ELLIS, Kan. - The marriage controversy is not new - not simply a controversy, but a battle. The issue is framed in such an "either-or" way that the public is tricked into taking positions that are neither kind nor logical. A commentator on NPR mentioned the other night that President Obama could see a case for a strong civil union arrangement for same-sex partners, but was having trouble coming to terms with the idea of same-sex marriages. So, even the president has fallen for the "straw man" tactic.
The solution has been available all the time the battle here in the United States has been raging. Civil governments should not be in the marriage business at all. Marriage is a religious matter. If a church, or denomination, or other religious body finds that applicants meet that religious body's criteria for marriage, then let that religious body marry the applicants according to its own rites and procedures. Marriage, as such, should have a moral, religious, even sentimental standing, but not a legal standing.
Governments, on the other hand, according to their own laws and procedures, should have the authority and responsibility to bind civil unions. Civil unions would have legal standing, but would not purport to fulfill the moral, religious, or sentimental needs fulfilled by marriage.
Most couples would be blessed by marriage and certified by the state (as in France, for example), but one would not necessarily require the other. If a same-sex couple entered into a civil union at the county courthouse, they would be entitled to the rights and subject to the obligations of a legal union. If their religious body saw fit to marry them, so be it. If their church or religious body did not recognize or perform same-sex marriages, the couple would have the choice of "living in sin" as seen by their church, or seeking a faith community more compatible with their understandings and needs.
The area of potentially strong agreement between liberals and conservatives is this proposition: Clergy should not be agents of the state.
Making the clergy agents of the state imposes a conflict of interest. Making clergy agents of the state is not even in keeping with American core values, or at least those core values that have prevailed since Independence. The practice has been going on so long that no one questions it. The practice probably derives from colonial times when most of the colonies were religious undertakings, in which the individual's religious and civil responsibilities were identical, because the religion was the government, and no citizen within the colony had any other. True, there are those among us who would like the government to be an agent of the Church, but no one really wants the Church to be the agent of the government. Presumably, clergy answer to a higher authority than the government. Leave the clergy out of the business of legally certifying anything to the state. Get the flag out of the pulpit and let the pastor return to answering the pastoral call. Let the judge or justice-of-the-peace take care of the legalities.
Practical considerations: According to my proposal, marriages and civil unions would remain among the matters reserved to the states (no point in rushing to make everything a federal matter). Change would be in fits and starts. Some states would persist in defining "marriage" and controlling it. In no case would existing unions or marriages be in jeopardy. Marriages previously presided over by clergy (and thus sanctified as marriage), and also certified legally by clergy, would be legally-recognized unions and also marriages by religious definition. After the date when clergy cease to be agents of the state in certifying legal unions, those who desire both marriage by the standards of a religious body, and a legal union, would have to undertake both. The only way the federal government would have a role would be to guarantee that recalcitrant states recognize all unions contracted in other states. The federal government would also have an interest where legal unions have an impact on relationships by individuals with the federal government, such as in the filing of federal taxes, applying for federal employment family benefits, or participating in military service.
The point is that we have unnecessarily conflated the concepts of religious contracts and legal contracts. We can change that, to the benefit of all concerned.