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All marriages are civil unions! Let me explain! When two people get married they are bound together by state law contractually to one another. This means if they separate or divorce there is a legal proceeding to divide assets, just as if one partner in a business is opting out their contractually binding obligations. The state does not make a marriage religiously sacred it simply obligates two people to one another on a contractual basis.
Even when people do not legally marry the state has rules for cohabiting couples in what use to be called “common law marriages.” Years of cohabitation in the eyes of many state courts constitute a binding contract. When cohabiting partners decide to go their separates ways the courts have intervened and separated property in the same legal way as those who are legally married. So cohabitation in a long term relationship is a civil union.
The religious dimension of marriage is distinct from a state’s contractual process. Religious communities asks couples to bind under the guidelines of doctrine and ethics that informs it. Marriage within a religious context a couples bind themselves within the sacred orders governing their faith.
In the United States, the state is supposed to be neutral to the concerns of faith, constitutionally speaking. The state cannot enforce a marriage to be sacred. Couples seeking out religious community are making a normative claim to live out their married under the claims of their faith.
So how did we get our understanding of marriage? Here’s a brief geneaology.
For a time in Europe marriages was done solely by the state. Couples then went to their local priest to to make sacred wedding vows.
As monarchies reach their apogee in Europe the state and the sacred order were tied together in a sacralized political order. This linkage compelled the state to make all marriages religious ones. Therefore the Catholic clergy when marrying people had two distinct functions—they obligated a couple contractually and religiously.
It was only in the 16th century when the Protestant Reformation occurred that thoughts about marriage were briefly theologically challenged. Did Protestant believe marriages were eternal and a sacrament as Catholic theology endorsed? The Protestant Reformation challenged the unity of Roman Catholic sacralized political order throughout Northwestern Europe.
The internecine battles for control of Europe between Protestants and Catholics shoved the theological debate regarding the doctrinal meaning of marriage aside. Under Protestant English monarch, the Tudors, the church remained the province of the sacralized state. The head of the Church of England was either the king or queen. Marriage in English legal theory conceived of as a sacred obligation enforced by common laws.
Quickly religious dissenters for pious reasons began to disagree with the idea of a state church, especially the Church of England. As some of these Protestant dissenters made their way into British North America looking for both economic opportunity and freedom of religious expression they brought with them the notion that the state should sanction marriage both legally and religiously.
It is from our British inheritance in American democracy that we view the sacredness of marriage and state law as being synonymously tied together. It is an irony that in American weddings the religious officiator acts by extension as an officer of the state–a proxy justice of the peace.
When the United States was constitutionally formed its influences were thoroughly Protestant. The framers of the U.S. Constitution wisely in my estimation attempted to neutralize the competition between religious groupings. They separated the national government from endorsing any one religious grouping over another.
In the 18th century they thought the U.S. in the main would be Protestant. They, however, left it to local municipalities and regions to determine marriages. The states settled this by using court officers and clergy in an interesting quasi-form of state sanctioned religious weddings. All marriages that religious clergy conduct are civil and religiously sanctioned, note the signing of marriage licenses by the officiating clergy.
This arrangement of marriage went largely unchallenged until recently when same sex couples began advocating for the right to be married.
It seems to me be perfectly within the democratic right of a religious community to prevent and even condemn same sex marriages. The normative dictates within a religiously constituted communities is different than a democratic state. The internal theological debates within religious communities will dictate whether these communities will sanction same sex marriages or not.
However religious communities within a democracy cannot dictate the standard of marriage for those who are not its adherents, just as they cannot dictate standards of marriage for other faiths.
In a democracy marriage as a civil union should be accorded to those adults who wish to be legally married. In my mind same sex couples are entitled to marriage in a democracy just as heterosexual couples who seek to bind their lives together as one.