In ruling that states can’t be forced to use taxpayer dollars to train students for the clergy, the Supreme Court last Wednesday upheld the separation of church and state. It was a heartening if muffled affirmation, coming as it did in the same week that the Second Coming took place at the cineplex and George W. Bush called for a constitutional amendment to “protect” marriage from queer infidels. (And I always thought that a leather necklace sporting a nine-inch nail meant “See you at the Spike on Saturday.”)
Throwing a bone to his base, Bush wasn’t just making a cynical election-year calculation. He was speaking as a true believer, taking some faith-based initiative to try to write discrimination into the Constitution. At least he has the courage of his convictions—unlike the waffling Democrats—and thus Bush revealed the key trouble at the heart of the issue: Marriage itself violates the establishment clause by defining matrimony according to particular religious beliefs.
Take the sacral out of the state, and what reason can it give for preferring hetero to homo couplings? Not a one. It can only cite, as the president did, “cultural, religious, and natural” traditions. But not all religions forbid same-sex nuptials. (I, for one, was hitched under a chuppah to another woman in 1992.) As Rabbi Arthur Waskow puts it, “God forbid—and I do mean God forbid!—that as a country we dig ourselves into a pit where Orthodox Jews and Southern Baptists are affirmed by the Constitution while Reform Jews and Episcopalians are ghettoized.” Besides, various religions restrict rites in other ways—my rabbi won’t perform interfaith marriages, for example. But should endogamy be the law of the land? Evangelical activists see gay marriage as a wedge issue for driving their theology into the Bill of Rights. The spirit of sharia law has been written into the new Afghan constitution, and apparently is making its way into the Iraqi one as well; Bush and his flock see no reason not to have their own version inscribed in ours.
The prospect of a “defense of marriage” amendment proves how urgently the state needs to sue the church for divorce. And there is one clear way to do it: Grant civil unions to all—including straights. If government must insist on offering special privileges to pledged pairs as a means of social engineering and sexual containment, let it provide them through a properly secular arrangement. Leave holy matrimony to the church, mosque, and synagogue. Folks can register at City Hall for legal recognition of their bond (and the tax benefits, inheritance rights, and all the rest that go with it). If they want their union blessed—or simply celebrated among family and friends in a secular bash—they have to go elsewhere.
That’s largely the system we’ve got now, of course: Practically speaking, the license and the benediction are issued from different offices. And when it comes to benefits, only the former counts. (That’s why I pay income tax on the health insurance my partner gets from the Voice.)
Nonetheless, even atheists, anti-clericals, the party-averse, and those in a Vegas-style hurry can’t just sign a paper. For the knot to be tied, they need to undergo what philosophers call a performative act—a deed that is committed through words. What actually makes them married is that someone in whom the state has vested authority pronounces them husband and wife. For the vast majority of Americans, that ritual affirmation occurs in a religious setting with a clergy member uttering the magic words. This melding of ecclesiastic and bureaucratic functions lies at the core of today’s marriage debate. The evangelical right seeks to blur the boundaries between church and state even more. Their arguments find easy assent from so many Americans because (apart from plain old homophobia) the realms of church and state have been merged in the marriage ceremony for so long, the fusion has come to seem organic.
But if queer studies has taught us anything, it is to show how what may look natural is indeed constructed—and to what ends. The institution of marriage has been in constant flux since its establishment as a form for promoting patriarchal control over property—understood to include women and children. Upon saying “I do,” women lost the rights to sign a contract or own property. Until 1967, the U.S. permitted states to ban interracial marriage. When Bush warned of the danger of “redefining” marriage, he sounded just like those who railed against restoring women’s individual rights in the late 19th century, or who rioted to oppose giving state sanction to lovers who crossed the color line. But because resistance to same-sex marriage is argued solely on the basis of scripture, our relationships will never be accorded equal protection under the law until those acting in the name of the Bible or Koran or Torah are not part of proclaiming them into legal being. The queer-marriage movement needs a divestment campaign: The only way we will win is if the state’s authority to pronounce is stripped from ministers, rabbis, imams, and priests. They of course would be able to declare “according to the laws of Moses” or “in the name of the Father, the Son, and the Holy Spirit,” but not on behalf of the state.
There’s a wider advantage to promoting civil unions for all as the simplest and most constitutionally sound solution to the vexations over queer vows. Once queer folks’ emotional need to see their love recognized is separated from the practical need for various economic and legal benefits (especially revolving around children), the community can look more clearly at what the state proffers to those civilly united—and why. Should a home with an amorous relationship at its center be any more deserving of the option to file taxes jointly than, say, a couple of single friends who have decided to set up a household together? Sure, I’d like to be rid of those extra income taxes, but I’d rather see our movement fighting for universal health care so nobody’s coverage depended on having a spouse with a job with insurance benefits.
As we win this the right way—and help lead America away from establishing fundamentalism as the law of the land by getting the state out of the business of holy matrimony—we can pick up the many issues that have been the bridesmaid for almost a decade now: the rising epidemic of violence against transgender youth and the homophobia faced by LGBT elders, to cite only two. Andrew Sullivan has infamously said that once gay marriage is won, the movement can pack up and go home. On the contrary.