Marriage equality can be achieved by separating church and state

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.

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