The Supreme Court Building

If the test that former Supreme Court Justice O’Connor used to decide Establishment Clause issues relating to the separation of Church and State was:

“Encouragement”; i.e. did the State encourage a religion, and in doing so, made others not of that religion feel ‘excluded’;

Why, then doesn’t the concept of “marriage” (which is the religious ceremony piece of a civil union) violate the same Establishment Clause? Wouldn’t same sex couples feel excluded on the basis of a religious belief?

Perhaps the solution to arguments on same sex marriages is to remove the word “marriage” from the purview of government.  If the states and federal government only recognized civil unions, and left marriage to religious and other nongovernmental bodies it moots all the political arguments.

Under this regime, two Individuals who wished to be considered a unit for tax, inheritance, medical, child custody and all other legal and practical matters would enter a civil union.  This civil union could be “blessed” and become a marriage by whatever church, lodge, association etc. the parties may choose.  As far as the state is concerned, nothing except a civil union is required.  A marriage without an underlying civil union would have no force of law, and a marriage ceremony would have no effect on rights or privileges of the couple.  The governmental and legal benefits would accrue solely through the civil union.

This concept would simplify the law with respect to polygamy.  A person could be a member of only one civil union at any time.