Elizabth Scalia, who blogs as The Anchoress, recently reiterated a proposal she first made four years ago — one possible way past the political differences about the recognition of "gay marriage":
That approach appeals to my more libertarian impulses. It allows churches to set the standards they wish for Christian marriage and permits those who are unwilling to abide by those constraints to have a civil ceremony. And it might protect churches from legal interference with practices that some believe discriminatory — assuming the Constitution affords more protection to American churches than has proven to be the case in Canada, for instance. But it is not a sufficient reason for change if there are persuasive secular arguments to maintain the status of marriage as the uniting of a man and a woman. One of the unsigned editorials in the current National Review succinctly provides what seems to me a sound secular argument for restricting marriage to heterosexual couples.“...the churches should reconsider their roles in authenticating marriage. Governments issue birth certificates; churches issue baptismal certificates. Governments issue death certificates; churches pray the funerals. Governments issue divorces; Churches annul. Both work within their separate and necessary spheres, serving the corporeal and the spiritual. It is only in the issue of marriage that church and state have commingled authority. That should perhaps change, and soon. Let the government certify and the churches sanctify according to their rites and sacraments.”The idea is to create a clear differential between contract and covenant, between legalism/unions and theology/marriage. Our post-modern understanding of marriage may well need that differential in order to begin to re-appreciate that marriage is more than an expression of a mood that needn’t last. It also will afford some protections to the churches — for a little while, at least — against controversy, law suits and fines. .... [more]
.... All people, whatever their sexual orientation, have equal dignity, worth, and basic rights, by virtue of being human beings. We do not believe that this premise entails the conclusion that the marriage laws should be changed. The only good reason to have marriage laws in the first place—to have the state recognize a class of relationships called “marriage” out of all the possible strong bonds that adults can form—is to link erotic desire to the upbringing of the children it can produce."What possible governmental interest is there in encouraging long-term commitments with a sexual element, just as such?" In other words, surely there are any number of relationships that have no sexual component that are at least as worthy of governmental encouragement as is "gay marriage." Why should this relationship, which is differentiated from others only by a sexual element — every other element of relationship, emotional, economic, medical, inheritance, etc. — can exist in other contexts. So, why should this one be entitled to the word, "marriage"? Perhaps many such and varied relationships should be legally privileged without confusing them with marriage.
We have already gone too far, in both law and culture, in weakening the link between marriage and procreation. To break it altogether would make the institution of marriage unintelligible. What possible governmental interest is there in encouraging long-term commitments with a sexual element, just as such? What reason is there to exclude from recognition caring long-term relationships without such an element? (In previous editorials we have mentioned the case of two brothers who raise a child together following a family tragedy; other hypotheticals are easy to devise.)
Many people who support same-sex marriage sincerely believe that they are merely expanding an institution to a class of people who have been excluded from it rather than redefining it. But this view is simply mistaken. We will not make our society more civilized by detaching one of our central institutions from its civilizing task. (National Review, June 11, 2012, p. 16.)
Let Government Certify and Churches Sanctify – UPDATE