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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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I don't think you can analyze this independently of the national politics. In the 50's and 60's the South was solidly democratic although the DixieCrats as we called them then generally opposed the civil rights agenda. A coalition of Republicans and northern Democrats passed the legislation. Subsequently, the Republicans took over the South and their agenda changed as their base changed.
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From a practicing lawyer's point of view, the interesting question is whether phrasing your argument in terms of ordinary readers would help when one is trying to persuade a judge to read a statute contrary to his predilections. I suspect the short answer is that it couldn't hurt.
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I too once accepted the notion that same sex marriage should simply be allowed, but I've changed my mind and I no longer view civil unions as half-a-loaf but as a logical consequence of the separation of church and state. The State should not be able to tell the Church who they must marry, and the Church should not be able to tell the State who it should recognize as a couple. We lawyers are used to the notion that one word can mean the same thing in different contexts, but on an issue this divisive using two different words is far simpler in practice. While I'm comfortable saying that both the Church and the State can perform marriages, I think it is easier to just create a new word and say that Churches perform marriages and the State creates unions. That does leave what might be called a full faith and credit question. Currently the State fully recognizes marriage ceremonies performed by the Church as long as the civil license was obtained first. Whether Churches now recognize marriages performed by Judges has no simple answer. Furthermore, we have both civil and religious divorces which are completely separate and independent concepts. Many of the posts here have raised the question whether the State should be able to compel a Church to perform a same sex marriage. Would any court issue an order compelling a church or a clergyman to perform a mixed racial marriage? (The question only makes sense if we assume we are talking about a clergyman acting in a religious capacity and not about government officials refusing to perform one of the duties of their office because of their religious beliefs.) Talk about entanglements. Wouldn't any judge dismiss the suit and tell the plaintiffs to join him in chambers for the wedding ceremony?
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