Los Angeles Times

Down with marriage

- 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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