The Establishment Clause Dodge (Yet Again)

March 9th, 2004  |  Published in Uncategorized

Pleasant to get a ping from b!X this afternoon that directed me to one of his latest entries on the queer marriage issue as it’s playing out in Oregon. The entry centered around an opinion released by the State of Oregon Legislative Counsel, which asserts that as far as Oregon’s constitution is concerned, the state can’t deny same-sex couples marriage licenses.

It goes one step further and points out that creating two categories of marriage (one we call “marriage” and reserve for straight people and one we call “civil unions” and provide as the only means by which same-sex couples can be “wed’) is not a suitable alternative: “Providing same-sex couples with a separate civil contract, such as civil union, is not sufficient; separate is not equal.”

The last third of b!X’s post quotes the part that really made me perk up:

There may also be another alternative: Instead of giving opposite-sex couples a “marriage license” and same-sex couples a “civil union license,” the Legislative Assembly could authorize clerks to issue “commitment licenses” (or whatever designation the Legislative Assembly chooses) to all couples. This system would leave “marriage” to religious organizations, with the state authorizing the issuance of the license and the religious organization performing the “marriage.” Each religious organization could then decide for itself whether to perform “marriage” ceremonies for same-sex couples.

As b!X notes:

Making the distinction — as, we’re told France and Mexico have already done — would not only be the more proper thing to do from a church/state separation point of view, it would serve to rid the debate of the distraction of what we’ll call semantical overlap. It would also help reveal just who it is that truly is opposed to same-sex unions of any kind, regardless of whether they are at all touched by a “religious” term.)

It’s good to see the state Legislative Counsel throwing this out for discussion. I’m not really into the declaration of one of Multnomah County’s recent newlyweds, who said the county is merely “riding the tide of history,” because faith in inevitable progress (which always seems to mean “things going your way”) is just another way of tacking “and a pony” onto your program and waiting around to get your heart broken. Rather than banking on historical inevitability, we need to be framing this debate in a way that’s fair and equitable, and in a way that helps the benighted souls who think their church doors are going to be forced open understand that this is a secular policy issue, not one that will impact their right to worship as they see fit.

I promise to harp on this as assorted policy bodies, lawyers, advocates, and politicians throw the idea around.

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