Gay marriage - a political solution

Gay marriage is one of those contentious issues in which one side feels strongly, but has no philosophically trenchant argument for their position - but it conforms to tradition, so is widely heralded. Whereas a significant minority make a compelling philosophical argument based on equality of rights, but are seen as undermining the established order and spreading immorality!

So how to finesse it? In some ways, it is like the civil rights movement - rational ethicists know what we should do, but how to sway public opinion to do the right thing? (This is aside from the further parallel with laws against mixed-race marriages that were one of the many Jim Crow laws the civil rights movement overthrew. As a further aside, the ability to get people to do the right thing when it is unpopular is a fair preliminary definition of leadership).

Ultimately, most people do want to do good - or at least have others perceive them as good - and so this is an issue in which moral suasion is required; thus, moral philosophers have an immediate role to play, in presenting convincing arguments for gay marriage and refuting the lame counterarguments that are raised.

My friend Dan has blogged about an old idea of mine (which he independently raised) for solving the problem; I thought I would enlarge on our shared idea here, with specific suggestions for how a politician could successfully frame it in these contentious times. The short version: make marriage an exclusively religious ceremony, and make civil unions an exclusively governmental function; so civil unions are the only thing recognized by the state, and are required for the state to recognize a legal union. Of course, this already de facto occurs in the requirement of a 'wedding license' for a marriage to be valid. As a matter of equal rights, any couple - gay or straight - would be eligible for a civil union, whereas it would be up to individual churches whether or not they wanted to perform the private ceremony of marriage for a couple.

Here's the way a politico could frame it:

'I am in favor of upholding the constitution, which this Administration has done so much to harm and subvert. A key principle of our constitution is the separation of church and state. Religious tolerance is a principle that goes back to the Founding Fathers, and our government is supposed to make no law respecting the establishment of one religion, or its peculiar emphases, over all the people; while simultaneously allowing any such private religion to flourish, according to the convictions of its own adherents, without thereby becoming the law of the land.

Gay marriage is an issue in which the separation of church and state has failed. Some churches (such as the Southern Baptists) refuse to allow gay marriage; others (such as the Unitarian Universalists) wholeheartedly endorse it. As a sacred institution, I wholeheartedly endorse the ability of any denomination to decide for itself whether or not to allow gay marriage. No church should be forced to endorse or officiate a ritual it finds repellent. But the religious divide on this issue also means that to legislate either the acceptability or non-acceptability of gay marriage is immediately to offend one religion or another.

As marriage is primarily a sacred, religious institution, the solution is simple: Get government out of the marriage business. The state has an interest in furthering the integrity of families and encouraging the good of its citizens, especially children; it also has an abiding interest in guaranteeing the equality of all citizens under the law. Gay couples are allowed to be parents, and repeated studies have shown that having two committed parents in the home helps children. Hence, the state has an interest in providing for legal civil unions for all couples, with full legal rights - and responsibilities. The state in fact has an obligation to provide such opportunity for civil unions for all its citizens, under the duty of equal treatment under the law. Hence, the existing system of requiring a wedding license for legal union should be turned into a federal requirement of the availability of civil union for any couple, gay or straight, regardless of religious affiliation. It would then be an entirely private religious matter whether or not any particular church wished to supply an accompanying religious ceremony of marriage to commemorate and sanctify the legal bond. '

Or in slogan form: "Marriage for the the religious, civil unions for all"

Some polls indicate civil unions would already be somewhat popular, dependent on how the issue is framed; but (to my knowledge) no one in the mainstream discourse has framed it as above. Why can't Barack Obama or Hillary Clinton or John Edwards say this right now? Spread the word!