I actually am sympathetic to Professor Laycock's solution. It seems to me that the problems of marriage (at least in our legal tradition) were created by Henry VIII, when the ecclesiastical courts were made into an arm of the state. It makes sense to give marriage back to the churches and the private sphere, and let the state create some separate category. I am curious if anyone knows the history. How did marriage operate when the ecclesiastical courts were separate. Did the common law have some parallel notion of marriage with the ecclesiastical courts to handle stuff like the decent of land, etc. I remember reading someplace that in medieval law a marriage for purposes of the common law courts could be formed by simple agreement, but that a marriage for purposes of the ecclesiastical courts required the sacrament of marriage celebrated by the church. The differing court systems would then give differing remedies depending on what kind of marriage you had. Does anyone with more background on this, know if this is right?
Incidentally, I am still confused as to why civil unions present an establishment clause issue. In what sense is religion advanced or established merely because the government has a policy that makes some religious citizens happier? If making a distinction between civil unions and heterosexual marriage is an unconstitutional establishment, then it seems that heterosexual marriage itself would be an unconstitutional establishment.
Nate Oman
At 10:47 AM 12/5/2003 -0600, you wrote:
What seems to me more plausibly unconstitutional is the state and churches jointly administering marriage without distinguishing, either in institution or in vocabulary, the religious relationship (and sacrament, in some faiths) from the legal relationship. The better solution may be civil unions for everybody as the only state recognized relationship. Marriage would then be a wholly religious relationship.
And they would be independent of each other. You could enter into marriage without a civil union, or vice versa, or you could do both. And you could terminate a civil union without terminating the marriage, or vice versa, or you could do both.
At 10:38 AM 12/5/2003 -0600, you wrote:
The previously ignorable entanglement is becoming unpleasantly obvious as the move toward gay marriage progresses, especially as opponents continually express themselves in religious terms. (I note that Pres. Bush responded to the recent Massachusetts case by saying, Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage. )
Mark seems to be suggesting that it s not accommodation in the constitutionally permissible sense, but just in the political wisdom sense: better to proceed by steps, and allow some bit of solace to the losing side. I think Dean made his unguarded statement because he assumed the proponents of gay marriage ought to be happy enough, and meanwhile it was appropriate to show some respect for the feelings of those who might be quite angry with him for signing the law. I still can t see why it is not unconstitutional.
Ann
"Mark Graber" <[EMAIL PROTECTED]> wrote:It seems to me that if the only reason for creating the separate category of civil marriage is to attend to the feelings of ?pretty religious? people who ?felt that marriage was a religious institution,? that this is a violation of the Establishment Clause. Where is the secular purpose for restricting the the term marriage at the point in time when a legislature creates a civil union law? The assertion is that the separate category amounts to nothing at all, that gay couples receive all that matters, but how can the word marriage be both ?very important? to people who oppose gay marriage and nothing at all to people who want it?
- I think the accommodation problem is this. For better or (I think) worse, marriage and marriage law have historically entangled church and state in ways that are probably inconsistent with my notions of establishment in the abstract. Part of what civil unions do is attempt some disentangling. Still, given the very long history, efforts at complete disentanglement seem unwise for the foreseeable future. Hence, given people the choice of different forms of unions seems the best choice given past practice.
- Mark A. Graber
- >>> [EMAIL PROTECTED] 12/05/03 10:48AM >>>
- Mark raises the question of accommodation of religion, which my students also raised. My problem with that analysis is this: when have the courts accepted accommodation when it meant leaving the people to be accommodated in the position they were already in but burdening someone else as a way of pleasing them? I don?t think it is like, say, Amos, where you cut a swath around some traditional freedom as you create a new right for a group. It seems more like adopting Title VII with a right against discrimination but requiring different job titles for the people in groups that had previously been discriminated against so that the people who had the jobs before the law would not have to feel offended by the newly entitled persons having the same job. Is there really precedent for that approach to accommodation?
- (Sorry for the large font, which was apparently contagious. I hadn?t meant to send it out in that form.)
- Ann
- "Mark Graber" <[EMAIL PROTECTED]> wrote:
- Why not treat this as an historical accommodation of religion. We might imagine the state has three (four?) categories.
- 1. Marriage--man and woman only
- 2. Civil Union--any two people
- 3. Male Domestic partnership--two men only
- 4. Female Domestic partnership--two women only
- Legal rights are the same. Note, by the way, that heterosexual couples are allowed to choose to have a civil union rather than a marriage. Suppose a great many heterosexual couples choose to have a civil union in this scheme. Does that destroy marriage? Might some of us think our heterosexual marriages and families are weakened by state laws that do not permit homosexual friends and relatives in equally committed relationships the same
- legal standing (Don't ask me why the font just changed).
- Mark A. Graber
- >>> [EMAIL PROTECTED] 12/05/03 08:47AM >>>
- This is a question about the distinction between gay marriage and civil unions. The following exchange took place between Chris Matthews and Howard Dean on Hardball, December 1:
- MATTHEWS: I want to find out what the difference is between a civil marriage -- everybody wants a civil marriage. what's the difference between a civil union as described by Vermont law that you signed and a civil marriage? What's the difference?
- DEAN: The bill actually says marriage is between a man and a woman, but -- or and same-sex couples may enter into a civil union and, therefore, have all the same legal rights as people who are married, including hospitalization, insurance rights, inheritance rights. There is no inequality of rights in the state of Vermont. We chose not to do gay marriage because there were many people who felt that marriage was a religious institution, and churches ought to be able to make their own decisions about who gets married and who doesn't. But we felt it was really important to do equal rights under the law for every single American, and Vermont is the only state in the country where everybody has the same rights as everyone else.
- MATTHEWS: For all practical purposes, whether it's Vermont or New Mexico, is there any difference between civil union and civil marriage? For practical reasons.
- DEAN: Well, in terms of legal rights, no, there is not.
- MATTHEWS: So why are we quibbling over a name?
- DEAN: Because marriage is very important to a lot of people who are pretty religious.
(By the way, I retrieved this transcript from Lexis, and it showed that last sentence as spoken by Matthews, but rechecking Tivo, I?m certain it was Dean (which makes me worry about all of the times I?ve relied on transcripts I?ve found in Lexis).)
Ann
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Douglas Laycock
University of Texas Law School
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