the recently-raided Fundamentalist Latter Day Saints compound in Texas. This fundamentalist Mormon sect includes members who practice plural marriage. (A discussion as to the merits and demerits of polygamy are for another day.) As the practice of polygamy has long been banned in the US, you may be wondering how this religious sect is getting away with practicing it.
One, the offense is rarely prosecuted.
Two, part of the difficulty in prosecution lies in the fact that polygamists are rarely married under state law, even if they're considered married by their society and/or religion. Before we delve into what this means it should be noted that the phrase "polygamous marriage" is actually a bit misleading as those who engage in polygamy of the FLDS variety are not typically considered members of a giant group marriage. Rather, as fundamentalist Mormons aren't so much down with the woman-on-woman action, the man is considered to be married to each wife separately. The women are not considered married to each other but are, instead, "sister-wives." These multiple marriages are non-state-sanctioned marriages that are nonetheless recognized as marriages within that particular religion.
What this means is that a man (obviously) may legally marry one woman and have that marriage recognized by the state. To skirt the ban on polygamy, however, an already-married man may engage in a religious marriage ceremony with a different woman who will also be considered his "wife" in the eyes of his religion (but not in the eyes of the state).
In short, a fundamentalist Mormon man who engages in a religious marriage ceremony with one or more women is "religiously" married to these women. At the same time, each marriage in which he lacks a state-issued marriage license is not considered a civil marriage. And further, lacking a marriage license from the state, the state or federal government does not recognize these additional marriages for purposes of legal benefits, privileges, and rights.
In light of this very real example, we can see that the Goodridge distinction between civil and religious marriage is hardly "tortured" or "spurious." But more importantly, "marriage defenders" should concede this reality as it does not necessarily lead to the demise of their position.
See, what marriage "is" is up for debate. There exists no universal, standard definition of the institution with which everyone agrees. No single person, religion, or state is The Single Authority on what constitutes marriage. In light of that fact, debates around this issue should be framed around the policy reasons for excluding and including certain groups of people rather than endless bickering as to the definition of marriage.
We should at least be able to agree on that much.