A Republican Compromise On Gay Marriage

By Justin Gardner | Related entries in California, Law, Marriage, Religion, Sexuality, Supreme Court

Douglas W. Kmiec, a high profile lawyer in the Reagan and Poppy Bush administrations, lays out what he thinks is the solution to this gay marriage mess.

Essentially, get the government out of the business of religious marriage, and instead create civil unions for all that are legally recognized by the government. That way you have a clear separation of church and state.

Kmiec makes the point within the framework of California’s Prop 8 debacle and tells us what Schwarzenegger should do…

The governor has administrative authority to have regulations issued interpreting family law, and nothing in Prop. 8 precludes him from ensuring that homosexual and heterosexual couples are treated equally under state law so long as he stays clear of “marriage.” This could be accomplished by limiting the state of California prospectively to the issuance of civil unions for all couples, rather than marriage licenses, leaving marriage, which in origin is predominantly a religious concept and not the real business of the state, to religion.

To convince both sides to come to the table, the governor’s ruling should:

– Eliminate any doubt as to the validity of same-sex marriages undertaken between the time of the Supreme Court’s judgment and the effective date of Prop. 8. This is only fair because the proposition did not clearly state that it would be retroactive. People are entitled to have confidence in the law as it exists today without having to anticipate how it might change.

– Reaffirm the unfettered freedom of religions (not the state) to be either in favor or opposition to same-sex marriage as their doctrine teaches.

Folks, this is the way we can fix this and I hope if California pulls it off, other states will follow. It makes no sense why government is involved with religious marriage, and the sooner we move towards civil union as the legal framework, the better.


This entry was posted on Thursday, November 20th, 2008 and is filed under California, Law, Marriage, Religion, Sexuality, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

10 Responses to “A Republican Compromise On Gay Marriage”

  1. Jacob Says:

    As a gay man I’ve been arguing for this for the longest time. Seriously for years. I’m also pretty liberal. Gays don’t want to be married, we want to be equal. Marriage is a religious notion. Let them keep it. The government shouldn’t care anyways.

  2. Cy Says:

    Holy hell, a politician who a) understands the stakes involved and b) has a good, workable plan that will wind up with everyone getting what they want.

    Kmiec for SoS!

  3. About Time Says:

    I’ve thought this was the way it should go when it came up the first time. Everyone should have a civil union, unless officially “married” by a religious institution. Then it’s up to the institution to decide whether or not to perform same-sex marriages. Catholic churches won’t, Unitarians might.

    in the end, everyone is still gonna just say “we’re married” in 10 years no one will care. Maybe the politicians/judges will listen to someone like Kmiec. Too bad he’ll get blasted by the right for bringing it up.

    I hope it goes this way… all over the country.

  4. George Mauer Says:

    Umm, ok, but this has always been the glaringly obvious path. There is absolutely no one that this should be occurring to for the first time.

    And yet, though the proposal has certainly been made from the pro gay marriage camp it has never been accepted from by the anti’s. This is why I’ve maintain that there is no moral dilemma, no cross-cutting concerns, merely bigots and political opportunists.

  5. John K. Says:

    I think this is a great idea. It would never hold up, but just doing it for a little while would force heterosexual couples to admit that having the state recognize their marriages is important and that marriage is not just a religious issue.

  6. rob Says:

    This is a new idea how?

    It will not float, because it’s not really about gay marriage, it’s about homosexuality, but the cowards of both political stripes that are against gay marriage don’t have the balls to try and outlaw being gay for fear of being seen for what they really are:

    Bigots.

  7. Below The Beltway » Blog Archive » A Compromise On Gay Marriage Says:

    [...] Donklephant Related PostsThere’s Only One Solution To The Gay Marriage [...]

  8. Joshua Says:

    I agree that it all boils down to a debate over words: do we call the secular form of the institution “marriage” or a “civil union”? But words do matter. The trouble with a “civil union”, or any other term you can come up with other than “marriage”, is that, well, it’s not “marriage”. That name has just too much historical and cultural weight behind it for any other name not to have built-in second-class connotations. (And not just for gay people, but for non-religious straight people as well. My sister and brother-in-law were married by a JotP in a civil ceremony, no church involved. Are you or anyone else prepared to tell couples like them that they’re not really married, but merely “civil-unionized”, or “civilly united” or whatever? Come to think of it, there’s another reason why “civil unions” aren’t such a hot name – it just doesn’t trip off the tongue the way “marriage” does.)

  9. Brutalist Says:

    Great idea conceptually. I particularly like that it moves towards a ‘more perfect’ separation of church and state. But it won’t work. ‘Marriage’ is the word used to describe the institution everywhere and for all purposes, both religious and secular. If it were just a matter of California law, sure, you could potentially go through the whole legal code and get all mentions of ‘marriage’ changed to ‘civil union’ and work out all the kinks. But then you’d still have federal law to deal with. Would civil union couples be able to file a joint fed tax return and receive all the tax advantages reserved for the married? Would civil unions allow a foreign spouse immigration rights? Then you go on to foreign countries. Will they recognize civil unions as automatically as they do marriage? That’s an important question for expats like me. The proposal amounts to an awkward work-around to avoid a clear answer to the simple and basic question of the validity of gay couples’ marriages.

  10. kranky kritter Says:

    I basically support the form of this, because it helps people understand the distinction between the proper roles of government and churches . However, I don’t want anyone married by a JP to have to put up with some moron saying “you’re not really married.”

    Marriage applies BOTH to a holy sacrament and to a secular civil contract recognized by the law. If we want to call these holy marriage and unholy marriage, respectively, I guess that’s fine with me. :-)

    The point is that the government has no interest in what is holy or sacred. That’s best left up to churches, because everyone can join their own, and be “right” about what is holy. And the church has no interest in dictating what sorts of couples can enter into a common legal contractual agreement of a form that the government and the people have basically recognized as beneficial to the stability of our culture.

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