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Civil Union vs. Marriage: No Conflict

By Weeden Nichols
Opinion | February 27, 2011

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.


10 Comments

Weeden, you have covered the points very well. I wholeheartedly agree that the state should stay out of the religious definitions of morality and the religious community should only be represented by individual persons committment in the state government. No laws should be declared viable soley on the basis of any religious group's tenets.


The 14th Amendment makes every state in the union accountable to the notion of equal protection under the law. There should be no right that one adult American citizen has that other adult American citizens do not have. Each American should have the same right to marriage.


Darrell, the point is that, for purposes of legalities and rights, the only unions would be civil unions. "Marriage" would be a private matter between the couple and their religious community, if any. So there would be no equality of rights to marriage, as each relgious body would have its own criteria for eligibility. And public life would proceed on a level playing field. For the non-religious, the civil union would satisfy all necessary legal, sentimental, and scrapbook or album needs. The civil ceremony could be made a full-dress occasion, if that is what the principals require. I'm not really a cynic, but I could risk sounding like one when I say that a very high percentage of young women desiring church weddings simply want the photos.


Just curious, I've never actually been to a gay wedding or civil commitment ceremony. What are they like?


Brad, I think "civil commitment" is another category of event; however, I have attended civil weddings over which judges have presided. They can be as dignified and as festive as the participants want them to be.


Sure I have to. I used to work at a courthouse and a couple of times they rounded up people to be witnesses.

They were not same sex couples though.

So is this "civil union" just some official category that would be devoid of any ceremony? Does it all take place just on paper sort of like getting a drivers license?


Brad, I'm repeating what I described in my basic essay. Under the arrangement I described, all legal unions would be "civil unions." Even if a couple were married in a church, they would have to undergo a civil procedure for their union to have legal standing (as in France, for example). The idea is that those who object to same-sex "marriage" and who want "marriage" to be defined under law as "one man, one woman" could no longer object to the terms in legal use. One legal term without "emotional baggage" would apply to all unions, whether "one man, one woman" or same-sex. Then, if a particular church wanted to define marriage, under its criteria, rites and procedures, as "one man, one woman," no one would impose an alternative definition on that church. Should make everyone happy (won't, of course).

As to being "devoid of any ceremony" or "just on paper," no. There would be always some semblance of ceremony, and there could be a lot, depending on arrangements made and paid.


Weeden, I think what bothers me about your approach is you seem to be all legal and frankly quite cold about this. A marriage should be about declaring ones love to another person. It's not just a piece of paper. You call the 2 people who want to get married "principals", not lovebirds, bride and groom, or any other affectionate term. Then you go on to say " a very high percentage of young women desiring church weddings simply want the photos". Isnt that kind of demeaning to women? Does that apply to 2 young lesbians who want to get married? And who cares, it's their choice isnt it?

A marriage needs to be first and foremost a declaration of love to another and not just a piece of paper or "legal agreement between 2 principals". If that's not the goal I dont want it.


No, Brad, I think I'm being pretty compassionate to all concerned. I'm proposing a way for those offended to be not offended, and for all couples who want to make a life together to be on equal terms. I purposely avoided emotional language, quite appropriately, considering the task at hand, that of proposing an equitable and face-saving solution. This task required the setting aside of emotionalism, but the method does not translate to my being cold. You are entitled, of course, to you own opinion. I thought you might have been "putting me on" (or "winding me up" as the Brits would say), but I see you are sincere. I'm glad I have responded, granting you the benefit of the doubt, on the assumption that you have been sincere. Incidentally, I don't think I would employ the term "lovebirds" under any circumstances, but we all have our own idiosyncratic modes of expression.


My recollection may be in error, but hasn't Kansas rejected civil unions for same sex partners? I just don't see that changing. States rights are fine, and dandy, but who is there but the Federal government to step in to protect the rights of the individual? I'd extend the role of the Federal government here a bit further than Wedeen In a round about way by making marriage a function of the State, and allowing clerics to function as an agent of the State in regards to marriage the State has allowed itself to become an agent of the church.


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