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"America has two great dominant strands of political thought - conservatism, which, at its very best, draws lines that should not be crossed; and progressivism, which, at its very best, breaks down barriers that should never have been erected." -- Bill Clinton, Dedication of the Clinton Presidential Library, November 2004

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Wednesday, December 03, 2003

 

Dershowitz to Government: Quit The Marriage Biz http://dean2004.blogspot.com/2003_11_30_pointswest_archive.html#107048941555405321

posted by Trammell at Wednesday, December 03, 2003 permalink View blog reactions
The GOP has already decided to make civil unions an issue in 2004 -- or actually they prefer "gay marriage" as an issue, as it's less popular. Why quibble with the tuth if you're a Republican?

Democrats can either wimp out or take Howard Dean's lead -- but like it or not, the die is cast. Notably, most of the Dems have followed Dean -- but our base seems to have some trouble climbing on board. That's one reason I'm currently on this crusade, as I really think the progressive blog community should open up further debate and reporting on civil unions. We need to hash it out, because eventually activists are going to need effective communication tools when talking with working-class Dems, union members, and minorities. Right now, I hear from many that they support Dean in spite of his stance on Civil Unions. However, even this has a useful tool at times. I recently heard a big Central Valley union organizer say simply: 'Listen, like it or not, you gotta give it to him, Dean stands for something and doesn't back down, and that is the only way we will win. It's simply the right thing to do." What's to argue? However, more nuance approaches will be required as well.

We must find tools and ways to state emphatically that civil unions are no threat to marriage, without getting to wrapped up in the real threats to marriage -- namely, divorce -- divorce typically caused by infidelity, substance abuse, or economic pressures. Ironically, the rate of dissolution for civil unions and domestic partnerships for gays and lesbians is likely to be far lower than the heterosexual 50% -- such unions are so charged and polarizing that few will enter in to them lightly. But as for the so-called threat to marriage, Allan Dershowitz actually suggests how civil unions could strengthen marriage itself:
To Fix Gay Dilemma, Government Should Quit the Marriage Business by Alan M. Dershowitz

The decision of the Massachusetts Supreme Judicial Court declaring that gays have a constitutional right to marry could become a powerful wedge issue in American politics. There is, however, a way to avoid that.

Those who oppose gay marriage believe deeply that marriage is sacred -- divine, a blessed sacrament between man and woman as ordained in the Bible. If they are right, then the entire concept of marriage has no place in our civil society, which recognizes the separation between the sacred and the secular, between church and state.

The state is, of course, concerned with the secular rights and responsibilities that are currently associated with the sacrament of marriage: the financial consequences of divorce, the custody of children, Social Security and hospital benefits, etc.

The solution is to unlink the religious institution of marriage -- as distinguished from the secular institution of civil union -- from the state. Under this proposal, any couple could register for civil union, recognized by the state, with all its rights and responsibilities.

Religious couples could then go to the church, synagogue, mosque or other sacred institution of their choice in order to be married. These religious institutions would have total decision-making authority over which marriages to recognize. Catholic churches would not recognize gay marriages. Orthodox Jewish synagogues would not recognize a marriage between a Jew and a non-Jew who did not wish to convert to Judaism. And those religious institutions that chose to recognize gay marriages could do so. It would be entirely a religious decision beyond the scope of the state.

Under this new arrangement, marriage would remain a sacrament, as ordained by the Bible and as interpreted by each individual church. No secular consequences would flow from marriage, only from civil union.

In this way, gay couples would win exactly the same rights as heterosexual couples in relationship to the state. They would still have to persuade individual churches of their point of view, but that is not the concern of the secular state.

Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.

Although this proposal may sound radical, it does not differ fundamentally -- except for labels -- from the situation that exists in many states today. Throughout the United States, couples have the option of being married civilly by going to town halls or to a justice of the peace and simply signing a marriage certificate. They also have the option of going to a church, synagogue or mosque and being married in a religious ceremony. So most Americans already have the choice between a sacrament and a secular agreement ratified by the state.

All that would be different would be the name we give the secular agreement. The word "marriage" would be reserved for those who chose the religious sacrament.

Though some traditionalists would be certain to balk at an explicit division between marriage and civil union, a majority of Americans already agree that gay couples should be allowed to join in secular unions with the rights and responsibilities that generally accompany marriage.

So let each couple decide whether they want to receive the sacrament of marriage or the secular status of civil union. And let the state get out of the business of determining who should receive holy sacraments.

Alan M. Dershowitz is a law professor at Harvard University.
Well, it's one suggestion, an interesting one. And so I request of the blogging community again, consider this as a front-burner issue -- it already is for the GOP, and we're not gonna win on this one by sticking our collective heads in the sand.

Crossposted in somewhat different form at Points West.


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