As promised, I’m returning to “Untying a civil knot,” where Rabbi Shammai Engelmayer argues that the state should have nothing to do with marriage.
His argument needs to be explained in detail before it can be refuted or critiqued. His fundamental assumption is that marriage is a religious act, and under the principle of the separation of church and state, it should therefore be separate from the state’s control.
He believes the state should instead issue a “civil commitment certificate.” This certificate would essentially be a contract that couples would sign where they would make certain legally binding promises regarding “the exclusivity of the union, how it is to be terminated and what the responsibilities of each party will be at termination and beyond.” Any couple who wants to make their marriage in a religious institution legally binding in the secular world would be obligated to get a civil commitment certificate.
The benefit of this solution is twofold, he argues: one, it frees civil courts from the expense, time and pain of determining divorce settlements because everyone who has a civil commitment certificate will essentially have a prenup; and two, it resolves the contentious issue of same-sex marriage because it would be illegal to bar two homosexual men or women from entering into a contract together.
This may smell of the “civil union” solution to same-sex marriage but Rabbi Engelmayer says it’s not; there is no “separate but equal” because not even heterosexual couples can get married by the state under his solution. Everyone would be subject to the same rules in the state’s eyes; only religious institutions would be able to decide, as they do know, who they do or don’t marry.
The radical simplicity of his solution is very appealing, but it has problems in application. Even if the state never uses the term marriage when issuing civil commitment certificates, couples who have received the certificates will not refer to themselves as “civilly committed.” They will refer to themselves as married.
If they, or other couples, feel that signing a civil commitment certificate is not sufficient enough to feel married, then they will seek out religious institutions that will formally recognize their commitment to each other. Since many religious institutions will refuse to recognize same-sex or interfaith marriages (or other rarer arrangements, like incestuous pairings or pairings between minors), there will likely develop a booming business in fake religions that are established solely for the purpose of marrying anyone who wants to get married. (Such organizations, like the Unified Life Church Monastery, already exist.) While this development may contribute to the competitive nature of America’s religious marketplace, it will also have the unintended consequence of cheapening traditional organized religion.
Looking at it from the other angle, what of couples who get married in a church or synagogue but are uninterested in signing a civil commitment certificate? Would their marriages be considered legally binding? My guess is that they would, based on the principle of oral contracts. Even if two members of a couple don’t sign any legally binding paperwork, I imagine a court is going to have a hard time saying that they didn’t make a legal commitment to each other when they recited their oaths and said, “I do.” Which means that if a religiously married, non-civilly committed couple gets a divorce, the courts will still have to decide on their settlement, the same way they do now.
From a political standpoint as well, I doubt that either the proponents or opponents of same-sex marriage will be satisfied with this solution. Proponents of same-sex marriage will argue that they aren’t merely looking for legal recognition of their partnership; they are looking for legal recognition of their marriage, which is a big difference. Opponents of same-sex marriage will not be happy because civil commitment will equalize heterosexual and homosexual couples under the eyes of the law, which is the last thing they want. Moreover, this solution will essentially make marriage less legally binding than civil commitment, which will cheapen the institution of marriage in everyone’s eyes.
A better solution, I think, is to expand current marriage licenses to include more explicit, detailed language on the obligations of both parties. There could exist a standard marriage license template while others could continue to draw up addendums to the marriage license, in the same way that some couples currently agree to prenuptial agreements.
But while the problem of courts having to adjudicate on messy divorce settlements can be resolved with some tweaking of the law, there is simply no solution to the same-sex marriage debate that won’t enrage the right or the left. In my opinion, the simplest and fairest solution (and yes, the most controversial one as well) is to legalize same-sex marriage completely, following the template that already exists for heterosexual marriages. As is their right, religious institutions that choose not to recognize or sanctify same-sex marriages could continue to do so. It’s not as clean as Engelmayer’s solution, but brave political solutions never are.
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