Simple Solution to Same-Sex Civil ‘Marriage’

David French recently sparked a lively debate by addressing marriage in “Why I Changed My Mind About Law and Marriage, Again.” French, a conservative evangelical, explains his “flip, flop, and flip back again on civil marriage” (emphasis in original).

“I emphasize the word civil because my view on the religious nature of marriage has not changed,” says French. “It is a lifelong covenant between a man and a woman, sealed before God, and breakable only on the limited conditions God has outlined in his Word.”

Not surprisingly, French’s article has received considerable backlash. Dozens of articles, blog posts, and Twitter threads have pushed back against his change of heart. While some of the responses are motivated by personal dislike of French (some have said he’s not even a Christian), I think the general reaction is due to a broader frustration with evangelicals who share his viewpoint. And that group is growing larger every day.

A Gallup poll taken in May revealed that “support for legal same-sex marriage reflects steady increases among most subgroups of the population, even those who have traditionally been the most resistant to gay marriage.” One of the last remaining groups to hold the line are Americans who report they attend church weekly. But even in that group, 40 percent are in favor of such “marriages” and only 58 percent are opposed. Many of us are frustrated because we’re losing the argument even among people who share our faith and values.

The tide of public opinion is unlikely to be turned by publishing another article pointing out why French and the other 40 percent of churchgoers are wrong. Still, there’s a solution to the problem that is easily implementable and that should be acceptable to almost every Christian (and most secular Americans)—yet no one’s talking about it.

5-Legged Dog of Marriage Law

Before we get to the solution, though, we must point out why same-sex civil marriage is a problem in need of correction. The essential problem, as many people have consistently pointed out, is that there is not and can never be such as thing as same-sex “marriage.” This is true even for civil marriage. Here’s why.

Many of us are frustrated because we’re losing the argument about same-sex marriage even among people who share our faith and values.

As Abraham Lincoln was fond of asking, “If you call a dog’s tail a leg, how many legs does a dog have?” “Five,” his audience would invariably answer. “No,” he’d politely respond, “the correct answer is four. Calling a tail a leg does not make it a leg.”

Like Lincoln’s associates, many of our fellow citizens—including many Christians—appear to fall for the notion that changing a definition causes a change in essence. The attempt to change the definition of marriage to include same-sex unions is a prime example. Simply calling such relationships “same-sex marriages,” many believe, will make them marriages. Such reasoning, however, is as flawed as thinking that changing tail to leg changes the function of the appendage.

Consider the change that must occur in our tail/leg example. A dog’s tail cannot perform the same functions as its leg. He can’t use his tail to run or swim or scratch an itch. In order to use the term for both parts, we must discard all qualities that make a tail different from a leg. The new meaning of leg will require that we exclude any difference in form (for example, we can no longer say that a paw can be found at the end of a leg) or function (for example, legs are not necessarily used for standing). In other words, by redefining the term tail we have not made it equivalent in form or function to a leg; we’ve merely stripped the term leg of its previous meaning and made it as generic a term as “appendage.”

The same is true with the attempts to redefine marriage. Because marriage requires the specific form of a union of man and woman (Gen. 2:24), applying the term to same-sex unions alters the very concept of what a marriage is for and what functions it takes.

Changing the definition of marriage to include same-sex unions doesn’t make it more inclusive but rather more exclusive, since it requires excluding all the functions previously believed to be essential to the institution of marriage (for example, permanence, fidelity, and sexual complementarity).

But doesn’t that fall back on a religious argument? Can’t governments determine the standard for civil marriages? No, they cannot, because marriage is both a prepolitical and prereligious institution that was instituted by God before any formal government or religious institutions were created.

Neither the state nor the church has the authority to change the essential nature of marriage, since the institution was neither created by nor belongs to either the church or the state. Because the three institutions of church, state, and marriage have interdependent yet independent existence, they can decide whether to recognize each other’s legitimacy, but they cannot delineate each other’s boundaries.

Neither the state nor the church has the authority to change the essential nature of marriage, since the institution was neither created by nor belongs to either the church or the state.

In this way, the relationship is similar to nation-states. The U.S. government, for example, can decide to “recognize” the state of Israel, but it cannot redefine the country in a way that contracts or expands its borders. The U.S. either recognizes Israel as it defines itself or it rejects its legitimacy altogether.

Imagine if the U.S. government attempted to recognize Israel as “any geographic region with a land mass of 8,550 square miles.” That definition would certainly include the State of Israel but it would also include many regions that aren’t Israel. Changing the definition wouldn’t broaden the true meaning of “Israel.” Instead, it would only undermine the legitimacy of the U.S. government since it could prove to be untrustworthy in making proclamations that align with reality.

Changing the civil definition of marriage to include homosexual unions is yet another attempt to redefine reality. And reality always gets the final word.

Ruth’s Solution to the Problem

What do we do about homosexual couples who have ordered their lives around the legal fiction of same-sex marriage? French says, “I wanted gay couples to enjoy marriage-equivalent legal protections but without changing the legal definition of marriage.” That was always a possibility—and still is. We don’t need to attempt to redefine reality and call a tail a leg to achieve this objective. The solution is, and always has been, to promote civil unions.

The problem with civil unions—and the reason they weren’t more broadly endorsed by conservative Christians—is that they were previously promoted as endorsing homosexual couplings but they excluded relationships more worthy of legal recognition.

Rather than using them to provide legitimacy to homosexual relationships, civil unions should be completely desexualized and open to any two adults who desire to enter into a type of contractual relationship known as a mutual beneficiary contract.

Civil unions should be completely desexualized and open to any two adults who desire to enter into a type of contractual relationship known as a mutual beneficiary contract.

Our model for such civil unions comes from a most unlikely source: the Book of Ruth.

In that narrative, Ruth displays an amazing dedication to her mother-in-law Naomi. Recently widowed and trying to survive during a time of famine, Ruth chooses to stay with Naomi even though it meant she would almost assuredly live the rest of her life in poverty and eventually die alone. Such love and compassion is so remarkable that many modern readers assume the relationship must have been sexual (it’s a sad commentary on our times that all filial relationships are assumed to have an underlying sexual motivation).

But what if Ruth and Naomi lived in modern-day America? Would they be able to keep this commitment to each other without hindrance from laws that recognize only dependents, guardians, and spouses—including same-sex “spouses”? The law may very well provide them equal protection under certain circumstances, but with the labyrinth of rules and regulations, how would they know what applied?

Because of the Obergefell decision, the U.S. gives special preference to homosexual couples who have a marriage license yet denies or complicates similar legal agreements for family relationships similar to Ruth and Naomi. Any young gay man may enter into a civil union with an older man in order to confer benefits on their sexual behavior. But a nephew couldn’t enter into a similar contract with his disabled uncle in a way that would simplify his ability to provide care.

Old Idea Worth Recovering

This solution isn’t a new idea, nor is it a radical change.

When a form of desexualized civil unions known as reciprocal-beneficiary contracts was considered in Colorado in 2006, Carrie Gordon Earll, director of issues analysis for Focus on the Family Action, argued the bill would simply streamline arrangements that are already allowed under Colorado law:

These are contract agreements that people can already have. We’re talking about powers of attorney, medical decision making, what will happen with your will and your property when you die. All this bill does is say: If you have a need to be in one of these contractual relationships with someone you legally can’t marry, you could do this through a notarized contract filed with the county clerk and—instead of paying thousands of dollars to an attorney for individual contracts—you can have one packaged contract offered to you.

At the time, Earll and Focus on the Family were criticized by many of their fellow conservative Christians because it was feared the legislation would help normalize homosexual partnerships. This was a legitimate concern 16 years ago, when many gay rights activists begrudgingly considered civil unions a necessary waypoint on the path to full recognition of same-sex marriage. But subsequent Supreme Court decisions—starting with the decision to overturn the Defense of Marriage Act—made such a transition period unnecessary.

Desexualizing civil unions would alleviate the concerns of people, like French, who want to allow gay couples in civil “marriages” to enjoy the benefits they currently receive. It would also solve the other problem he addresses: “I wanted gay couples to enjoy the legally protected right to build a life together without creating a legal superstructure that ripped apart religious freedoms that are indispensable to the health of the republic and to the flourishing of countless millions of American lives.”

Desexualized civil unions wouldn’t be a threat to religious liberty in the way same-sex marriages are and will indefinitely continue to be. But even more importantly, it would preserve the government’s purpose of recognizing arrangements that bring stability to our society without endorsing immoral sexual behavior.

As a society, we should question why we’re extending social and government benefits to a group based on sexual behavior while excluding other, nonsexual unions that are more worthy. Why allow civil unions for the lesbian couple down the street but not for the widowed daughter and mother-in-law who live next door?

Why allow civil unions for the lesbian couple down the street but not for the widowed daughter and mother-in-law who live next door?

Government doesn’t create the institution of marriage; it only recognizes its value. It has no legitimate authority to redefine the term to make it more inclusive of sexual and numerical variations. Marriage should be reserved for the intimate, exclusive, sexually complementary relationship of one husband and one wife.

Similarly, the government also doesn’t create relationships in which two adults agree to take care of one another. But when stripped of any sexual connotation and reserved for a two-person, dependent, commitment-sharing relationship, the state should recognize their value and make it easier, not harder, for modern-day Ruths.