Civil Marriage, Sanctified Marriage

On the opinion page of this morning’s San Francisco Chronicle is a piece by Douglas W. Kmiec and Shelley Ross Saxer, professors of law at Pepperdine, Ken Starr’s university, suggesting for the n’th time a solution to the gay marriage problem which they offer up as a compromise – gays can marry, they just need to give up the word.

Compromises are good when they are both fair and necessary. This one is neither.

To revisit this old argument one more time, Proposition 8 would never have happened if we had done what most civilized nations do. Start off by considering marriage a contract, acknowledge it is one of government’s duties to oversee contracts, and go from there. When you marry in Ouagadougou, you don’t get the Bishop of Rome’s signature on your marriage certificate; your Burkina Faso francs go to pay the fees at the local magistrate's office. Locally, marriage may involve grinding the grain and giving flour to the old women of the village (religion, in other words), but when you come to get your doctorate in divinity at Yale and want to bring your wife with you, the U.S. visa office wants the marriage license, not the flour.

Why do educated Americans – law professors yet – think we are the only people in the world to get married? That we are the only people to use the word marry? The Emperor of Japan marries the Empress in a religious ceremony, but when Mrs. Empress collects social security, it’s the state that checks her entitlement, not the goddess Amaterasu.

Try getting married in church in France or Germany or Mexico or Japan or China or just about any place where people live in the 21st century without having your marriage processed by state authorities, and see how married they consider you.

There is absolutely no justification to the claim that the church owns the word marriage, much less the concept. The notion existed before the church was invented; it will be around long after people forget how to play bingo.

Kmiec and Saxer are a breath of fresh air in the Prop. 8 camp, I must admit. At long last we have Prop. 8 voices that want to recognize church-state separation. But their insistence that the church has authority over the word marriage – never mind that nobody “owns” words – reminds me of the burglar who takes your TV and your VCR and when you catch him at it, suggests you compromise and let him keep the VCR. He may trick you into thinking you’re a cad for not wanting to compromise. But don’t lose sight of the fact it wasn’t his in the first place.

By all means let’s take the good part of Kmiec and Saxer. Separate church and state. Get Americans used to doing what they do in France. Marry in City Hall. Then, if you wish, bless that union in a church. Gussy it up any way you like, flowers, Cousin Gladys singing Ave Maria, the works. The license will say you were married by the city clerk, heaven will say you were married by Father Patrick down at St. Brigid’s. Everybody will be happy, and infelicitous word constructs like domestic partnership can go the way of the icebox and the Stanley steamer.

Consider K & S's alternative. We once again go our own way from the modern world, and use “marriage” to represent only those unions sanctified in a Christian church. We insist when a Spanish couple comes to New York that they erase the checkmark they put next to "married" and put one next to “in a domestic partnership” instead. First, of course, we have to ask them whether they were married in a church or by a civil authority. When they say they were married by a judge and are therefore esposo and esposa, we correct them and say, “Not here, you ain’t buster. Here you’re merely 'partners domésticos.'”

Good idea, Kmiec and Saxer, to have two separate institutions, each with their own ceremonies. We’ll call them civil marriage and sanctified marriage. The state will control the former via the IRS and the divorce courts and we will all participate in how the rules for this are made. The latter will be up to the angels and their agents on the ground and need not concern the rest of us.