In my short book on same-sex marriage I make the suggestion that marriage be split up into different types. I thought it would be worthwhile to write a bit more on this subject. While this suggestion might be regarded as satire (a rather inferior modest proposal) and I do tend to be a bit sarcastic, this is actually a serious proposal that I believe would solve some of the problems associated with the marriage issues.
While the acceptance of same-sex marriage has become mainstream in some Western countries, there are still those who strongly oppose it. While it is tempting to simply dismiss such people as mere bigots, it does seem worth considering that their values should be tolerated. Of course, even if a set of values should be tolerated on the grounds of the freedom of thought and belief it does not follow that those who have such values have the right to impose these values on others. In the case of those who oppose same-sex marriage, the fact that they consider it against their values does not entail that they have the right to make their values the law of the land.
Since nearly all (or all) of the resistance to same-sex marriage is based on religious beliefs, it is also worth considering the importance of the freedom of religion. While this is a sub-freedom of the more general freedom of thought and belief, it does seem worth considering religious freedom separately, if only for historic reasons. Interestingly, some who oppose same-sex marriage contend that making same-sex marriage legal imposes on their religious freedoms. However, this is obviously not the case. Making same-sex marriage legal does not, by itself, infringe on a person’s religious freedom. After all, the legality of same sex-marriage does not require that people get gay-married against their will (which would be a violation of freedom).
It could be contended that the legality of same-sex marriage could violate a person’s religious freedom in that a person opposed to same-sex marriage who had some sort of official capacity involving marriage in some way might thus be required to recognize the legality of same-sex marriage. For example, a justice of the peace in a state where same-sex marriage is legal would be required to recognize the legality of same-sex marriage. As another example, the clerk who handles marriage licenses in a state where same sex-marriage is legal would also be required to recognize its legality. This is, of course, not unique to same-sex marriage. In the United States, officials refused (and sometimes still refuse) to accept marriage between people of different ethnic groups (typically a black person marrying a white person).
On the one hand, cases such as these can be seen as violation of a person’s religious freedom. Using the justice of the peace example, if Sally’s religious belief is that same-sex marriage is an abomination in the eyes of God, then compelling her to marry Jane and Denise would thus seem to violate her religious freedom. After all, she would be compelled to act contrary to her religious beliefs.
On the other hand, these cases can be seen as not violating a person’s religious freedom. After all, having religious freedom is rather distinct from having the right to impose one’s religious beliefs on other people. In the example, Sally would be imposing her religious view on Jane and Denise rather than exercising her freedom of religion. By not marrying another woman and by regarding such marriages as abominations, Sally would be exercising her freedom of religion.
This can be countered by insisting that Sally’s religious freedom is being violated. After all, as a justice of the peace she is required to act contrary to her faith and she should have the freedom to refuse to do so.
The obvious reply is that she does have the freedom to do so. She can quit her job as justice of the peace on the grounds of her faith. To use an analogy, suppose that Velma believes that eating pork is a abomination on religious grounds. If Velma works at Betty’s BBQ Pit, it is not a violation of her religious freedom for Betty to expect her to serve barbecued pork to the customers. Betty can exercise her freedom by quitting her job and getting one at Paul’s Porkless BBQ Pit.
A counter to this could be based on the argument that a person who regards something a seriously violating their religious views would be wrong to simply walk away. Rather, they should refuse to allow it to occur. Going back to the analogy, suppose that a law was passed allowing human slavery again. If Velma was working at Betty’s Slave Auction and she opposes slavery on religious grounds, it would seem rather problematic to claim that Velma should simply quit. Rather, she should surely try to get the law changed. To avoid any confusion, my point here is not to draw a moral comparison between same-sex marriage and slavery. Rather, the point of using slavery is to use something that should be seen as obviously wrong and that should not be tolerated. To those who oppose same-sex marriage, same-sex marriage is regarded as being something that is obviously wrong and that should not be tolerated.
The sensible reply here is to contend that same-sex marriage is not wrong. That is, that the religious people who oppose it on religious grounds are in error. Interestingly, the same reply has been given by the defenders of slavery, namely that it is not wrong. Thus, a key part of the matter would involve sorting out the morality of same-sex marriage.
The easy and obvious way out is to note that legalizing same-sex marriage does not inflict any meaningful involuntary harm. In contrast, something like slavery obviously does inflict harm on people. As such, while a person would be right to prevent others from engaging in the practice of something like slavery, the same does not hold in the case of same-sex marriage. Even if same-sex marriage were wrong, the fact that it generates no harm to others would seem to entail that those who oppose same-sex marriage have no grounds on which to claim an obligation to prevent others from engaging in the activity. While saying “I have a moral right to stop you from practicing slavery because you are harming others” seems right, saying “I have a right to stop you from marrying someone of the same-sex because it is against my religion” seems mistaken.
Thus, those who oppose same-sex marriage on religious grounds do not seem to have adequate justification to deny others legal marriage (that is, the legal relationship recognized by the state). However, the appeal to religious freedom might still be able to provide legitimate grounds for religious groups denying others a certain type of marriage. The key concerns are, of course, what sort of marriage this might be and what might warrant religious discrimination.
Obviously enough, a religious group does not have a legitimate right to deny other people the legal right to marry because the marriage is against their religion. However, voluntary religious groups (like other voluntary associations) do have the right to set certain rules for their members. For example, a tabletop gaming group can set rules about what expansion books are allowed in the game. As another example, a track club might define the rules for their grand prix. As a fourth example, a couple that is “going steady” might set rules about their relationship, such as it being monogamous. These rules are based on the beliefs of the members and typically have no legal status. For example, if Sam is “going steady” with Ted, Sam cannot have Ted arrested simply because he went on a date with Sally. Such rules are often used to help define the identity of the group and set what is regarded as acceptable and unacceptable behavior (such as playing a dragon as a character). Provided that such rules are voluntarily accepted and not harmful, there is certainly nothing wrong with groups having such rules.
Turning back to the main issue of marriage, it seems reasonable to allow voluntary religious associations to have their own rules for marriage, just as it is reasonable to allow gaming groups to determine whether they require their members to dress in character (as an elf wizard, for example). However, just as gaming groups do not have a right to impose their views on others (making everyone dress up as fantasy characters, for example) neither do religious groups. As such, the marriage rules of a religious group cannot have legal status. However, they can be voluntarily accepted by the members of the group.
This, as I have said before, could be called a “theological union.” It would be a religious marriage as defined by the religious group in question and could have all the rules and requirements that the group wishes to accept (subject to the law, of course). However, the marriage would have no legal status at all-that is, it would grant no legal rights nor impose any legal obligations. So, for example, one church could forbid same sex theological unions while another could embrace them. People who do not agree with the theological unions of a group would be free to leave the group to join or create another that suits their values. Just as people can do so in other theological matters, such as whether or not women can be priests. Naturally, a couple that gets a theological union can also get a legal marriage (a civil union) that would give them all the legal rights and obligations as defined by the law.
Since these unions would have no legal status, there would be no discrimination in the legal sense and thus the specific rules of a religious group would not generally be a matter of concern for the state. This would respect religious freedom by allowing people to define their theological union rules as they see fit, without interference from the state. It would also respect the freedom from religion-that is, the right not to have other folks’ religion imposed on you. So, religious people who oppose same-sex marriage can say “if you are part of our religion that rejects same-sex unions, you cannot get same-sex theological unioned” but they cannot justly say “same-sex marriage is against my religion, so you can’t get a civil union that provides legally defined obligations and rights.”
This approach seems quite sensible, since it respects religious freedom while also protecting people from religious based impositions on freedom.