A Common Sense Solution That
Respects The Rights & Feelings Of All

Is there any way to keep everyone equal and happy? We think so.

For those wanting to "cut to the chase" and not read the justifications and logic that resulted in our solution, click here.

Consider the following -

Bruce R. McConkie, in his Doctrinal New Testament Commentary, gives us doctrinal support for the Separation of Church and State. He discusses -

Matthew 22:15-22, Mark 12:13-17 and Luke 20:22-26. He states -

"How better could the Master Teacher proclaim his doctrine of separation of church and state than he did here in avoiding the trap of the Pharisees and Herodians?
These scheming and hypocritical "spies" offered Jesus these two alternatives as possible answers to their diabolically clever question: (1) Say, 'Yes, pay the hated poll tax to Rome as the law already requires,' which answer would cause the Pharisees to inflame the people against him. Or: (2) Say, as the sect of Zealots taught, 'No, Israel is a theocracy; God only is her King; pay no tribute to a foreign power,' in which event the Herodians would have delivered him "unto the power and authority of the governor," charging him with sedition and rebellion.
But from his lips instead came the decree: 'Render unto God and Caesar their own.' That is, in this present world where wicked men will not repent and come unto the fulness of the Lord's perfect order of government, there must be two separate powers "ecclesiastical and civil" the one supreme in spiritual matters, the other in temporal. Neither power can dictate to the other. And men are subject to them both."
(Bruce R. McConkie, Doctrinal New Testament Commentary, 3 vols.,[Salt Lake City: Bookcraft], 1:600,601.)

The civil and legal rights and benefits pertaining to marriage are clearly the domain of government (Caesar). We know that marriage has a legal/secular component because even clergy state that they perform marriages "by the power vested in me by the state of...I pronounce you husband and wife". We also know that people can't go to their clergyman to obtain a legal divorce. These aspects of marriage are clearly the domain of Caesar thereby refuting the idea that marriage is solely the domain of the church.

Subjective religious doctrines have no right to trespass on the realm of Caesar to infringe upon the equal secular and civil rights and liberties of others. 1 Cor. 10:29 and D&C 134:4 confirm this.

On the other hand, Caesar has no business or right to trespass on the realm of God. It has no right to dictate religious teachings on people. D&C 134:4 and subsequent verses confirm this. Because of this, Caesar has no right to regulate churches' teachings regarding marriage. One church may allow gays to have a wedding ceremony and refer to them as married while other churches won't perform such ceremonies and would not consider a same-sex couple as being married. Individuals can make a distinction, but since our government is secular and has no official religious teachings, it must treat all equally. Since a church cannot force Caesar to recognize the marriage ceremonies it performs, government must adopt laws about marriage that are equitable to all.

As with any other secular contract, Caesar tells us who qualifies for the benefits and obligations marriage provides. Only objective qualifications and restrictions should be applied to maximize freedom. The only objective restriction is age. If an 18 y/o is old enough to enter into other secular contracts, they are old enough to enter into a marriage contract. For persons under 18, parental permission must be obtained. What the minimum age should be for minors (some states say 16, some 14, etc...) should be up to state legislatures or to a vote of the people.

Some people would like other subjective restrictions such as forbidding closely related people from marrying (1st cousins, siblings, etc..). The only objective reason for this would be to prevent genetic abnormalities in any potential children. The problem with this is that other people with communicable diseases are allowed to marry. Individuals with Cystic Fibrosis, Sickle-Cell Anemia, Tay-Sachs disease, AIDS, etc.. are all allowed to marry yet carry a FAR FAR greater chance of passing on serious genetic diseases than couples who are blood relatives do to their children. Another example is Down Syndrome. This can be passed on genetically or frequently via older mothers giving birth. There is no law preventing older but fertile women from marrying. The only way to be consistent on this is either to allow all people of legal age to marry or allow only those who are infertile and/or sterilized or are disease free and only women under 35 or older than 55 to minimize the chances for a Down Syndrome offspring.

Same-sex restrictions are also subjective in that there is no objective harm to anyone by them marrying. In other essays on this site, we've discussed objections such as gays' inability to produce children which are genetically related to each partner. The same is true for many straight couples who then turn to sperm or egg donation to produce offspring. Some feel that gays who do not want to have children shouldn't be allowed to marry since marriage is about child bearing and rearing. The same though applies to many straight couples who are intentionally childless or where one or both are either infertile or have been sterilized.

The bottom line on restricting people of legal age from marrying is either based on subjective feelings and/or applied inconsistently. Neither of those situations are acceptable in a country founded on equality and individual liberty.

With the above in mind, the only sensible thing to do is to have government issue "Civil Unions" to ALL couples with the only restriction being that the parties are of legal age to enter into civil contracts or be older than the state's minimum age for marriage and have parental permission. This keeps the secular integrity of government by not allowing subjective religiously based restrictions to infringe upon others. Couples can then go to their churches if they want and receive a religious marriage ceremony (temple sealing, etc..). Such ceremonies would not have the force of law though. Only a government issued certificate of Civil Union would be legally recognized. Government, as stated above, would have no right to dictate the content of the religious ceremonies. This solution would treat everyone equally and keep Church and State separated.

This idea is frequently raised in online discussions of Civil Same-Sex Marriage. It recently got a boost from two law school professors. Professor Douglas W. Kmiec holds the endowed chair in constitutional law at Pepperdine Law School after serving several years as dean and St. Thomas More Professor of Law at The Catholic University of America in Washington, D.C. He also served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice). He is joined by Professor Shelley Ross Saxer, also of the Pepperdine Law School, in writing an article in the SFGate about this solution. They looked at it from a religious perspective since their respective legal emphasis on religion is a major theme in their work.

Four days later, an editorial in the Los Angeles Times concurred that having the state only provide "Civil Unions" to both gay and straight couples would solve the issue in a fair and equitable manner. The editorial had one particular paragraph that will easily show the double standard of many Prop. 8 supporters. It said -

 

The most adamant opponents almost certainly would be the supporters of Proposition 8, the same people who argue that same-sex couples already have all the benefits of marriage through the state's civil union laws and are just quibbling about a label. Chances are that they won't see things the same way when it comes to changing the name of their own legal relationships. 

How many times have we heard Prop. 8 supporters claim that Prop. 8 didn't harm gay couples in any way since though their Civil Unions they retain the exact same rights of married couples? Now that the shoe is on the other foot, how do you think they'll react? Will they remain true to their assertions or will they back-pedal? We're guessing that the overwhelming majority will back-pedal so fast that it could power several wind turbines.

National Review Magazine, a few days later, published an opposing article in response to Professor Kmiec's SFGate article. The following from the article is a typical statement Prop. 8 supporters tend to say -

 

So if supporters of Proposition 8 aren't seeking special protection for sectarian religious views, what do they want? Simply put, to preserve a sound understanding of marriage, for the well-being of both spouses and the children their union may produce.  

The question that is begging to be asked is - "What about the well-being of both partners and the children their union may raise?" Are we going to ignore the well-being of both partners and the children their union may raise? If being raised in a same-sex household is so traumatizing for kids, wouldn't such kids need more societal support than kids in traditional families?

The supporters always seem to claim that being raised by a married man and woman is the ideal situation for kids. Even if this is the case, does that mean that families that aren't ideal don't deserve or need ANY societal help and recognition? The enemy of the "good" is NOT the "bad". It's the "ideal". Supporters seem to feel that if a family isn't ideal, it doesn't deserve or need ANY societal help and recognition. This harms the kids in such families, the same kids they claim are already harmed by being in a non-ideal family. This attitude is clearly "anti-family" and "anti- child".

Many straight couples aren't ideal parents or provide an ideal environment for raising children. They may have poor morals, do drugs, subject kids to second hand smoke, drink, belittle education, put the kids in day care every day, live in a poor/dangerous neighborhood, don't provide a well balanced diet, who promoted the sanctity of marriage by getting married, while drunk, and by an Elvis impersonator at a drive-thru wedding chapel in Vegas, etc...Why are such sub-ideal couples allowed to marry, but a lesbian couple, both with BYU degrees in Marriage, Family and Human Development, who are active in a church, who are actively involved in the child's local school, who live in a nice neighborhood, who have one parent stay home and make nutritious well balanced meals and raises the child with no day care, where neither parent smokes, drinks, does drugs, etc...is NOT allowed to marry? Which couple is more fit to raise a child and deserve the protections marriage provides spouses and kids? Which couple will get it however?

Having the State only issue "Civil Unions" would also be beneficial for both the Church and the State since the state would not have to issue a marriage license to anyone. Just marry them then and there. Sign on the dotted line and you're done. The state doesn't have to issue a license and then process more paperwork when the churches send in the signed forms. The churches would have no forms at all except any certificates they themselves generate. This cuts the paperwork in half for both Church and State. It streamlines everything.

If the LDS Church would push this solution, it would go a long way in healing the wounds and ill will the Church caused by our extensive support of Proposition 8 and Proposition 22. We doubt that that would occur based on a statement by Elder Lance B. Wickman, Church General Counsel in an interview he gave along side of Elder Dallin H. Oaks on the Church's Newsroom site. He stated - "If you have some legally sanctioned relationship with the bundle of legal rights traditionally belonging to marriage and governing authority has slapped a label on it, whether it is civil union or domestic partnership or whatever label it's given, it is nonetheless tantamount to marriage. That is something to which our doctrine simply requires us to speak out and say, 'That is not right. That's not appropriate.' " His statement is a clear call for the Church to continue getting involved in the realm of Caesar and is therefore contrary to the Lord's call for separating Church and State and also contrary to the scriptures. D&C 134:4 and 1 Cor. 10:29 denounce the use of our religious beliefs to prompt us to infringe upon the rights and liberties of others.

Just something to think about.