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Marriage equality can be achieved by separating church and state 

Wednesday, Jun 3 2009
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During the period last year when same-sex couples could get married in California, the Reverend D. Mark Wilson married a lesbian couple from San Diego. All seemed fine until Wilson, the coordinating pastor of Tapestry Ministries Disciples of Christ Church in Berkeley, filed the legal paperwork with the San Diego County recorder's office.

"They said I didn't fill out the form right, and they sent it back," Wilson says. "I ended up having to send it three different times."

At first, Wilson thought the recorder's office was hassling him because the couple is gay. But that wasn't it. "I had put down 'clergyperson.' That works in Detroit. It works in Alameda County. But not in San Diego. They ordered it returned. I crossed it out, and sent it back. But you're supposed to fill out a new form. I had to send it back again. In the meantime, the couple's waiting for a marriage license," said Wilson, who says he doesn't recall whether he ultimately used the term "reverend" or "pastor."

Clergyperson is "too general," a San Diego County clerk later explained to me. "We've had people put that and later found out they weren't clergy at all."

In other words, a government agency was demanding proof that Wilson had committed himself professionally to the Lord. Sounds like a major blurring of the lines between separation of church and state, yes? Why should Wilson, a Harvard Divinity School–trained Baptist minister, be ordered to demonstrate he's a sworn servant of God to qualify as an agent of the state?

"Most people don't think about how odd that is," notes the Reverend Jay Johnson, director of academic research at the Center for Lesbian and Gay Studies in Religion and Ministry at the Pacific School of Religion in Berkeley, who along with Wilson was among the clergy at City Hall last week protesting the California Supreme Court's decision to uphold Proposition 8's ban on state-sanctioned gay marriage.

"I would love it if we reserved the word 'marriage' for what the church does, and 'civil unions' for what the state does," Johnson says. "I wish we could start a movement involving all clergy to no longer sign marriage licenses of any kind, and only perform blessings after couples have had civil unions."

While many have denounced the Proposition 8 decision as sanctioning discrimination, few have asked why the state is in the marriage business in the first place.

But there is an under-the radar movement to take the fight for gay equality in an unexpected direction.

The Right Reverend Marc Handley Andrus, bishop of the Diocese of California of the Episcopal Church, which covers the Bay Area, has urged his parish priests to stop signing marriage certificates, and instead encourage straight and gay couples to first marry in a secular service and then get blessed in the church.

"Many, many people, including clergy, have said for years, 'Let's get the church out of doing the business of the state, and let the church be the church,'" Andrus says. "This way, no matter what a state or government wants to do or does not want to do, the church can offer the same support, the same community, the same love, to all couples, regardless of what state laws say."

Meanwhile, two Los Angeles students are poised to gather signatures for a ballot initiative that would make all Californians eligible only for domestic partnerships. The proposed measure calls for replacing the term "marriage" with "domestic partnership" in state laws, irrespective of sexual orientation. That means marrying couples would simply obtain a domestic partnership license, and then, if they wished, receive blessings at a ceremony in the church, synagogue, mosque, or other site. The church ceremony would have religious — but no legal — significance.

This solution would achieve gay and heterosexual equality and draw a bright line between church and state. Getting gay and religious leaders to buy into this solution — well, that's another matter.

Such a course would require a 180-degree pivot by California gay rights leaders. They have so far denounced the reasoning of the state Supreme Court's majority ruling, which said the term "marriage" is superfluous when speaking of civil rights, because California's same-sex domestic partnership laws allow homosexuals the "right to establish an officially recognized and protected family relationship and the guarantee of equal protection under the law." They have compared this logic to the segregation era's deplorable separate-but-equal doctrine.

But what if one took some of the judges' logic and rode it a little further around the track? One might arrive at a place where homosexuals are on a solid, equal footing with straight couples.

"As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment," the decision stated, asserting that the term "marriage" was all but meaningless as a matter of law and policy.

Justices Carol Corrigan, Marvin Baxter, and Ming Chin, meanwhile, argued in separate opinions that the court "lacked authority to alter and recast the traditional definition of marriage." They're not talking about the traditional barbershop or golf course definition of marriage. Only a few social institutions concern themselves with defining marriage; they include churches, synagogues and mosques. Government-employed judges, Corrigan, Baxter, and Chin seem to be saying, have no business meddling in church business.

Taken alongside the court's argument that the churchy term "marriage" is irrelevant to California law and policy, it's easy to conclude that getting the church and state out of each other's way when it comes to blessing couples would be a tiny, logical next step.

This is the way it's already done in countries such as France. "A priest or an imam, or whoever's responsible, they can't legally make a wedding or marriage if the person had not previously been married by a representative of the mayor in a city hall," said Jacques de Noray, spokesman for the French consulate in San Francisco. "Since the French Revolution, there is a clear separation between the state and church." The church ceremony, he adds, "doesn't have any legal significance."

Eliminating clerics' role as government marriage agents might seem at first glance like anathema to conservative pastors. Right-wing religious groups, after all, seek to "protect marriage" from an onslaught by gays.

But churches' role as proxy municipal marriage agencies vexes clergy, no matter what denomination or belief.

In the 2007 book The New Guidebook for Pastors, Baptist theology professor James Bryant describes his decision to marry two divorcées, despite his belief that Jesus said in Matthew 19 that divorce and remarriage constituted adultery. "I decided I would go ahead and marry them, acting as an agent of the state," he wrote. "But I felt guilty about my decision."

Bryant is describing an unnecessary conflict of interest, a vestige of an ancient time when the church ran the state, and vice versa. Ending the church-state confusion in California could be a simple matter.

An obvious step is to help get the proposed initiative eliminating the word "marriage" from the state's legal lexicon on the ballot. Additionally, places of worship could begin emulating Bishop Andrus' policy and ask couples to be married at City Hall before having a religious blessing ceremony.

Nothing meaningful would be lost in translation, Andrus says. "If you attended an Episcopal church's blessing of a marriage, you would not know you were not in a full marriage service," he says. "Hymns are sung. An exchange of rings takes place. Vows are said. It's a full service. It's simply not the legal marriage. The sacrament is in the relationship. Not in the legal form. That seems straightforward to me."

The Reverend Lea Brown, senior pastor of Metropolitan Community Church of San Francisco, can't join Andrus' movement because she performs mostly weddings for gay couples, who now can't have state-authorized marriages. But she says she'd be delighted if straight couples expressed solidarity by having separate secular and religious weddings.

"I think it's a brilliant idea," adds Jeff Bert, Metropolitan's associate pastor, as he marches through Civic Center with a mob of sign-waving protesters. "I've long felt that the state should get out of the marriage business."

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Matt Smith

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