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June 24, 2011


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While I believe that sexual orientation issues should and eventually will be subject to strict scrutiny under the equal protection clause, I've come to believe that civil unions are the right solution to the same sex marriage divide. As lawyers, we are used the same word meaning something else in different contexts, but the general public is not.

Marriage is a status subject to different rules depending upon whether we are talking about civil law or the law of a particular religion. A marriage might be valid under the law of a given state but not valid under the rules of the Catholic Church or Orthodox Judaism. Divorce is also subject separately to civil and religious laws.

As a strict church state separatist, I do not think the state should be telling the church who they should and should not consider to be married. By the same token though, I do not think the church should be telling the state who can inherit in the absence of a will, or who can consent to medical treatment, or who can file joint tax returns.

Using one term, marriage, under multiple legal systems is confusing at best. When the civil law considers creating a procedure for marriages that would not be recognized by church law, passions are inflamed. I believe that coining a new word such as civil union is more than a compromise. Personally, I think I'd like to see statutes use the even more neutral term couple. Traditional marriage can be one route to the legal status of being a couple, but it need not be the only route.

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