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State of love not state's business

I don’t cry at weddings, not even my own. But when our friends Gina DuQuenne and Josh Willow were married in the band shell in Lithia Park during the festivities following the SOPride parade last Saturday, I got weepy. They had waited 15 years for the moment when their relationship could be validated by the state of Oregon as well as the wide community of love to which they belonged. The Rev. Leslie Becknell Marx, who officiated, represented both state and church. I never felt so powerfully the significance of the struggle for marriage equality.

Yet in this column I wish to address the real discomfort felt by that dwindling but still large percentage of the U.S. population opposed to gay marriage. Assuming you’re not just benighted homophobes, I wish to point you a way forward to protect an institution you believe you must protect.

Begin by asking the not-so-obvious question: Why does the state concern itself with marriage at all? Why isn’t marriage the sole province of the church?

Any distinction between church and state is less normal than we realize. Throughout most of human history such a distinction was inconceivable, and many nations today — especially Muslim nations — consider it wrongheaded. It was a startling innovation when Jesus supposedly said, in answer to a question meant to trap him into speaking treason against Rome, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.”

As a persecuted religious minority within the Roman Empire, Christians developed understandings of distinct loyalties. These continued after persecution ended and they began to assume power in the fourth century. In 494 Pope Gelasius I told the Eastern Roman Emperor Anastasius, “There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power.”

Putting aside the long, vexed history of church-state relations in Western Europe, what is of abiding interest is whether there is a meaningful human distinction between the two. I hold that there is. The church (not considered institutionally here, but psycho-spiritually) is the realm of love pursued through forgiveness, whereas the state is the realm of justice pursued through law.

I suggest that the state’s legitimate concern in the marriage of two people is no different than its concern in any other contractual relationship, such as a limited liability partnership. Its role is to specify and enforce the legal privileges and obligations of the contract, especially the care of property and children. These are hugely important matters, but they have nothing to do with love between the couple. That’s the concern of the church.

When the push for marriage equality began, a number of politicians — Barack Obama was one — espoused civil unions as a way to give gay and lesbian couples the same spousal benefits (e.g. filing joint tax returns and insurance coverage) as straight couples. There were two problems with this position. One was legal: It still treated gays and lesbians as a separate and unequal class, so it violated the Fifth Amendment right to equal protection of the law. The other was existential: It implied that gays and lesbians cannot love each other the way straight people can.

But if the state would stop issuing marriage licenses altogether and restrict itself to civil unions, these objections disappear. The state could then treat everyone equally. Regarding love, let each church do what it believes right. That is its prerogative. And gays and lesbians can be assured that they will nonetheless find multitudes of us to weep with joy at their weddings.

Herb Rothschild Jr. is chairman of the board of Peace House.