BY KENNETH R. CONKLIN, PH.D. — Hawaii’s new civil unions law should be only the first step toward a long-overdue restructuring of how marriage and civil union are defined. As a philosopher and a long-time civil rights activist, I have done a lot of thinking about this topic because it’s clearly related to my fundamental belief that government should treat all people equally under the law. Here’s a summary of my conclusions.
Marriage is a sacrament bringing souls together in the presence of God. That’s the domain of religion, and government should stay out of it. Any church should be able to marry same-gender or opposite-gender people according to whatever its theology might be. Sexuality is an important part of spirituality; therefore any church should be free to allow or prohibit same-gender marriages according to whatever its religious beliefs may be. Government should never certify any marriage, nor any divorce. Government should neither force any church to perform any marriage nor prohibit any church from performing any marriage, regardless of genders and even regardless of the number of spouses.
Civil union is a legal partnership certified and enforced by the government. The partners in a civil union have rights and responsibilities as determined by the government. If the government chooses to bestow benefits to partners in order to promote civil stability (such as tax breaks, insurance benefits, and inheritance rights), it can only bestow benefits to civil unions but not to marriage, on account of the need to preserve separation of church and state.
People can have either a marriage, or a civil union, or both. Having one does not necessarily mean having the other. To ensure the separation of church and state, the process for obtaining either a marriage or a civil union should be separate from the process for obtaining the other one. Thus, no document to apply for or certify one should also be used when applying for or certifying the other. Government should not delegate authority for certifying a civil union to any person who performs a marriage; just as churches should not delegate authority for performing a marriage to a government official who certifies a civil union. Thus, we should never hear a priest or other religious leader, while performing a marriage, utter the words “Now by the authority vested in me by the State of Hawaii, I do hereby pronounce you …”
Churches are free to allow same-gender marriages, or plural marriages, or to prohibit them, because that is a matter of religion, and government must not interfere. Federal and state governments are free to define civil union however they wish, subject to the requirements of the Constitution and the civil rights of the people. Churches have every right to express opinions about how government defines civil union, in the same way as any individual has freedom of expression. However, if churches receive exemption from paying taxes, then they must obey laws that restrict or prohibit tax-exempt organizations from engaging in political activity. A church may preach from the pulpit that same-gender sexual relations are immoral, and that parishioners are committing a sin if they vote for any candidate [unnamed] who favors same-gender civil unions; but a tax-exempt church should not be allowed to lobby the legislature or pay for newspaper advertisements opposing same-gender civil unions or particular political candidates.
Civil unions are partnership agreements sanctioned and enforced by government. It is therefore a matter of civil rights that government must allow same-gender partners to form a civil union on the same basis as opposite-gender partners. A civil union is essentially a business partnership with special rights and responsibilities defined by government. When business partners decide to file incorporation papers to create their partnership under the law, the government does not inquire into whether they are same or opposite gender, whether they have a sexual relationship or what sort of sexual relationship they might have. The same should be true of domestic partnership contracts, also known as civil unions.
Government should prepare a booklet describing the rights and responsibilities of civil union partners toward each other and toward the government, in plain English and with citations to the laws, perhaps similar to the “rules of the road” booklet which applicants for driver licenses are advised to read. Applicants for civil union should be required to pass an exam on the rights and responsibilities of civil union before they can get their certificate. It should be expected that civil unions are binding on the partners, who can rely on each other even in times of adversity. The reason government gives tax breaks and other benefits to civil union partners is because such partnerships provide social stability and, at least to some extent, remove from government the burden of providing financial support when one partner suffers physical or economic hardship. Therefore, if one or both partners apply to dissolve a civil union, then all the tax breaks given to the dissolving partner over the years should be required to be repaid.
Hawaii’s new civil unions law is a step in the right direction, but does not fulfill the expectation all people have for equal treatment. In terms of contractual relations, it fails to give the partners the federal benefits provided to married spouses such as insurance coverage and social security payments. In terms of spiritual union and community status, civil unions lack full-fledged prestige. Under Hawaii law civil union is second-class marriage, although the partners should be entitled to first-class status and rights. Civil rights lawsuits now underway might succeed in forcing states to allow full-fledged marriage to same-gender couples. But the best resolution would be to redefine both marriage and civil union as described above. That would disentangle church and state, removing the strongest objection by churches who feel their theology is violated by same-gender marriage. Let’s render unto Caesar that which is Caesar’s (civil union) and render unto God that which is God’s (marriage).
This has been a summary of a more detailed analysis I wrote about 16 months ago. Please see https://tinyurl.com/l8qas2