Thursday, March 19, 2009

Take Me to the River, Civilly

Today I happened to reread this quotation from the New York Times in an earlier post:
As a Christian — he is a member of the United Church of Christ — Mr. Obama believes that marriage is a sacred union, a blessing from God, and one that is intended for a man and a woman exclusively, according to these supporters and Obama campaign advisers.
Something occurred to me. If marriage is a sacred union, then civil marriage is a violation of the First Amendment. And I thought of an analogy that may help to explain why this is so.

Imagine that there was such a thing as "civil baptism." You could go to City Hall, fill out a form, and swear an oath before the clerk to renounce Satan and all his works. The clerk would sprinkle some water on your head, pronounce you baptized, and hand you a baptismal certificate that would give you certain benefits under the law.* Anyone could get civil baptism -- Christians, Jews, Muslims, Hindus, atheists. No church would be bound to accept the baptismal certificate as proof of membership, and a church baptism wouldn't confer the legal benefits of civil baptism.

I think that if our government at any level were to try to institute civil baptism, there'd be an outcry from the churches as well as from secularists, though the objections might be muffled somewhat if its benefits and privileges were attractive enough. But the constitutional objections would be obvious: it would be an establishment of religion, prohibited by the First Amendment. Baptism is a "sacred union" between the believer and God/Christ. The state has no business establishing its own secular version of the rite. Many believers, I believe, would accept state intrusion in order to get the benefits, though they would also try to legislate their denominations' requirements and standards for baptism into the civil rite, declaring those requirements obvious and natural and traditional.

Why would an atheist or any other non-Christian submit to civil baptism, then? If the benefits were attractive and important enough, as they are for civil marriage (tax breaks, inheritance, legal kinship, etc.), that should be obvious: to get the privileges that the civil status confers. I can imagine the defenses one would hear of such an institution, as well: by getting baptized, people would show that they were serious, mature, committed citizens of our great nation, ready to shoulder their responsibilities by making this public renunciation of Satan. By contrast, those who reject civil baptism just want to get drunk, shake their booties, and blow kisses from Pride floats. Religious attempts to limit unbelievers' access to civil baptism would be denounced as an infringement of civil rights.

Of course, this analogy is (I hope) absurd; I offer it in the hope that it will provide some perspective on our current institutions of civil and religious marriage. I think that most Americans would reflexively reject the invention of a secular, legal version of baptism as a violation of the separation of church and state. And that's the point: why do we have a secular, legal version of a "sacred union" like marriage? If they want to convince me of their sincerity, those heterosexuals who, like Obama, believe that marriage is a sacred rite intended to bind together men and women only, should renounce their own civil marriages, get a civil but not religious divorce, and live together with benefit of clergy but without benefit of the state.

What about the children? What about inheritance and taxes and all the other legal benefits and protections that civil marriage provides? I'd follow the arguments of Nancy Polikoff in her book Beyond (Straight and Gay) Marriage (Beacon, 2008), and urge legal protections for all families, not just those constituted by sacred unions. She points out, for example, that
the Family and Medical Leave Act (FMLA) ... already protects children raised in a variety of family structures. Any covered employee with day-to-day responsibilities for the care and support of a child is entitled to FMLA leave. The regulations say that neither a biological nor a legal relationship to the child is required. In other words, this law allows either parent in a same-sex couple to take leave to care for their child. Neither marriage nor adoption is necessary [101-102].
Polikoff argues that until the 1980s American law, at the federal, state, and municipal levels, had already been moving toward a broader conception of family and coupledom that reflected people's real lives rather than the straitjacket of reactionary religion, and away from the supremacy of marriage. The rise of the religious right reversed that trend, and in general the mainstream gay movement has let the religious right set the terms of the debate since then, by embracing marriage as a goal and the norm for relationships instead of seeking to value and protect all families. Obama's (and so many others') confusion of civil and religious marriage shows that he too has surrendered to the worst kind of religious narrow-mindedness. Those who want to order their lives according to religious dogma should be allowed to do so -- that also follows from the First Amendment -- but they may not require others to follow them, least of all by legislating their dogmas.

I realize that the abolition of civil marriage is politically impossible, now or in the foreseeable future. But if we recognize the problems involved in legislating a religious rite, we might be able to lessen its sway over our society. Civil marriage isn't "sacred," and so needn't be restricted according to the requirements of the churches. Let the God-botherers concern themselves with "protecting marriage" (or baptism), and distribute social goods according to other criteria.

*I haven't imagined what the legal benefits would be; maybe my readers would care to work out the analogy to the legal benefits of civil marriage. If so, please let me know. Maybe I should look into countries that have established churches, and see what legal benefits membership in their churches confer -- probably things like the opportunity for state-supported pastoral livings -- but it's not really important for the purpose of the analogy.

(Image from here. At first glance it's cute, but think what it says about this couple that the symbols they chose for their sacred union were those of upscale consumerism: Gucci, D&G, Martha Stewart.)