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'Marriage for all'? How about marriage for none?

One solution to the same-sex marriage debate: Disentangle the awkward union between marriage and the state

If you happen to pay extremely close attention to internecine debates within the LGBT community, you may know that not everyone lined up in favor of pursuing marriage equality at the federal level. Much of the debate over the last decade was about strategy — avoiding backlash for premature demands, for instance. But there was also a substantive dispute about whether it was wise to reinforce further the bourgeois, religious and gender norms that marriage carries with it.

True, almost all LGBT people thought that if the state was going to offer marriage, same-sex couples should have a right to it. Many argued, however, that marriage was the wrong front line in the battle for equality. The battle should have been for the right to organize one's intimate life as one saw fit, without a thumb on the scales for such an old-fashioned institution.

In an ironic twist, the marriage skeptics may get another bite at the apple — thanks to the success of the marriage equality movement.

Here's how that could happen:

Assuming the conventional wisdom is correct, the Supreme Court will rule this month in Obergefell vs. Hodges that because the 14th Amendment guarantees equal protection under the law, states cannot ban same-sex marriage. Some conservatives, however, will almost certainly balk, and will cast about for a solution that would save them from outright rebellion against a court decree.

One idea already in the air is to try to disentangle the awkward union between marriage and the state.

In Alabama, a bill passed the state Senate that would stop the government from issuing marriage licenses or certificates — to anyone. Instead, couples who wanted to get married would just sign a legal contract and file it with a public official.

The Oklahoma House passed a similar bill, specifying that the state would no longer provide licenses for marriage. It would, however, continue to record certificates contracted before or solemnized by religious officials or judges.

Oklahoma Rep. Ted Ross, the author of the bill, acknowledged he was responding to the marriage equality movement and explained that "the point of my legislation is to take the state out of the process and leave marriage in the hands of the clergy."

Although it's doubtful that Ross' idea will catch on, states could make a go of it, legally speaking.

Notwithstanding the plausible argument that the Supreme Court has, in prior decisions, created a fundamental right to marry, states may contend that there can be no constitutional denial of equal protection to any person within its jurisdiction if they offer marriage licenses to no one, straight or gay.

Like the jurisdictions that bailed on public education and public pools when forced by the court to integrate, states distancing themselves from marriage will seem, to social liberals, like they're on the wrong side of history.

Yet it may be time to ask again whether the marriage skeptics didn't, after all, have an important point to make.

What marriage skeptics within the LGBT community wanted to achieve was a true separation of church and state, in which government would only recognize secular unions, free of gender scripts and millenniums of baggage.

Many wanted, essentially, to follow France, where civil marriage and religious marriage are wholly separate institutions, and the latter have no legal status. (All couples must have a civil ceremony at a council office; they can follow that up with a religious or secular celebration, or nothing at all.)

Some would have gotten rid of the idea of marriage altogether, instituting something closer to a "special friend" registry as the only state institution of coupling.

Alabama and Oklahoma lawmakers aren't trying to go quite that far, but — for all the wrong reasons — they could be at the vanguard of scrubbing top-down support for an institution that continues to affirm stale gender roles, that continues to keep the church too close to the state and that continues to encourage consumerism through costly wedding celebrations.

Marriage skeptics largely failed to predict that a successful marriage equality movement, culminating in a favorable decision from the Supreme Court, would get them somewhat closer to their goal. They may have to hold their noses when they see who it is that can help them dis-establish marriage from the state. But in the marriage debate as elsewhere, politics makes strange bedfellows.

Ethan J. Leib is Professor of Law at Fordham Law School.

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