"GAY MARRIAGE" (more precisely, "GLBT MARRIAGE") OR "CIVIL UNIONS"?
[12-29-03, updated on 1-7-04]

It appears that our Issues Analyst, Gene TeSelle, has never met an issue he didn't at least like to think about. Here are two reflections, one on an issue - same-sex marriage - that is of direct concern to the PC(USA), the other - legislative redistricting in Texas and Colorado - an issue that is a matter of "good citizenship" for all of us.

He offers these points with the hope they will generate some good conversation, and perhaps ideas for actions to be suggested at the 2004 General Assembly.

If you have thoughts, please send a note and we'll share it here!

After the court decisions in Canada and then in the Massachusetts Supreme Court that "equal protection under the law" means that same-sex partnerships should have the same rights as heterosexual marriages, there has been a lot of public debate.

While some regard these decisions as absurd, others point out that equal protection must be taken seriously; indeed, many changes in the law that we now take for granted -- including segregation-era laws that prohibited interracial marriages -- are the result of earlier court decisions or legislative debates.

While religious conservatives rail at Disney and the many other corporations that have given the same benefits to domestic partners as to married couples, others point out that this may be one more way the society is ahead of the church. That was certainly true during the debate over abolition of slavery, when most of the denominations (even those in the North) were cowardly, a few broke away and took a strong abolitionist position, and many abolitionists absented themselves from the churches out of Christian conviction. It is worth remembering that the churches can be the last refuge of those who cannot endure change.

Semantics -- and More

A major issue, legally as well as emotively, concerns language. Marriage has traditionally meant a union between "one man and one woman," or, in our divorce-prone society with the possibility of serial marriages, "a man and a woman." State supreme courts in Vermont and then Massachusetts declared that the same rights cannot be denied to same-sex couples. What language are the laws to use?

The dilemma is that marriage has referred to heterosexual unions, and "same-sex marriage" seems like too drastic a change in usage. The alternative is "civil union," and there are many who regard this as a satisfactory term as long as the same rights are involved and there is equal protection under the law. And yet there are many advocates for the GLBT cause who insist on "marriage" and regard "civil union" as a badge of dishonor, connoting second-class citizenship.

One approach, which looks too much like a Solomonic judgment, is the one set forth by Alan Dershowitz (Los Angeles Times, December 3, 2003). Taking perhaps too seriously the notion that marriage is a sacrament, he thinks we should let religious institutions have the term "marriage" and deal with it as they see fit; then the state can simply deal with the secular realities, using the term "civil union."

A more realistic proposal came from a writer here in Nashville, Eric Youngquist. As an alternative to political struggles and debates over terminology, he proposed (Tennessean, December 4, 2003) a uniform contract for same-sex unions that could be adopted by the states, giving rights equal to those that spouses normally have and spelling out the procedure for health care decisions, property rights, dissolution, and the many other kinds of issues that can arise.

Conservatives have been claiming that any recognition of same-sex unions would "weaken marriage" - as though it has not been weakened by a whole host of cultural and commercial factors over the past fifty years. [Britney Spears' recent, brief venture in wedded bliss comes to your Webweaver's mind.] It would be more likely to strengthen marriage, allowing GLBT persons to make the same commitments to each other that heterosexual couples have been able to make for centuries. But of course conservatives, who are in the habit of depicting the "homosexual lifestyle" as promiscuous and irresponsible, would find one of their arguments deflated.

But the basic point, as John Swomley has said, is that these court decisions do not require rabbis, priests, or ministers to perform same-sex unions. What they do is allow two people who love each other to make a life-long commitment that involves legal rights and guarantees.

A dilemma for politicians

In 2000 the Vermont legislature passed, and then-Governor Howard Dean signed, a law permitting "civil unions" for same-sex couples with substantially the same rights as marriages but with a different name. The supreme court of Massachusetts seems to have said that "marriage" must be permitted to same-sex couples. And this is what has caused much of the consternation, often exacerbated by confusion about what is being discussed.

The politicians had to react -- and quickly. Most conservatives opposed rights to either same-sex marriage or civil unions. Among Democratic primary candidates for President there was a mixed response. Those who were deemed least likely to win -- Carol Moseley-Braun, Dennis Kucinich, and Al Sharpton -- favored marriage. Others took the middle ground: Wesley Clark, Dick Gephardt, and John Kerry supported civil unions rather than same-sex marriage. Howard Dean, John Edwards, and Joe Lieberman said it should be left to the states to approve civil unions.

It wasn't only the Democrats who had dilemmas, however.

Republicans have been promoting an amendment to the Constitution that would define marriage as "the union of a man and a woman" and declare that nothing in any constitution or law "shall be construed to require that marital status or the legal incidents thereof shall be conferred upon unmarried couples or groups." The operative word is "require," and this amendment seems to let the states take their own course in this matter. President Bush, in backing this amendment on December 16, seemed to leave an opening for states rights. "If necessary, I will support a constitutional amendment which would make marriage between a man and a woman, codify that," he said. Then he went on, "The position of this administration is that whatever legal arrangements people want to make, they're allowed to make, so long as it's embraced by the state or at the state level."

Some Republicans and conservatives have been talking about rewriting this proposed amendment to ban any form of civil union as well. But political analysts point out that they would alienate a large portion of the electorate. Recent polls show that, while a slight majority opposes gay marriage, only a third of of this group supports a Constitutional amendment. If civil unions were also prohibited, Republicans would find an even larger portion of the voters against them.

Most political realists are favoring the term "civil union" rather than "marriage" for a same-sex relationship. It would make legalization much more feasible politically, since the emotional baggage surrounding marriage would not be involved. Those who favor civil recognition of same-sex relationships feel that it would be easier to round up votes for civil unions. And conservative strategists seem to have the same political, concentrating their fire on "same-sex marriage" and hoping that the electorate will not pay close attention to the alternative language.

What is the Presbyterian Church to say?

The PC(USA) has already taken positions on this issue.

In 1996 the General Assembly affirmed the historic definition of marriage as "a civil contract between a man and a woman," but recognized that committed same-sex partners seek equal rights and seemed to permit the Stated Clerk to support litigation and legislation giving civil rights to same-sex partners.

In 2002 the General Assembly reaffirmed the position of the 1978 Assembly, which opposed discriminatory laws as well as all forms of stereotyping and harassment.

In 1994-95 an amendment to the Book of Order that would have prohibited any blessing of same-sex unions failed to be affirmed in the presbyteries.

The Directory for Worship declares,

Marriage is a gift God has given to all humankind for the well-being of the entire human family. Marriage is a civil contract between a woman and a man. For Christians marriage is a covenant through which a man and a woman are called to live out together before God their lives of discipleship (W-4.9001).

This is in keeping with the Reformation view that marriage is a civil institution, not a sacrament. Therefore the Directory for Worship provides for "a service of worship recognizing a civil marriage and confirming it in the community of faith" (W-4.9006).

If more states than Vermont and Massachusetts should enact provisions for civil unions, the language of these sections of the Directory for Worship would have to be amended. In the meantime, a decision in 2000 by the Permanent Judicial Commission of the General Assembly permitted the blessing of same-sex unions as long as they are not confused with wedding ceremonies.