This is where the gay marriage battle should be fought
The New York Times today has a headline story that a group of conservative Episcopalian bishops is breaking away from the mainstream church because of objections to the church’s stand on gay marriage:
Conservatives disaffected from the Episcopal Church are expected to declare on Wednesday that they are founding their own rival Anglican province in North America, the biggest challenge yet to the authority of the church in a five-year battle over the ordination of an openly gay bishop.
I am delighted by this story, not because I am siding with one Episcopalian tradition or another in this debate, but because I think it demonstrates perfectly where the battle over gay marriage should be fought — in religious organizations. Because religion in America is a marketplace, the different denominations can battle the matter out and, if they cannot reach agreement, they can create splinter organizations reflecting doctrinal differences. Parishioners will follow according to their beliefs. That’s certainly what the Founders envisioned when they wrote a Constitution that disallows state involvement in religious affairs.
What we’ll eventually see are religious organizations that believe their source documents (the Old Testament, the New Testament, the Koran, etc.) authorize gay marriage, and therefore that sanction such marriages; religious organizations that believe those same source documents do not authorize gay marriage, and that therefore refuse to sanction such marriages; and religious organizations that recognize that the source documents do not countenance gay marriage, but nevertheless believe that their religion properly allows for the uniting of two loving hearts.
These last-mentioned organizations will create new traditions that are some sort of joining ceremony with a religious imprimatur. People will then select their churches, mosques, synagogues, temples, etc. according to their clearly stated stance on gay marriage (amongst other doctrinal issues), which is the way in should be in a nation committed to freedom of religion.
As for the state, I’m becoming increasingly convinced that it should get out of the “marriage” business altogether. This does not mean that the state should not sanction partnerships. It is to the state’s benefit to have people join in stable relationships and start families. The state will therefore want to continue encouraging couples to join up in permanent relationships — and the encouragement resides in the financial incentives (tax benefits) and life conveniences (intestacy statutes, hospital visits, etc), that automatically flow from a state-recognized relationship.
The state should therefore continue to issue licenses, but these licenses should all be for “civil” unions. After all, the state is a “civil” entity, and should not be going beyond those parameters.
Having this clear distinction between religiously sanctioned unions (of whatever nature the religion chooses) and state sanctioned unions (which have to provide concrete benefits to the state in terms of societal stability and population maintenance) should prevent entirely a couple of problems. The first problem is attacks on religion. A perfect example is the vicious attacks now being launched against the Mormon Church, which encouraged its members to put their money behind traditional marriage.
The second problem right now with the emphasis on changing state definitions of marriage, rather than religious definitions, is the risk that there will be direct challenges between church and state. A lawyer I know assured me that this couldn’t happen because, for example, the Catholic church does not get sued because it opposes abortion. That was facile reasoning. While abortions may be a civil right, the Catholic church does not provide abortions. What the Catholic church provides is communion, which is not a civil right, so the church can withhold it at will. What happens, though, when the church provides something which is both a core doctrinal belief (marriage) and a state right (marriage)? It’s a head-on collision, and I can guarantee you that the courts will get involved and that some activist judge will state that the Catholic Church is constitutionally required to marry gay couples.