Walls separating church and state are crumbling in favor of the state. Every day, states intervene in church business, and activist judges overturn holy sacraments. Lacking legal standing, churches are not consulted and have no recourse. Rather than fighting this outrage, some churches are even campaigning to preserve this infringement on religious freedom by writing it into the constitution.
When a cleric pronounces a couple married, he creates a legal and religious union. When a judge grants a divorce, she dissolves the original union. If marriage started out as an institution that combines the religious and the legal, it is logically impossible to dissolve the legal union without also dissolving the religious union. Some churches overlook this, because “that’s the way it’s always been.” Others, like the Catholic Church, engage in some creative construction that allows them not to recognize the divorce. This is somewhat problematic: if the marriage was an expression of legal and religious union, at which point during the marriage did the legal and religious become untangled? This is a case where familiarity does not breed contempt. Instead, it blinds us to obvious faults.
Those fighting gay marriage may not want to admit it, but they have already lost. It is only a question of time. If the Supreme Court strikes down the Defense of Marriage Act or if Congress overturns it, federal gay marriage could be a fact within one or two years. In the absence of judicial or congressional action, generational politics will determine the time horizon: When grandpa dies, his vote will be replaced by a vote in favor of gay marriage. (Please note: I do not wish gramps to die. I want him to live a long and prosperous life, while providing him with great and affordable health care.)
Opponents of gay marriage have a choice, and either option has ample political precedent. They can keep the losing issue alive as long as possible, if only to raise money and to shore up the base. This faction wants to engage in a futile fight for a constitutional amendment. The alternative is to pivot. In New York, some Republicans did the latter and used the issue to shore up the separation between church and state. They did not go far enough. The current institution of marriage must be split into two different institutions that exist side by side. Marriage should be the prerogative of the church, with each religion deciding its own rules for marriage without any interference from the state. Marriage should be about religious and moral commitments between the partners, not about their legal rights and obligations. The latter are the purview of the state, which should only recognize civil unions.