Down with mar­riage

Los Angeles Times - - OPINION - By Ethan J. Leib Ethan J. Leib is a pro­fes­sor of law at Ford­ham Law School.

If you hap­pen to pay ex­tremely close at­ten­tion to in­ternecine de­bates within the LGBT com­mu­nity, you may know that not ev­ery­one lined up in fa­vor of pur­su­ing mar­riage equal­ity at the fed­eral level. Much of the de­bate over the last decade was about strat­egy — avoid­ing back­lash for pre­ma­ture de­mands, for in­stance. But there was also a sub­stan­tive dis­pute about whether it was wise to re­in­force fur­ther the bour­geois, re­li­gious and gen­der norms that mar­riage car­ries with it.

True, al­most all LGBT peo­ple thought that if the state was go­ing to of­fer mar­riage, same-sex cou­ples should have a right to it. Many ar­gued, how­ever, that mar­riage was the wrong front line in the bat­tle for equal­ity. The bat­tle should have been for the right to or­ga­nize one’s in­ti­mate life as one saw fit, with­out a thumb on the scales for such an old-fash­ioned in­sti­tu­tion.

In a twist, the mar­riage skep­tics may get another bite at the ap­ple — thanks to the suc­cess of the mar­riage equal­ity move­ment. Here’s how that could hap­pen: As­sum­ing the con­ven­tional wis­dom is cor­rect, the Supreme Court will rule this month in Oberge­fell vs. Hodges that be­cause the 14th Amend­ment guar­an­tees equal pro­tec­tion un­der the law, states can­not ban same-sex mar­riage. Some con­ser­va­tives, how­ever, will al­most cer­tainly balk, and will cast about for a so­lu­tion that would save them from out­right re­bel­lion against a court de­cree.

One idea al­ready in the air is to try to dis­en­tan­gle the awk­ward union be­tween mar­riage and the state.

In Alabama, a bill passed the Se­nate that would stop the gov­ern­ment from is­su­ing mar­riage li­censes or cer­tifi­cates — to any­one. In­stead, cou­ples who wanted to get mar­ried would just sign a le­gal con­tract and file it with a public of­fi­cial.

The Ok­la­homa House passed a sim­i­lar bill, spec­i­fy­ing that the state would no longer pro­vide li­censes for mar­riage. It would, how­ever, record cer­tifi­cates con­tracted be­fore or sol­em­nized by re­li­gious of­fi­cials or judges. Rep. Ted Ross, the au­thor of the bill, ac­knowl­edged he was re­spond­ing to the mar­riage equal­ity move­ment and ex­plained that “the point of my leg­is­la­tion is to take the state out of the process and leave mar­riage in the hands of the clergy.”

While it’s doubt­ful that Ross’ idea will catch on, states could make a go of it, legally speak­ing.

Notwith­stand­ing the plau­si­ble ar­gu­ment that the Supreme Court has, in prior de­ci­sions, cre­ated a fun­da­men­tal right to marry, states may con­tend that there can be no con­sti­tu­tional de­nial of equal pro­tec­tion to any per­son within its ju­ris­dic­tion if they of­fer mar­riage li­censes to no one, straight or gay.

Like the ju­ris­dic­tions that bailed on public ed­u­ca­tion and public pools when forced by the court to in­te­grate, states dis­tanc­ing them­selves from mar­riage will seem, to so­cial lib­er­als, like they’re on the wrong side of history.

Yet it may be time to ask again whether the mar­riage skep­tics didn’t, af­ter all, have an im­por­tant point to make.

What mar­riage skep­tics within the LGBT com­mu­nity wanted to achieve was a true sep­a­ra­tion of church and state, in which gov­ern­ment would only rec­og­nize sec­u­lar unions, free of gen­der scripts and mil­len­ni­ums of bag­gage.

Many wanted, es­sen­tially, to fol­low France, where civil mar­riage and re­li­gious mar­riage are wholly sep­a­rate in­sti­tu­tions, and the lat­ter have no le­gal sta­tus. (All cou­ples must have a civil cer­e­mony at a coun­cil of­fice; they can fol­low that up with a re­li­gious or sec­u­lar cel­e­bra­tion, or noth­ing at all.)

Some would have got­ten rid of the idea of mar­riage al­to­gether, in­sti­tut­ing some­thing closer to a “spe­cial friend” reg­istry as the only state in­sti­tu­tion of cou­pling.

Alabama and Ok­la­homa law­mak­ers aren’t try­ing to go quite so far, but — for the wrong rea­sons — they could be at the vanguard of scrub­bing top-down sup­port for an in­sti­tu­tion that con­tin­ues to af­firm stale gen­der roles, that con­tin­ues to keep the church close to the state and that con­tin­ues to en­cour­age con­sumerism through costly wed­ding cel­e­bra­tions.

Mar­riage skep­tics largely failed to pre­dict that a suc­cess­ful mar­riage equal­ity move­ment, cul­mi­nat­ing in a fa­vor­able de­ci­sion from the Supreme Court, would get them some­what closer to their goal. They may have to hold their noses when they see who it is that can help them dis-es­tab­lish mar­riage from the state. But in the mar­riage de­bate as else­where, pol­i­tics makes strange bed­fel­lows.

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