FOUR WAYS TO ACHIEVE
SAME-SEX MARRIAGE

SYNOPSIS:
 
    First we will outline 25 rights and privileges
that are automatically available to married couples
that could be extended to same-sex couples
if they were recognized and registered in some way.

     Then we will project four possible ways
in which laws might be changed in the 21st century
to enable same-sex couples to have the same rights and privileges
now enjoyed by different-sex married couples.

     The Unitarian Universalist Association
already recognizes same-sex couples.
And many UU ministers conduct commitment or holy-union ceremonies
to solemnize these committed relationships.

OUTLINE:

     The next steps will be achieved thru some combination
of judicial and legislative action by the individual states.
This presentation will outline four possible ways
the right to marry will be won for same-sex couples:

1. Courts will overturn laws preventing same-sex marriage.

2. Legislators will repeal state laws
requiring marriage partners to be of different sexes.

3. Legislators will create new state laws
permitting domestic partnership alongside traditional marriage.

4. Legislators will repeal all marriage laws;
allowing relationships to be private and unregistered.

1. Courts will overturn laws preventing same-sex marriage.

     One possible pathway by which same-sex marriages
might become possible in the United States
is by courts overturning laws
that prevent people of the same sex from marrying each other.
If the state has no compelling interest in preventing same-sex marriages,
then the states can be ordered to issue licenses without discrimination.
The privacy and equal-protection provisions of the US Constitution
might include the right of persons of the same-sex to marry each other.

    In late 2003 the Massachusetts Superior Court
found that the state of Massachusetts has no provision in its constitution
to prevent same-sex couples from marrying.
Thus same-sex marriage licenses were issued in Massachusetts
beginning in May 2004.
There have been efforts to change the Massachusetts state constitution,
but any constitutional ban on same-sex marriage
would take a few years to achieve even if it were to be successful.
And if the Massachusetts constitution bans same-sex marriage,
what will happen to the thousands of same-sex couples
already married under Massachusetts law?

    Various other efforts are being made to change state constitutions
and the US Constitution to prohibit same-sex marriages.
In 2004, 13 states passed measures
defining marriage as between a man and a woman.
Such provisions will have to be repealed later
—or overturned by the courts.

    Constitutions usually protect minority rights
even if most of the people feel another way.
The US Constitution has not yet been used
to deny rights such as the freedom to marry.

2. Legislators will repeal state laws
requiring marriage partners to be of different sexes.

    Many state laws already define marriage
as a contract between one man and one woman.
And where state law does not have such provisions,
some people would like to see different-sex marriage
defined as the only kind of marriage licensed in that state.

    But the opposite move would also be possible:
Wherever marriage is defined as between one man and one woman,
that provision could simply be repealed.
Then adults of the same sex would be permitted to create marriage contracts
under the same law as different-sex couples.  

    Legislators will be under very strong pressure
from both sides of this debate.
But if several other states have already recognized same-sex marriage,
then it will be easier for the slower states to join the movement. 

3. Legislators will create new state laws
permitting domestic partnership alongside traditional marriage.

    As a compromise, some states have already created 
marriage-like contracts that are available to same-sex couples.
These are called "civil unions" in Vermont.
Other states might call them "domestic partnerships".  

    When the word "marriage" is not used,
some of the opponents are more willing to go along.
Usually these new licensed relationships
have all the same rights, privileges, & responsibilities
as found in traditional marriage contracts.  

    But some people (including judges) see that
"separate but equal" status still leaves the door open for discrimination.
And even if a different official label is given by the state,
most of the couples and their relatives
will still refer to the couple as "married".

4. Legislators will repeal all marriage laws;
allowing relationships to be private and unregistered.

    The states would no longer issue any marriage licenses.
All personal relationships would be private and individual,
and not defined or controlled by law.

    All laws that mention spouses, wife, husband, marriage, etc.
would have these references removed.
In many cases, the complete law would have to be repealed,
because it had no other purpose
than to give special rights and privileges to married people.

    Marriage and divorce would become private matters.
Laws against domestic violence would apply to everyone equally
—without regard to marital status.
This would allow married people to create their own relationships,
without having them defined in advance by the state legislature.

    If and when all levels of government become marriage-neutral,
marriage will revert to being a private contract,
perhaps with some religious meaning for some people.
 
   All laws would be cleansed of special privileges for married people.
For instance, married people would no longer get tax-benefits.
The income of each person would be taxed individually.  
Because many people would perceive this as a loss of rights,
such a change does not seem likely
any time in the next 100 years.

    But if marriage dies out as a social institution and pattern of relationship,
then it will be easier to erase special privileges for married people.
If there comes a time when only 10% of adults are legally married,
then it will be easy to eliminate special privileges for that minority.
All people would have the same rights
without regard to their personal relationships.

    Instead of licensing marriages,
the state could license parenthood, 
in order to protect children.

    Repealing all marriage laws is the least likely,
but even the discussion of such a proposal
will make all of us aware of how many laws we already have
that attempt to define and control interpersonal relationships.
   
    If and when the state governments and the federal government
no longer had any laws referring to marriage in any way,
then the churches could still have whatever rules they want about marriages.
We might need to be reminded that
before the middle ages, civil laws about marriage did not exist.
Marriage was controlled by the prevailing religions
and by the cultural practices of each culture and sub-culture.
Theoretically, this could happen again.  

    If marriage were removed from the control of the state,
then, of course, people could create their own relationships,
without depending on society to structure their love.
All couples—including same-sex couples—could do as they please.  
As the French say, "Love is the child of freedom."

AUTHOR:

    James Park is an existential philosopher and social critic.
He holds a Master of Divinity degree
from Union Theological Seminary in New York City.
He is the author of a dozen books.
This cyber-sermon was adapted from a work-in-progress,
which will be called Designer Marriage:
Write Your own Relationship Contract.
Much more about him will be discovered on his website:
An Existential Philosopher's Museum:
http://www.tc.umn.edu/~parkx032/

The views and opinions expressed in this page are strictly those of the page author.
The contents of this page have not been reviewed or approved by the University of Minnesota.